James Mukuha Gichane v The National Hospital Insurance Fund & 3 others
The bottom line
#Kenya's Court of Appeal confirmed you cannot sue for wrongful dismissal as a human rights violation; such disputes belong in labour and civil courts.
What this practically means
#Executive summary
#Key legal issues
#Whether termination of employment amounts to deprivation of property under section 75 of the repealed Constitution
It does not; employment does not fall within the meaning of 'property' under that section
The court adopted the dictionary meaning of property as tangible things over which rights of possession, use and enjoyment are exercised, noting intangible property such as trademarks and patents may qualify, but employment does not come within the section's amplitude. Following the High Court in A. Mbogholi Musagha, an office or employment confers no proprietary interest in the sense of a physical object. Accordingly, no breach of section 75 could arise from termination.
Whether an employment dispute can be prosecuted as a fundamental rights violation under section 84 of the repealed Constitution
No; an ordinary contractual/labour dispute must be pursued in the ordinary civil or labour courts, and a constitutional application on such facts is an abuse of process
The court held that the appellant's grievance related solely to the lawfulness of termination of employment. It endorsed the High Court's view that the framers of section 84 could not have intended constitutional provisions to replace ordinary contract law, and that constitutional remedies are only for actual or threatened violation of fundamental rights. Allegations of rights breach here were contrived and unsupported by evidence.
Duties of the Court of Appeal on a first appeal
The court re-appraises the evidence and draws its own inferences of fact, making due allowance for not having seen or heard the witnesses
Applying Selle v Associated Motor Boat Co, the court restated the first-appeal standard: it is enjoined to consider the evidence adduced, evaluate it and draw its own conclusions, while bearing in mind it has neither seen nor heard the witnesses. On that re-appraisal it found the High Court had correctly evaluated the evidence and reached the right conclusion.
Legal principles established
#- Employment is not 'property' within the meaning of section 75 of the repealed Constitution, so termination of employment cannot ground a claim of deprivation of property
- Ordinary tortious and contractual rights between employer and employee do not, without more, constitute breaches of fundamental rights enforceable by constitutional petition
Court orders
#- 1.Appeal dismissed
- 2.Costs of the appeal awarded to the respondents
- On appeal from
- High Court of Kenya at Nairobi
- H.C.C.C. No. 1150 of 2005
- Jurisdiction invoked
- First appeal from the High Court exercising original jurisdiction (fundamental rights claim under section 84 of the repealed Constitution); no specific appellate provision is cited in the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Kamunyu v Ndegwa & 2 others (Employment and Labour Relations Petition E013 of 2025) [2025] KEELRC 2914 (KLR)[2025] KEELRC 2914 (KLR)22 Oct 2025
Cite this brief
#Cite this brief
Caselaw, "James Mukuha Gichane v The National Hospital Insurance Fund & 3 others", Case Analysis (2017). Civil Appeal No. 215 of 2007. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/728/eng@2017-03-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.