Council, University of Kabianga & Another v Godfrey Odebero Nakhaya
The bottom line
#Kenya's Court of Appeal confirmed employers must pay disability allowances to registered disabled employees and cannot cut such benefits without notice or a hearing.
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 respondent is entitled to the allowance
- 2.Whether the appellants acted properly in terminating the allowance
- 3.Whether the doctrine of exhaustion of remedies applied to the respondent's case
Key legal issues
#Whether the respondent, with 30% permanent visual impairment in one eye, qualified for the disability allowance
He qualified: registration with the Council met the primary requirement, complete blindness is not a prerequisite, and the label of the allowance was immaterial.
Section 2 of the repealed Persons with Disabilities Act defines disability to include any visual incapability adversely impacting social, economic or environmental participation. The respondent was registered with the Council, satisfying the SRC circular's primary criterion. The circular placed eligibility determination on the accounting officer based on type and degree of disability, and gave the employer options to provide a guide or pay the allowance. The nomenclature of the allowance was immaterial since its sole purpose was to enable the respondent to commute to work.
Whether the employer was obliged to pay an allowance not provided for in the respondent's terms of service
Yes, because the disability arose during employment and section 15(5) of the Act imported the principle of reasonable accommodation.
The respondent's terms of service could not have anticipated a disability that did not exist at employment. Section 15(5) of the Act required employers to effect reasonable modifications to accommodate persons with disabilities, importing the CRPD principle of reasonable accommodation via Articles 2(5) and 2(6) of the Constitution. The SRC circular augmented the Act to bridge the gap between disabled and able-bodied officers, engendering inclusivity and substantive equality.
Whether the driver the respondent hired qualified as his personal guide, and whether that claim was properly before the court
The driver qualified as a personal guide, and the claim was properly raised through the supplementary affidavit; affidavits are pleadings in constitutional litigation.
The respondent deposed in his supplementary affidavit that his disability forced him to hire a driver, in response to the appellants' replying affidavit denying he had a guide. The appellants could have sought leave to file a further affidavit or cross-examine but chose not to, making their complaint belated and an afterthought. The appellants did not dispute the assertion that he had difficulties driving.
Whether the termination of the allowance violated the right to fair administrative action
Yes; withdrawal without notice, hearing, or written reasons violated Articles 47(1) and 47(2), the contention being uncontroverted.
The allowance was approved and paid for over a year, then withdrawn without notice or reasons. Article 47 embodies natural justice and the right to fair hearing. The appellants did not respond to this contention, leaving it uncontroverted. Reasonable accommodation requires dialogue and consultation with the affected person on a case-by-case basis rather than assumptions, which the appellants failed to do.
Whether the doctrine of exhaustion barred the petition
No; the appellants did not demonstrate the Labour Office could offer an efficacious remedy including declarations of constitutional violation and mandamus.
While the exhaustion doctrine is settled law, the emerging jurisprudence requires the alternative remedy to be effective and efficacious. The respondent's petition raised constitutional violations of fair administrative action and discrimination which the Labour officer could not adequately address. The appellants did not demonstrate that the Labour Office could issue declarations of violation or orders of mandamus as sought.
Legal principles established
#- Registration with the National Council for Persons with Disabilities satisfies the primary eligibility requirement for payment of the disability allowance under the SRC circulars; the allowance need not be provided for in the employee's terms of service where disability arose during employment.
- Withdrawal of an approved benefit without notice, opportunity to be heard, or written reasons violates Articles 47(1) and 47(2) of the Constitution.
- The exhaustion doctrine does not bar constitutional relief where the alternative forum cannot offer an efficacious and effective remedy for the violations alleged.
- In constitutional litigation, pleadings include affidavits and responses; an affidavit made on oath has evidential value.
Court orders
#- 1.Appeal dismissed with costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Employment and Labour Relations Court at Kisumu
- ELRC Petition No. E006 of 2020
- Jurisdiction invoked
- First appeal from the Employment and Labour Relations Court (constitutional petition jurisdiction under Article 162(2) as invoked by the ELRC)
Relief refused
#Appellants' prayer to allow the appeal with costs
Court found no merit in any of the four grounds of appeal
Costs
Appeal dismissed with costs to the respondent
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.
The upshot is that we find no merit in this appeal and we hereby dismissed it with costs.
In the circumstances, we agree with the ELRC that the respondent was eligible and entitled to payment of the allowance.
Upon being registered, he became entitled to the benefits and privileges available to persons with disabilities under the Constitution, the Act and any other law, including the circulars issued by SRC.
It was however withdrawn without notice; without giving him an opportunity to be heard and without written reasons for the action.
the alternative remedy should be effective and efficacious otherwise the court retains original jurisdiction to hear the dispute if the relief sought cannot be adequately addressed by the available alternative forum in the circumstances of the particular case.
in constitutional litigation, pleadings include affidavits and responses which may include grounds of opposition and an affidavit made on oath has evidential value.
Issues in the judgment
#Delivery date recorded as 2026, an apparently impossible future date
Judge name inconsistently rendered between coram and signature block
Duplicate enumeration of Article 47 in the list of violated rights
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Council, University of Kabianga & Another v Godfrey Odebero Nakhaya", Case Analysis (2026). Civil Appeal No. E027 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1874/eng@2026-09-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.