Kasura v Kenyatta National Hospital (Cause 817 of 2018) [2023] KEELRC 2159 (KLR)
The bottom line
#Kenya's Employment Court upheld a nurse's dismissal for assaulting a patient in labour, ruling obstetric violence is gross misconduct justifying summary dismissal.
What this practically means
#Executive summary
#Key legal issues
#Procedural fairness of the dismissal
Procedure was fair under section 41 of the Employment Act; the Claimant was informed of the allegations, attended the hearing with a KUDHEIHA representative and was given an opportunity to defend herself
An oral complaint by the patient, escalated to the head of labour ward and followed by a face-to-face interview, sufficed to trigger disciplinary action. The Claimant was invited by letter dated 27th July 2015, heard on 28th July 2015, attended with her union representative, and the dismissal letter was copied to the union. The lack of a written complaint and the typographical error in the IP number did not prejudice her. The union raised no objection at any stage of the process.
Substantive fairness of the dismissal
There was valid reason for dismissal under section 43 of the Employment Act; the Claimant's assault of a patient in labour amounted to obstetric violence and gross misconduct
The patient was interviewed by the Assistant Chief Nurse and confirmed the assault. The Court characterised the Claimant's conduct as obstetric violence, referencing WHO statements, the Britez Arce v. Argentina decision, and constitutional guarantees of security and dignity under Articles 29 and 28. Beating a mother 'to help her push' violates human dignity and the employer's policy, justifying summary dismissal to prevent normalization of the vice.
Standard of identification of the offending employee
Disciplinary proceedings are not criminal identification parades; the patient's description of the nurse as having red hair did not invalidate the finding against the Claimant
The Court held that identification in disciplinary proceedings does not require proof beyond reasonable doubt. It sufficed that the Claimant was the nurse on night duty who received the patient and took her through the birthing process; the patient was familiar with her from admission. Whether the Claimant had red hair was not a significant fact.
Legal principles established
#- An employer may act on an oral complaint; it is not mandatory to wait for a written complaint before subjecting an employee to disciplinary process
- Discrepancies in documentation that do not prejudice the employee (a typographical error in a patient number) do not invalidate disciplinary proceedings
- Obstetric violence is gross misconduct justifying summary dismissal under section 43 of the Employment Act
Court orders
#- 1.The Claim is declined
- 2.No order on the costs
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment disputes (Employment Act; statement of claim filed 29th May 2018)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kasura v Kenyatta National Hospital (Cause 817 of 2018) [2023] KEELRC 2159 (KLR)", Case Analysis (2023). Cause No 817 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2159/eng@2023-09-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.