Moi Teaching and Referral Hospital Board v Yego & another (Appeal E013 of 2021) [2023] KEELRC 2167 (KLR)
The bottom line
#Kenya's Employment Court upheld a dismissal for dishonesty but ordered the hospital to pay suspended employees half salary during their suspension.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Respondents were unfairly terminated
- 2.Whether the Appellant followed the fair procedure in terminating the Respondents' Employment
- 3.Whether the Respondents are entitled to the withheld salaries and compensation
Key legal issues
#Whether there was valid reason (just cause) for the termination of the Respondents
Yes - the Respondents' acts of dishonesty in obtaining a second loan by falsely representing that the KCB loan had been cleared violated an essential condition of the employment contract
The Respondents were public officers bound by the Public Officers Ethics Act to maintain public confidence in the integrity of their offices. Representing to the employer that a Standard & Chartered loan would offset the KCB loan while diverting funds to private accounts and uttering a false letter amounted to dishonesty. Following McKinley v B.C. Tel. as adopted in JSC v Shollei, such dishonesty breached the faith inherent in the employment relationship, jeopardised the employer's MOU with the bank, and justified dismissal.
Whether the disciplinary procedure under section 41 of the Employment Act was followed
Yes - the employer was not obliged to notify the employees of their right to be accompanied; the omission to state the hearing's purpose occasioned no prejudice; the trial court erred in finding procedural unfairness
Section 41(1) entitles an employee to have a fellow employee or shop floor union official of choice present; it does not impose a duty on the employer to notify the employee of that entitlement. Elected shop floor officials represent all workers. The records showed the Respondents made representations, and given their pending suspension the invitation could only have concerned the charges against them, so no prejudice was caused.
Whether the Respondents were entitled to the withheld salaries and six months' compensation
Only half salary for the suspension period up to termination in January 2020 was payable; compensation for unfair termination was unavailable
An employer cannot unilaterally withhold the entire salary of an employee on suspension without contractual or statutory authority; the reasonable practice is withholding a portion, usually half. Since services were terminated in January 2020, half the withheld salaries were payable only up to that date. Having found valid reason and fair procedure, the relief of compensation for unfair termination was unavailable.
Legal principles established
#- There is no obligation on the employer to inform an employee facing disciplinary action of the right to be accompanied by a fellow employee or shop floor union official; the employer's role is only to facilitate the entitlement
- Dishonesty that violates an essential condition of the employment contract, breaches the faith inherent in the employment relationship, or is inconsistent with obligations to the employer constitutes just cause for dismissal
- An employee on suspension still holds a valid contract with the employer and may not have the entire salary unilaterally withheld unless sanctioned by law; a reasonable middle ground is withholding a portion, usually half salary
Court orders
#- 1.Finding that the trial court erred in law and fact in holding that the respondents were never accorded a chance to call a colleague or union official of choice and were never fairly heard; that ground of appeal succeeds
- 2.Respondents entitled to half the withheld salaries only up to January 2020 and not March 2020: Fibian Jelagat Kshs. 77,644 x 4 = 155,288; Doris Chepkorir Kshs. 75,074 x 4 = 150,148, subject to taxes and statutory deductions
- 3.Relief for unfair termination unavailable, the Court having found valid reason for termination and a fair procedure
- 4.Each party to bear their own costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Eldoret Magistrate's Court (Employment and Labour Relations Court)
- Case No. 53 of 2020 (Fibian Jelagat and Another v Moi Teaching and Referral Hospital)
- Jurisdiction invoked
- First appellate jurisdiction over the subordinate court's judgment in an employment dispute
Relief refused
#Compensation for unfair termination (6 months' salary awarded by the trial court)
The Court found there was valid reason for termination and the termination followed a fair procedure, so compensation under section 49 was unavailable
Withheld salaries for October 2019 to March 2020 in full
Respondents on suspension were only entitled to half salary up to the date of termination in January 2020, not to March 2020
Costs
The Appeal having been partially successful, each party to bear their own costs
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The respondents are therefore entitled as follows. a. Fibian Jelagat Kshs. 77,644 x 4 = 155,288 b. Doris Chepkorir Kshs. 75,074 x 4= 150,148 This award shall be subject to taxes and statutory deductions.
it is clear that there is no obligation on the employer to inform an employee facing disciplinary action to be accompanied by an employee or shop fioor union oficial of choice
The Court therefore is satisfied as found by the trial court that there existed a just cause for dismissal.
An employee on suspension still holds a valid contract with the employer until a decision is reached to terminate his or her service.
The Appeal having been partially successful, each bear their own costs.
Issues in the judgment
#Arithmetical inconsistency in the award: the orders state 'Kshs. 77,644 x 4 = 155,288' and 'Kshs. 75,074 x 4= 150,148', but multiplying each figure by 4 yields 310,576 and 300,296 respectively; the stated results equal multiplication by 2
The judgment's analysis (paragraph 62) records that the six months' compensation was unavailable because valid reason and fair procedure were found, yet the memorandum of appeal and internal ground (i) of the disposition framing appear to accept the trial court's finding of unfair termination ground succeeded on procedure - the disposition contains internally mixed findings
Section 44(4)(g) quotation is typographically disrupted in the judgment, with the introductory text and the subsection (g) text separated by fragmented numbering
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Moi Teaching and Referral Hospital Board v Yego & another (Appeal E013 of 2021) [2023] KEELRC 2167 (KLR)", Case Analysis (2023). Appeal from Eldoret Magistrate's Court Employment and Labour Relations Court Case No. 53 of 2020 (Fibian Jelagat and Another v Moi Teaching and Referral Hospital). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2167/eng@2023-09-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.