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ELRCPartially AllowedCause No E494 of 2020· [2024] KEELRC 1020 (KLR)

Kiilu v Kenya hospital Association Ltd t/a The Nairobi Hospital (Cause E494 of 2020) [2024] KEELRC 1020 (KLR)

Employment and Labour Relations Court
15 April 2024
NMNzioki Wa Makau
2,448 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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The Claimant, employed as a Senior Accountant from December 2015, was suspended on 15th January 2020 over alleged poor management of cashiers, fraudulent transactions and pending invoices, and was summarily dismissed on 28th February 2020 after a second disciplinary hearing, the first panel having cleared him. He sued for a declaration that the dismissal was unfair and unlawful, notice pay and damages. The Respondent maintained that the Claimant was responsible for monitoring cashiers' transactions, that fraud of Kshs. 646,844/- and Kshs. 1,316,747.54 occurred under his watch, and that he was accorded due process, including two hearings and a right of appeal, besides his history of poor performance warnings. The court held that the Claimant's job description contained no reference to supervision of cashiering services, that he was in fact a whistle-blower who saved the Respondent money, and that the Respondent's weak systems permitted the thefts. Relying on Abisalom Ajusa Magomere and Walter Ogal Anuro, the court found the dismissal substantively unjustified and procedurally flawed. It declined the maximum 12 months' compensation owing to the Claimant's relatively short service, awarding 6 months' salary under section 49, and limited notice pay to the two months provided by the contract rather than the three sought. Judgment was entered for the Claimant with costs and interest from the date of judgment.

Key legal issues

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01

Validity of the reason for termination

Holding

The Respondent failed to prove the grounds of misconduct attributed to the Claimant; the alleged supervisory duties were not in his job description

Reasoning

The court examined the Claimant's job description signed in December 2015 and found no reference to supervision of cashiering services. The Claimant was in fact a whistle-blower who alerted the Respondent to a fraudulent cheque. The Respondent's weak systems, not the Claimant's negligence, permitted the thefts.

p. 4
02

Procedural fairness and pre-determination

Holding

The Claimant was dismissed without regard to the procedure under section 41, and the second disciplinary panel's adverse outcome after the first panel cleared him supported the claim of pre-determination

Reasoning

The Claimant was heard by a first panel which exonerated him, after which the Respondent constituted a second panel that dismissed him. Following Abisalom Ajusa Magomere, disregard of section 41 procedure rendered the termination unfair and unlawful.

p. 4
03

Quantum of relief

Holding

Compensation capped at 6 months' salary under section 49 and notice pay limited to 2 months per the contract

Reasoning

Although the Claimant sought the maximum 12 months' compensation, the court considered his relatively short service of about 4 years and awarded 6 months. Notice pay followed the contractual term of two months rather than the three months claimed.

p. 4

Legal principles established

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  • For a termination to pass the fairness test, there must be both substantive justification and procedural fairness
  • An employee cannot be held accountable for misconduct in functions outside his job description

Court orders

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  1. 1.A declaration that the Claimant's termination from employment was unfair and unlawful
  2. 2.Compensation in terms of section 49 capped at 6 months salary - Kshs. 989,856/-
  3. 3.Kshs. 329,952/- being 2 months' notice
  4. 4.Costs of the suit to the Claimant
  5. 5.Interest on the sums in (b) and (c) at court rates from the date of judgment till payment in full

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 41
  • Employment Actsection 36
  • Employment Actsection 41 (incl. s.41(1))
  • Employment Actsection 43
  • Employment Actsection 45
  • Employment Actsection 49

Cases cited (3)

  • Freddy Kipkorir Lang'at v Co-operative University of Kenya
    [2021] eKLR
  • Abisalom Ajusa Magomere v Kenya Nut Company Limited
    [2014] eKLR
  • Walter Ogal Anuro v Teachers Service Commission
    [2013] eKLR
Jurisdiction invoked
Article 41 of the Constitution and the Employment Act (first-instance employment claim)

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, "Kiilu v Kenya hospital Association Ltd t/a The Nairobi Hospital (Cause E494 of 2020) [2024] KEELRC 1020 (KLR)", Case Analysis (2024). Cause No E494 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1020/eng@2024-04-15

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