Package Insurance Brokers Limited v Simon Gitau Gichuru
The bottom line
#Kenya's Court of Appeal found no discrimination against a sick employee but confirmed that dismissing him without a hearing was unfair.
What this practically means
#Executive summary
#Key legal issues
#Whether sending an ailing employee home and ultimately terminating his employment constitutes discrimination on the ground of health status under Article 27(4) of the Constitution and section 5(3) of the Employment Act
No discrimination was established; the respondent was treated as he was because of his actual ill-health and impaired performance, not because of a protected status, and he was the only sick employee so no differential treatment from comparable employees was shown
The court reviewed the sequence of events: the employer paid full salary throughout hospitalisation, increased the salary on resumption, and sought medical appraisal before acting. The respondent's reduced productivity flowed from his illness itself. Discrimination requires differential treatment on a prohibited ground; an employer acting on an employee's genuine incapacity, however insensitively, is not thereby discriminating. The trial judge's contrary finding could not stand.
Whether the summary dismissal of 1st August 2014 for gross incompetence and negligence was fair and lawful
The dismissal was unfair because the respondent was not given an opportunity to defend himself against the allegations and was not subjected to any disciplinary process, contrary to sections 43 and 45 of the Employment Act
The letter of termination pronounced a final verdict of summary dismissal without a hearing. Under section 43(1) the employer must prove valid reasons, and under section 45(2) a fair procedure. The court adopted the Kenfreight authority requiring that an employee be told the reasons for contemplated termination and be heard before the decision is taken. Due process was not followed, hence unfair termination.
What compensation was appropriate for the unfair termination
Twelve months' salary, the statutory maximum, was not warranted; the court substituted eight months' salary (Kshs 1,589,400), while upholding one month's salary in lieu of notice and July 2014 salary
The court noted the employer had shown substantial goodwill (paying salary throughout illness, raising salary, facilitating treatment) which waned over time, partly through the respondent's failure to avail a medical report. The progressive nature of the circumstances made the maximum award disproportionate. The contractual entitlement to one month's notice pay and the unpaid July 2014 salary were upheld as the respondent remained employed until 1st August 2014.
The mandate of a first appellate court re-evaluating trial evidence
A first appeal is by way of retrial; the appellate court must reconsider and evaluate the evidence and draw its own conclusions while making allowance for not having seen or heard the witnesses
Relying on Selle v Association of Motor Boats, the court restated that it is not bound by the trial judge's findings of fact where the judge failed to take account of particular circumstances or probabilities, or where impressions based on demeanour are inconsistent with the evidence generally. This framed the court's re-evaluation of both the discrimination finding and the quantum.
Legal principles established
#- An employer who blames an employee for misconduct and summarily dismisses him without according him an opportunity to defend himself or subjecting him to a disciplinary process terminates unfairly, and the maximum compensation of twelve months' salary is not automatic
- Where the employer fails to prove a valid and fair reason for termination, the termination is deemed unfair under section 45 of the Employment Act
Court orders
#- 1.Appeal partially allowed
- 2.Set aside the award of Kshs 5,000,000 being damages for discrimination
- 3.Substituted twelve months' salary in compensation with eight (8) months' salary, a sum of Kshs 1,589,400
- 4.Affirmed entitlement to one (1) month's salary in lieu of notice and salary for the month of July 2014
- 5.Each party to bear his/its own costs
- On appeal from
- Employment and Labour Relations Court
- Not stated in the judgment
- Jurisdiction invoked
- First appellate jurisdiction over the decision of the Employment and Labour Relations Court (the judgment describes the appeal as 'a first appeal')
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Roadtainers (msa) Ltd v Mumo Kiminza Munuve[2025] KECA 1302 (KLR)18 Jul 2025
- The Aga Khan University Hospital v Dr Edna Kemunto Gesore[2025] KECA 1214 (KLR)4 Jul 2025applied
Cite this brief
#Cite this brief
Caselaw, "Package Insurance Brokers Limited v Simon Gitau Gichuru", Case Analysis (2019). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/477/eng@2019-07-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.