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ELRCPartially AllowedNot stated in judgment (Cause, Employment and Labour Relations Court)

Ithai v Kenyatta National Hospital (Cause 225 of 2019) [2024] KEELRC 387 (KLR)

Employment and Labour Relations Court of Kenya
29 February 2024
15,113 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~60 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ruled Kenyatta National Hospital unfairly fired a senior employee through a disciplinary process that broke its own rules, ordering re-engagement or Kshs. 3 million compensation.

What this practically means

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Executive summary

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The Claimant, employed by the Respondent Hospital from 2005 and confirmed in 2007, last served as Chief, Corporate Affairs and Communication and Head of Department. He was suspended in November 2018 over allegations of soliciting a bribe from Blue Media Images Limited officers and sexually harassing one of them. He was heard in May-June 2019 by a Staff Disciplinary and Advisory Committee of nine management officers and dismissed on 13th June 2019 for gross misconduct and loss of trust. His appeal to the Board was dismissed about a year later without a personal hearing, of which he learnt by chance. He sought declarations that termination was null and void, permanent injunctions, lifting of suspension, salary arrears of Kshs. 4,255,000, terminal benefits and costs. The Court found some remedies impracticable: the injunctions, the lifting of suspension and the bar on disciplinary proceedings were overtaken by events, and the loan-penalty prayer was unsupported by evidence. On the merits, the Court held that the Committee which heard him was not the mandated BOMSDAC under the Terms and Conditions of Service 2010-2011, and thus had no jurisdiction; its members were conflicted and biased; his trade union representative was gagged; his accusers never testified; and his appeal was handled unfairly contrary to the Fair Administrative Action Act and Section 45para 5 of the Employment Act. No valid reasons justified dismissal - the bribery and sexual harassment allegations were unproved, and the Claimant was victimized for insisting on compliance with the Executive Order and Treasury Circular in a flawed procurement. Termination was declared unfair and unlawful. Reinstatement was refused as statutorily barred and impracticable. The Court ordered re-engagement at the same salary level, or alternatively 12 months' gross salary (Kshs. 3,048,480) as compensation, withheld salary from suspension to the date the appeal was declined, no loss of continuity, costs to the Claimant and interest at court rates.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.whether some of the remedies sought by the Claimant are practicable
  2. 2.whether his contract of employment was terminated fairly, through the mandated and properly constituted Disciplinary Committee
  3. 3.whether termination was founded on valid reason[s]
  4. 4.what remedies if any, are merited

Key legal issues

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01

Whether the Claimant was heard by the properly mandated Disciplinary Committee

Holding

No. As Chief, Corporate Affairs and Communication and Head of Department, he should have been heard by the BOMSDAC; the ad hoc Committee of 9 management officers had no mandate, so the proceedings were a nullity

Reasoning

The governing Terms and Conditions of Service 2010-2011 establish three Staff Disciplinary and Advisory Committees. The Committee that heard the Claimant matched none of their prescribed compositions: none of its 9 members was identified as a Board member or ministry representative. Jurisdiction flows from constitutive or regulatory instruments, and a body without it cannot act. The dismissal decision was therefore void ab initio.

p. 19
02

Whether the disciplinary process met standards of impartiality and natural justice

Holding

No. The Committee comprised conflicted officers who prejudged the Claimant, gagged his trade union representative, and heard the case without the accusers testifying

Reasoning

The Chair headed Security and worked with HR on investigations; Nyachoti and Kihuga were involved in the subject matter. Members told the Claimant his fate was sealed. Section 41para 2 of the Employment Act requires an employer to hear representations of the accompanying person, which was refused. Mwenesi and Katiku, whose statements alleged bribery and sexual harassment, never appeared to be confronted, and the Court of Appeal authority on untested accuser statements was applied.

p. 20
03

Whether the handling of the Claimant's appeal was fair

Holding

No. The appeal was delayed about a year, the Claimant was never invited to be heard by the full Board, and he learnt of the outcome by chance

Reasoning

Under the Terms and Conditions, appeals from BOMSDAC go to the full Board of Management. Section 4 of the Fair Administrative Action Act and Section 45para 5 of the Employment Act require procedural fairness in appeals, including a personal hearing. Keeping the Claimant in darkness for a year violated his rights to fair administrative action under Article 47 and fair labour practices under Article 41.

p. 22
04

Whether there were valid reasons justifying dismissal

Holding

No. The bribery and sexual harassment allegations were unproved; the accusers gave no evidence at the hearing or in court, and the Claimant's insistence on procurement compliance (Executive Order No. 6 and Treasury Circular No. 20/2015) suggested victimization

Reasoning

The dismissal letter rested on 'high probability' that money changed hands, a generalized conclusion unsupported by evidence. Mwenesi's electronic messages, alleging the Claimant demanded money and 'our lady', were one-way and untested. No prosecution followed the police report. The Claimant had embargoed a flawed tender, and top managers pressured him to sidestep procurement law, indicating he was victimized for his stand against corruption.

p. 25
05

What remedies are merited

Holding

Declaration of unfair and unlawful termination; re-engagement at the same salary (reinstatement being statutorily barred after 3 years); withheld salary from suspension to the date the appeal was declined; alternatively 12 months' gross salary as compensation (Kshs. 3,048,480), at the Claimant's election

