Sikuku v AIC Cure International Hospital Kijabe (Cause 1055 of 2018) [2024] KEELRC 354 (KLR)
The bottom line
#Kenya's Employment Court ruled a hospital unlawfully demoted and fired an employee without fair process, awarding her over Kshs 815,000.
What this practically means
#Executive summary
#Key legal issues
#Time bar of claims introduced by amendment
The new claims were not time-barred because under the doctrine of relation back the amended pleading speaks from the date of the original filing; in any event they were terminal dues.
The court invoked the doctrine of relation back, holding that claims embodied in an amended pleading arising from the same transaction as the original pleading are deemed filed when the original was filed, citing Thomas Owen Ondiek v National Bank of Kenya. It further noted the claims constituted terminal dues computed for payment by the Respondent, and could not therefore be termed time-barred.
Justification of the demotion
The demotion was not justified; it was a disciplinary sanction imposed without a proven fair process or substantiated allegations.
The court held that demotion being a disciplinary measure required a fair hearing. Beyond the Claimant's written response, there was no record of the disciplinary committee meeting of 13th January 2017, no notice of the hearing, and no advice of the right to be accompanied. The Respondent also failed to prove the substance of the allegations and did not exhibit any HR policy permitting demotion as a sanction.
Valid and fair reason for termination
The Respondent failed to prove justifiable reasons; the allegations in the termination letter were general and lacking in particulars and unsubstantiated by evidence.
Under Sections 43(1) and 45(2)(a) and (b) of the Employment Act, the employer bore the burden of proving valid and fair reasons. The termination letter cited lack of cooperation and refusal to carry out instructions without particulars, making it impossible to evaluate validity. No evidence substantiated the allegations; the Court of Appeal's approach in Ol Pejeta Ranching Ltd v David Wanjau Muhoro was followed.
Procedural fairness prior to termination
The termination was procedurally unfair; the Respondent failed to prove compliance with Section 41 of the Employment Act.
Although meetings were held on 28th July and 1st August 2017, there was no evidence of a notice to show cause or invitation to a disciplinary hearing, no proof the Claimant knew termination was contemplated, and no advice of the right to be accompanied. Moreover, the allegations at the 1st August meeting did not match the reasons later relied on in the termination letter, so the reasons did not flow from the hearing.
Reliefs
The Claimant was awarded notice pay, eight months' compensatory damages, unpaid salary, leave pay for 21 days and withheld house allowance; pension and discrimination claims were refused.
The award of eight months' compensatory damages took into account the length of employment and circumstances of termination. Withheld house allowance followed from the unjustified demotion. Leave pay was computed from the Respondent's records (12 prorated days plus 9 outstanding). Discrimination damages failed for want of pleading and proof; pension loss was anticipatory relief.
Legal principles established
#- Under the doctrine of relation back, a claim asserted in an amended pleading that arises from the conduct or transaction set out in the original pleading relates back to the date of the original pleading, so it is not time-barred if the original was filed in time.
- A demotion is a disciplinary sanction that can only lawfully be imposed after the employee has been taken through a fair disciplinary process.
- An employer bears the burden of proving valid and fair reasons for termination; general allegations lacking particulars cannot sustain a termination.
- Procedural fairness under Section 41 requires notification of the allegations in advance and the right of the employee to be accompanied at the disciplinary hearing.
Court orders
#- 1.Judgment entered in favour of the Claimant against the Respondent
- 2.Compensatory damages of Kshs 627,267.00 being eight (8) months of gross salary
- 3.One month's salary in lieu of notice of Kshs 78,408.40
- 4.Unpaid salary for two (2) days in August 2017 of Kshs 5,227.00
- 5.Unutilized leave pay for 21 days of Kshs 78,408.40
- 6.Withheld house allowance from January to August 2017 of Kshs 25,816.00
- 7.Total award of Kshs 815,127.00 with interest at court rates from the date of Judgment until payment in full
- 8.The Claimant shall have the costs of the suit
- 9.The Respondent to issue a Certificate of Service pursuant to Section 51(1) of the Employment Act
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act; court also invoked Article 159(2)(d) and Article 48 of the Constitution in the delivery order
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Sikuku v AIC Cure International Hospital Kijabe (Cause 1055 of 2018) [2024] KEELRC 354 (KLR)", Case Analysis (2024). Cause No 1055 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/354/eng@2024-02-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.