Kenya Hospital Association Limited t/a the Nairobi Hospital v John Gichuru Ngunju
The bottom line
#Kenya's Court of Appeal confirmed the Nairobi Hospital unfairly dismissed its Chief Accountant, but cut his compensation from eight months' salary to three.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Judge was at fault in concluding that the dismissal of the respondent from employment was unfair and unjustified
- 2.Whether there is any basis for this Court to interfere with the reliefs granted
Key legal issues
#Whether the employer proved the reason for summary dismissal (alleged failure to attend a disciplinary meeting)
The appellant failed to prove the reason for termination; the only evidence was a discredited email, and neither the Finance Director nor Paul Mucheru testified.
Section 43 required the employer to prove the reason for termination on a balance of probabilities. The reason given in the dismissal letter was failure to attend a meeting with the Finance Director. The show cause memo of 13th August 2014 mentioned no meeting and concerned fraud, not the reason later given. The email of Paul Mucheru was discredited and its authors were not called as witnesses, so the reason was unproven and the termination unfair.
Whether the respondent was accorded a fair hearing before termination
There was no evidence beyond the discredited email that the respondent was notified of any disciplinary meeting; the fair-procedure requirement under sections 41 and 45(2)(c) was not met.
The learned Judge found as a fact that the respondent was not served with the show cause memo and was not called or notified of the purported disciplinary hearing. The Court of Appeal, re-appraising the evidence, found no evidence at all beyond the discredited email of Paul Mucheru that the respondent was notified of any meeting, and upheld the finding that the termination was unfair and unjustified.
Whether the award of 8 months' salary as compensation should stand
The trial judge did not manifestly consider the section 49(4) factors, particularly the short length of service; the award was set aside and substituted with 3 months' salary.
The factors under section 49(4) influencing the award of eight months were not manifest. The respondent had served only slightly over two years. Considering the three months' notice pay already awarded and the short service, an award of three months' salary as compensation would have sufficed, justifying interference with the judge's discretion.
Whether a claim for twelve months' salary could be urged in submissions without a cross-appeal
Absent a cross-appeal, the respondent's claim for the equivalent of twelve months' salary was misplaced.
The respondent's advocates sought enhanced compensation of twelve months' salary in written submissions without filing a cross-appeal. The Court held such a claim could not be entertained, as it would amount to expanding the relief granted below without a proper cross-appeal.
Legal principles established
#- An employer bears the burden of proving the reason for termination; failure to do so renders the termination unfair under section 45 of the Employment Act.
- The reason for termination is what the employer genuinely believed to exist at the time of termination, and the reason given in the dismissal letter binds the employer.
- Termination is unfair where the employer fails to prove it was effected in accordance with fair procedure, including notification of a disciplinary hearing.
Court orders
#- 1.Upheld the finding by the judge that the termination of the respondent's employment was unfair and unjustified
- 2.Upheld the award of three months' salary in lieu of notice
- 3.Upheld the award of salary for 14 days worked in August 2014
- 4.Upheld the award of 10 leave days earned and not taken
- 5.Set aside the award of 8 months' salary and substituted therefor an award of 3 months' salary as compensation
- 6.Ordered each party to bear its own costs of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Employment and Labour Relations Court of Kenya at Nairobi
- ELRC Cause No. 1575 of 2014
- Jurisdiction invoked
- First appeal under Rule 31(1)(a) of the Court of Appeal Rules (re-appraisal of evidence); appeal from the ELRC
Relief refused
#Respondent's claim for the equivalent of twelve months' salary (Kshs. 5,040,848.40) made in submissions without a cross-appeal
Absent a cross appeal, the claim for the equivalent of twelve months salary is misplaced
Costs
We order each party to bear its own costs of the appeal.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Based on our re-appraisal of the evidence the appellant did not prove, as required under Section 43 of the Employment Act, the reason for terminating the respondent's employment.
There was no evidence at all, beyond the discredited email of Paul Mucheru, that the respondent was notified of any meeting, least of all a disciplinary meeting, with the Finance Director.
We however hasten to observe that absent a cross appeal, the claim for the equivalent of twelve months salary is misplaced.
We set aside the award of 8 months' salary and substitute therefor an award of 3 months' salary as compensation. The appeal succeeds to that extent only.
We order each party to bear its own costs of the appeal.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Hospital Association Limited t/a the Nairobi Hospital v John Gichuru Ngunju", Case Analysis (2024). Civil Appeal 166 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1947/eng@2024-12-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.