Kasina & another v Kenya Hospital Association t/a The Nairobi Hospital & another (Cause 2140 of 2014) [2023] KEELRC 2899 (KLR)
The bottom line
#A Kenyan court awarded a dismissed Financial Controller 12 months' salary because the hospital fired him without a genuine hearing, confirming employer disciplinary processes cannot be pre-decided.
What this practically means
#Executive summary
#Key legal issues
#Whether termination was procedurally fair under section 41 of the Employment Act
The termination was procedurally unfair: the show cause and disciplinary hearing were combined, indicating a predetermined outcome, and the Claimant was not heard.
The court found the Respondent had already determined a disciplinary hearing would follow irrespective of any explanation, so the show cause was a formality. The short notice between the invitation of 8th October 2014 and the hearing on 13th October 2014 made it impossible for the Claimant to mount a defence, and his request for a short adjournment was ignored. The termination therefore violated section 41 and the constitutional right to fair administrative action.
Whether the counterclaim declarations on the constitutionality of sections 41 and 49 of the Employment Act should issue
The counterclaim failed in its entirety.
The court held section 41 accords with Articles 27 and 41 of the Constitution; the 12-month compensation cap is within permissible constitutional restraints and may even be inadequate in egregious cases; a finding permitting reinstatement does not bar compensation; and fair administrative action must be substantive, not a ticking-boxes exercise.
Whether the Claimant was entitled to maximum compensation of 12 months' salary
Yes; the court awarded 12 months' gross salary (Kshs. 6,882,792/-) under section 49(1)(c).
Given the predetermined disciplinary panel, the indefinite suspension, and the failure to accord a fair hearing, the termination was egregious and justified the maximum compensation under section 49(1)(c) read with section 49(4).
Legal principles established
#- Section 41 of the Employment Act accords with the Constitution; failure to hear an employee before termination opens the employer to compensation under section 49 and is not unconstitutional.
- Compensation under section 49(1)(c) is not limited to the contractual notice period; the statutory cap is 12 months' salary, and malice in dismissal may justify the maximum.
- A predetermined disciplinary process renders a show-cause exercise a mere formality and the ensuing termination unfair.
Court orders
#- 1.A declaration that the termination of the Claimant's employment was unfair and unlawful
- 2.Award to the Claimant of Kshs. 6,882,792/- being 12 months' salary as compensation under section 49(1)(c) of the Employment Act
- 3.Certificate of service in terms of section 51 of the Employment Act
- 4.Costs of the suit to the Claimant
- 5.Interest at court rates on the compensation sum from the date of judgment till payment in full
- 6.Dismissal of the Respondent's counterclaim with no order as to costs
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (sections 41, 43, 44, 45, 49 and 51)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kasina & another v Kenya Hospital Association t/a The Nairobi Hospital & another (Cause 2140 of 2014) [2023] KEELRC 2899 (KLR)", Case Analysis (2023). ELRC Claim dated 1st December 2014 (Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2899/eng@2023-11-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.