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ELRCPartially AllowedCause No 384 of 2018· [2024] KEELRC 2139 (KLR)

Muthengi v Kenyatta National Hospital Board (Cause 384 of 2018) [2024] KEELRC 2139 (KLR)

Employment and Labour Relations Court
31 July 2024
LNLINNET NDOLO
2,243 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ordered Kenyatta National Hospital to pay a former security guard over Kshs.1.2 million for unfairly dismissing him after an excessively long unpaid suspension.

What this practically means

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Executive summary

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The Claimant, employed by Kenyatta National Hospital as a security guard from 1994, was suspended without salary in November 2013 over allegations that he aided a patient to abscond without settling a hospital bill. A notice to show cause followed six months later, a disciplinary hearing before the Staff Disciplinary and Advisory Committee (SDAC) in August 2014, and dismissal in July 2015. He claimed unlawful and unfair termination, challenging the SDAC's mandate, the denial of an opportunity to examine the evidence against him, and the prolonged unpaid suspension, and sought declarations, unpaid salary, severance, twelve months' compensation or reinstatement, a certificate of service and costs. The Respondent defended the process, invoking Section 9 of the State Corporations Act as authority for the SDAC, and maintained the dismissal was justified. The court accepted the SDAC had delegated authority but found the dismissal unfair: the charge was not proved; the Claimant remained on unpaid suspension for one year and eight months without explanation, amounting to a disguised termination in breach of fair labour practices; and he was denied an opportunity to cross-examine the employees who implicated him. The court awarded twelve months' salary in compensation (Kshs.572,184) and the withheld salary for November 2013 to July 2015 (Kshs.710,682), with interest and costs. Severance pay and reinstatement were refused, the latter for lapse of time.

Key legal issues

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01

Mandate of the SDAC to discipline the Claimant

Holding

The SDAC had delegated authority from the Respondent and could undertake disciplinary action; the challenge to its mandate failed

Reasoning

The Respondent invoked Section 9 of the State Corporations Act empowering it to establish committees. The court read the SDAC's role as delegated authority specifically conferred by the Respondent, so it declined to invalidate the process on mandate grounds and instead examined the process on its merits.

p. 4
02

Whether the dismissal was lawful and fair

Holding

The dismissal was unfair: the charge was not proved, there was inordinate unexplained delay, unpaid suspension amounting to disguised termination, and denial of the right to cross-examine witnesses

Reasoning

The Claimant was on unpaid suspension for one year and eight months with no explanation from the Respondent, drawing a negative inference. The disciplinary record was a litany of statements with no witnesses availed for cross-examination. The charge was not proved and the suspension was a disguised termination in breach of fair labour practices.

p. 5
03

Remedies entitlement

Holding

12 months' compensation and withheld salary awarded; severance and reinstatement refused

Reasoning

Compensation of 12 months was granted considering the Claimant's twenty-one years of service, the Respondent's mishandling and inordinate delay, and denial of the right to be heard. The withheld salary was admitted in the dismissal letter. Severance lacked basis, and reinstatement was barred by the lapse of time since separation in 2015.

p. 5

Legal principles established

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  • Prolonged disciplinary proceedings amount to an unfair labour practice under Article 41(1) of the Constitution
  • Suspension should not attract adverse action such as withholding salary unless there is a statutory basis
  • An employee must be given an opportunity to cross-examine witnesses against him in disciplinary proceedings

Court orders

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  1. 1.12 months’ salary in compensation of Kshs.572,184
  2. 2.Unpaid salary for November 2013–July 2015 of Kshs.710,682, total Kshs.1,282,866
  3. 3.Interest at court rates from the date of judgment until payment in full
  4. 4.Costs of the case to the Claimant

Authorities

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Legislation

  • State Corporations ActSection 5(3)
  • State Corporations ActSection 9
  • Kenyatta National Hospital Board Order, 1987
  • Employment ActSection 44 clause 4(g)
  • Public Officer Ethics Act (2003)Part III section 9(a) & (g)
  • Constitution of Kenya, 2010Article 41(1)

Cases cited (3)

  • Stephen Kaburia v Kenyatta National Hospital Board & another
    [2016] eKLR
  • Rebecca Ann Maina & 2 others v Jomo Kenyatta University of Agriculture and Technology
    [2015] eKLR
  • Kefa Omae Obiri v Marianist Organization
    [2018] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes (Employment Act 2007; unfair termination 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, "Muthengi v Kenyatta National Hospital Board (Cause 384 of 2018) [2024] KEELRC 2139 (KLR)", Case Analysis (2024). Cause No 384 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2139/eng@2024-07-31

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