DOW v Attorney General (Cause 89 of 2013) [2014] KEIC 98 (KLR)
The bottom line
#Kenya's employment court ruled that retiring a visually impaired police officer instead of retraining him was disability discrimination, awarding Kshs 3 million.
What this practically means
#Executive summary
#Key legal issues
#Whether retiring a visually disabled police officer on medical grounds without reasonable accommodation amounted to discrimination under the Persons with Disabilities Act
Yes - the retirement was discriminative and contravened the claimant's fundamental rights and freedoms under the Act and international instruments
The court noted the respondent did not deny special duties existed or that the claimant performed them unaided for nine years. It doubted training was impossible, observed the respondent led no evidence of cost, and held a reasonable employer should have assisted the claimant to gain skills, including at public institutions for the blind. Failure to provide reasonable accommodation before retiring him was discrimination contrary to sections 15 and 22 of the Act.
Whether the Force Standing Orders could justify the retirement
No - standing orders contrary to the Constitution and ratified international law cannot stand
The court held that the non-employment character of police service imposes a higher obligation to protect officers who acquire disabilities during service. Force Standing Orders were brought to question on this basis; no legislation may continue to run contrary to the Constitution or ratified international law, which forms part of municipal law.
Quantum of compensation for discrimination
Kshs 3 million awarded, mitigated by the pension already received and guided by Anthony Kipkorir Sang v The Hon Attorney General
The claimant sought Kshs 10 million relying on foreign disability discrimination awards. The court found damages mitigated by the pension the claimant continues to receive, and, persuaded by Mbaru J's award of Kshs 3 million in a comparable disability discrimination case, awarded the same figure.
Legal principles established
#- Loss of employment on grounds of disability should be a last resort where alternative duties could be assigned with or without training and rehabilitation
- Even where the repealed Constitution did not recognise disability as an element of discrimination, the Persons with Disabilities Act filled that lacuna
Court orders
#- 1.Declaration that the respondent terminated the claimant's employment prematurely and in violation of section 22 of the Persons with Disabilities Act
- 2.Declaration that the respondent has discriminated against the claimant and or violated and continues to violate section 15 of the Persons with Disabilities Act
- 3.Award of Kshs 3 million being compensation for premature termination of services and discrimination on ground of disability
- 4.Costs and interest from date of filing this suit
- Jurisdiction invoked
- Jurisdiction of the Industrial Court to determine human rights violations in employment matters, as urged by claimant's counsel (no specific constitutional article stated in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "DOW v Attorney General (Cause 89 of 2013) [2014] KEIC 98 (KLR)", Case Analysis (2014). Cause No 89 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keic/2014/98/eng@2014-04-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.