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ELRCPartially AllowedPetition dated 14th July, 2023 (ELRC)· [2024] KEELRC 1880 (KLR)

Ronoh v Kenya Electricity Generating Company PLC (KENGEN) & another (Employment and Labour Relations Petition E014 of 2023) [2024] KEELRC 1880 (KLR)

Employment and Labour Relations Court
18 July 2024
HWHellen Wasilwa
5,689 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~23 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ruled that stopping a sick employee's salary before following HR procedures violated her constitutional dignity and labour rights.

What this practically means

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Executive summary

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The petitioner, a civil engineer employed by the 1st Respondent, a state corporation, since 2006, petitioned claiming violation of her rights under Articles 27, 28 and 41 of the Constitution. She suffered from type 1 diabetes, asthma and, per later medical reports, major depression. She alleged that after being allowed to work from home during Covid-19 she was sidelined, that her transfer to Olkaria was unfairly imposed despite her medical condition, that she was sent for psychiatric assessment, and that her salary was stopped without a disciplinary process or hearing. She sought declarations of violation, unpaid salaries, 12 months' salary for constructive/unfair dismissal, notice pay, salary to retirement, exemplary and aggravated damages, and a certificate of service. The 1st Respondent countered that she had 460 sick-off days between 2016 and 2022, presented a forged sick-off sheet, was examined by consent by several doctors and the National Medical Board, refused further assessment, and deserted work, justifying salary stoppage under its HR manual; it also argued the salary-related claims were moot since salary had been reinstated under interim orders. The court framed two issues: whether constitutional rights were violated and whether remedies were due. It held there was no discrimination under Article 27 since an engineer's work is site-based. However, it found the Respondent failed to exhaust its own HR procedure for retirement on medical grounds before stopping her salary, which was inhuman and violated Articles 28 and 41. The court awarded Kshs 1 million in damages with costs to the petitioner. The judgment was delivered virtually on 18th July 2024 by Lady Justice Hellen Wasilwa.

Key legal issues

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01

Whether failure to allow work-from-home amounted to discrimination under Article 27

Holding

Not discriminatory - the work of a civil engineer is practical and site-based

Reasoning

The court accepted the Petitioner was sick and had been examined by doctors and the medical board, but found that her role as a civil engineer required physical presence at sites, making work-from-home impracticable. The Respondent's refusal to assign remote work was therefore justified and did not constitute less favourable treatment based on her medical condition.

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02

Whether stopping the Petitioner's salary violated Articles 28 and 41

Holding

Yes - the stoppage was inhuman and breached dignity and fair labour rights

Reasoning

The court found the Respondent had a HR procedure for dealing with employees unfit for service on medical grounds (referral to a medical board and ratification) but did not exhaust it before unilaterally suspending the Petitioner's salary. Given her diagnosed work-related depression, the stoppage was inhuman, degrading and contrary to Articles 28 and 41 of the Constitution.

p. 11
03

Whether the Petitioner is entitled to the remedies sought

Holding

Partially - Kshs 1 million damages awarded; other prayers not granted

Reasoning

Having found breaches of Articles 28 and 41, the court exercised its discretion under Article 23(3) to award Kshs 1 million in damages. The other reliefs (unfair dismissal compensation, notice pay, arrears, salary to retirement, certificate of service) were not granted, the salary-related claims having been overtaken by the reinstatement of salary under interim orders.

p. 11

Legal principles established

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  • An employer who suspends payment of a sick employee's salary before exhausting the HR procedure for retirement on medical grounds acts inhumanely and in breach of Articles 28 and 41

Court orders

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  1. 1.A declaration that the Respondents' stopping of the Petitioner's salary was inhuman and against Article 28 and Article 41 of the Constitution
  2. 2.Damages of Kshs 1,000,000 awarded to the Petitioner for breach of Articles 28 and 41
  3. 3.Costs of the petition awarded to the Petitioner
Jurisdiction invoked
Articles 22(1), 23(1) and 258 of the Constitution of Kenya

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, "Ronoh v Kenya Electricity Generating Company PLC (KENGEN) & another (Employment and Labour Relations Petition E014 of 2023) [2024] KEELRC 1880 (KLR)", Case Analysis (2024). Petition dated 14th July, 2023 (ELRC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1880/eng@2024-07-18

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