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Court of AppealDismissedCivil Appeal No. 215 of 2007· [2017] KECA 728 (KLR)

James Mukuha Gichane v The National Hospital Insurance Fund & 3 others

Court of Appeal of Kenya
3 March 2017
2,345 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~9 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The appellant, a former NHIF employee dismissed in 2003 for gross misconduct arising from an alleged fraudulent benefits claim, brought an Originating Summons under section 84 of the repealed Constitution seeking arrears of salary, damages and declarations, alleging that his dismissal and related police harassment violated his rights to property, life, dignity and protection from torture. The High Court (Wendoh & Emukule JJ) dismissed the application as an abuse of process, holding that the dispute was purely contractual and belonged in the ordinary civil courts. On appeal, the Court of Appeal, as a first appellate court, re-appraised the evidence in line with Selle v Associated Motor Boat Co. It framed two issues: whether the High Court properly evaluated the evidence, and whether the appellant proved a fundamental rights violation. The court held that employment is not 'property' within section 75 of the repealed Constitution, so termination could not amount to deprivation of property; that ordinary tortious and contractual rights between employer and employee do not constitute fundamental rights claims no matter how broadly rights are construed; and that treating unlawful dismissal as a breach of the right to life would be a dangerous precedent. The alleged violations were found contrived and unsupported by evidence. The court upheld the High Court's decision and dismissed the appeal with costs to the respondents. The judgment binds lower courts to treat employment-related grievances as matters for civil or labour courts rather than constitutional petitions, absent proof of genuine fundamental rights violations.

Key legal issues

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01

Whether termination of employment amounts to deprivation of property under section 75 of the repealed Constitution

Holding

It does not; employment does not fall within the meaning of 'property' under that section

Reasoning

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.

p. 4
02

Whether an employment dispute can be prosecuted as a fundamental rights violation under section 84 of the repealed Constitution

Holding

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

Reasoning

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.

p. 4
03

Duties of the Court of Appeal on a first appeal

Holding

The court re-appraises the evidence and draws its own inferences of fact, making due allowance for not having seen or heard the witnesses

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 1.Appeal dismissed
  2. 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

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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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.