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ELRCDismissedPetition as amended on 21st February 2023 (ELRC, Nairobi)· [2023] KEELRC 2384 (KLR)

Amuguni v Registered Trustees of the Sisters of Mercy t/a Mater Misericordiae Hospital (Petition E054 of 2022) [2023] KEELRC 2384 (KLR)

Employment and Labour Relations Court
5 October 2023
LNLINNET NDOLO
2,799 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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A hospital employee lost her Kshs. 20 million claim because she sued in the wrong court and relied on WhatsApp screenshots without the required certificate.

What this practically means

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Executive summary

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The Petitioner, an employee of the Respondent Hospital, sued over two connected grievances. First, an erroneous COVID-19 certificate issued by the Hospital in December 2021 caused her detention in the United States, cancellation of her five-year US visa and deportation; she sought declarations of rights violations and compensation of Kshs. 20,000,000 plus legal costs of her visa appeal. Second, she challenged her summary dismissal on 28th December 2022 for absenteeism, contending the Respondent's CEO had authorised her travel to a rugby tournament in Dubai via the Cabinet Secretary for Sports, evidenced by WhatsApp screenshots. The Respondent admitted the certificate error but blamed her lack of diligence, denied hostility and arm-twisting, and justified the dismissal as unauthorised absence processed through due process. The Court held that the COVID-19 certificate claim lay outside its specialised jurisdiction under Article 162(2)(a) and Section 12(1) of the ELRC Act, since the Petitioner sued the Hospital as a healthcare provider, not as an employer; that portion was struck out. The WhatsApp screenshots were ruled inadmissible for want of a certificate under Section 106B(4) of the Evidence Act, leaving the Petitioner without proof of authorisation to be absent; the dismissal was substantively justified under Section 43 and procedurally fair under Section 41 of the Employment Act. The entire Petition was dismissed with each party bearing their own costs.

Key legal issues

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01

Jurisdiction over the COVID-19 certificate claim

Holding

The claim relating to the COVID-19 certificate was incompetent and struck out as outside the Court's specialised mandate

Reasoning

The Court examined Section 12(1) of the ELRC Act and Article 162(2)(a) and found nothing in the pleadings showing the Petitioner presented herself for the COVID-19 test in her capacity as an employee. She sued the Respondent as a healthcare provider, not as an employer; her employment was coincidental and could not confer jurisdiction.

p. 7
02

Admissibility of WhatsApp screenshot evidence

Holding

The WhatsApp messages were inadmissible for want of a Section 106B certificate

Reasoning

The screenshot of WhatsApp messages was electronic evidence under the Evidence Act. Section 106B(4) requires a certificate identifying the electronic record and the device producing it, signed by a responsible person. No such certificate was produced, following established authority.

p. 5
03

Substantive fairness of dismissal

Holding

Unauthorised absence constituted a valid reason for termination under Section 43 of the Employment Act

Reasoning

With the WhatsApp evidence excluded, the Petitioner adduced no proof of authorisation to travel to Dubai. It was not disputed she was absent from work, so the Respondent had a valid reason for termination.

p. 5
04

Procedural fairness of dismissal

Holding

The Respondent complied with Section 41 of the Employment Act

Reasoning

The Petitioner was issued a show cause letter dated 2nd December 2022, responded on 7th December 2022, and was invited to and attended a disciplinary hearing on 13th December 2022 before dismissal on 28th December 2022, satisfying procedural fairness requirements.

p. 6

Legal principles established

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  • Electronic evidence such as WhatsApp screenshots is inadmissible unless accompanied by a certificate under Section 106B of the Evidence Act
  • The mere fact that a claimant is an employee of a respondent does not confer ELRC jurisdiction over disputes unconnected to the employment relationship

Court orders

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  1. 1.The Petitioner's claim relating to the COVID-19 certificate is struck out for want of jurisdiction
  2. 2.The claim for unlawful and unfair termination of employment is disallowed
  3. 3.The entire claim as contained in the Petition is dismissed
  4. 4.Each party to bear their own costs

Authorities

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Legislation

  • Constitution of KenyaArticle 29, 39(2), 41(1), 43(1)(a), 162(2)(a)
  • Evidence ActSection 106B(4)
  • Employment and Labour Relations Court ActSection 12(1)
  • Employment ActSections 41, 43, 44(a), 44(e)
  • Retirement Benefits Actnot specified

Cases cited (2)

  • Samwel Kazungu Kambi v Nelly Ilongo & 2 others
    [2017] eKLR
  • Peter Ngethe Ngari t/a PNN Funeral Services v Standard Group Limited PLC & another
    [2020] eKLR
Jurisdiction invoked
Article 162(2)(a) of the Constitution and Section 12(1) of the Employment and Labour Relations Court Act

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Amuguni v Registered Trustees of the Sisters of Mercy t/a Mater Misericordiae Hospital (Petition E054 of 2022) [2023] KEELRC 2384 (KLR)", Case Analysis (2023). Petition as amended on 21st February 2023 (ELRC, Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2384/eng@2023-10-05

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.