Reasoning

Reinstatement under Section 12para 3[vii] of the E&LRC Act is only available within 3 years of dismissal, which had elapsed, and the imprecise job title made it impracticable. Re-engagement under Section 49para 3[b] of the Employment Act is workable and accommodates restructuring. Salary arrears for unrendered service would be unjust enrichment, but withheld suspension salary was payable as promised. Compensation of 12 months reflects 13 years of unblemished service and no contributory fault.

p. 27

Legal principles established

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  • Administrators must obey their own regulations; a disciplinary committee constituted contrary to the applicable human resource instruments has no power over the employee and its decision is a nullity
  • The right to a fair hearing extends to appeals against administrative decisions; an appellate body must personally hear the appellant, guided by the Fair Administrative Action Act
  • Handling of an appeal against dismissal carries the same test of procedural fairness as the primary hearing under Section 45para 5 of the Employment Act
  • Members of a disciplinary committee who are potential witnesses or are otherwise conflicted ought not to sit, and prejudgment or intemperate conduct compromises a fair hearing
  • Employment remedies must be proportionate to the economic injuries suffered and not aimed at unjust enrichment

Court orders

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  1. 1.It is declared that termination of the Claimant's contract by the Respondent was unfair and unlawful
  2. 2.The Respondent shall re-engage the Claimant to work comparable to that in which he worked, immediately prior to termination, or other reasonably suitable work, at the same salary level
  3. 3.The Respondent shall pay to the Claimant withheld salary from the date of suspension, to the date his Appeal on dismissal, was declined by the Respondent
  4. 4.The period from the date the Appeal was declined, to the date of re-engagement, shall be treated as a period of unpaid leave
  5. 5.There shall be no loss of continuity in the years of service
  6. 6.In the alternative to the remedy of re-engagement, the Respondent shall pay to the Claimant equivalent of 12 months' salary in compensation for unfair and unlawful termination, at Kshs. 3,048,480
  7. 7.The Claimant shall indicate in writing to the Respondent, within 30 days of delivery of this Judgment, which of his two alternative prayers he elects
  8. 8.The Respondent to comply in full with the Judgment of the Court within another 30 days of receiving the Claimant's communication, in default the Claimant to pursue appropriate enforcement
  9. 9.Costs to the Claimant
  10. 10.Interest allowed at court rate, from the date of Judgment till compliance in full

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Employment and Labour Relations Court Act, Section 12 (Employment Act claims; unfair termination)

Relief refused

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Prayers [a][i] and [b] - permanent injunctions restraining recruitment to Head/Manager of Corporate Affairs and Communication positions

Impracticable; the Head of Marketing and Communication position had been advertised and filled with the Court's go-ahead, and the Respondent cannot retain two Heads of Communication

p. 15

Prayer [c] - lifting of suspension

Suspension was already lifted by the Respondent at the time of dismissal on 13th June 2019

p. 15

Prayer [d] - bar on subjecting the Claimant to disciplinary action pending DCI investigations

Disciplinary proceedings took place and ended in dismissal; the order is overtaken by events

p. 15

Prayer e[ii] - payment of penalties on the Claimant's bank loan with National Bank of Kenya

No evidence the Respondent was privy to any loan agreement creating such an obligation

p. 16

Reinstatement (primary remedy)

Statutorily barred under Section 12[3][vii] of the E&LRC Act, being more than 3 years after dismissal, and impracticable given the imprecise job title

p. 26

Salary arrears of Kshs. 4,255,000 from date of suspension

Claimant rendered no service; award would be disproportionate and amount to unjust enrichment

p. 27

Terminal benefits and 81 days annual leave at Kshs. 387,000

Not specifically proved; accrual of leave days not established and terminal benefits not specified

p. 27

Costs

Costs to the Claimant; interest allowed at court rate from the date of Judgment till compliance in full

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Without adherence to the Terms and Conditions of Service, the Disciplinary Committee constituted by the Respondent, was a collection of persons with no power at all, over the Claimant.
p. 19jurisdiction of disciplinary committees
Administrators must obey their own regulations. Where they constitute Disciplinary Committees, they must do so in conformity with the law and the applicable human resource instruments.
p. 19duty of administrators to follow internal regulations
The right of fair hearing is not restricted to the primary disciplinary hearing; it must be extended on appeal against an administrative decision.
p. 21fair hearing on appeal
The Court is persuaded that there were no valid reasons, to justify dismissal.
p. 25validity of reasons for dismissal
a. It is declared that termination of the Claimant's contract by the Respondent was unfair and unlawful.
p. 28final orders - declaration
b. The Respondent shall re-engage the Claimant to work comparable to that in which he worked, immediately prior to termination, or other reasonably suitable work, at the same salary level.
p. 28final orders - re-engagement
f. In the alternative to the remedy of re-engagement, the Respondent shall pay to the Claimant equivalent of 12 months' salary in compensation for unfair and unlawful termination, at Kshs. 3, 048, 480.
p. 28final orders - alternative compensation

Issues in the judgment

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minor

The judgment refers inconsistently to the disciplinary hearing dates - the dismissal letter and findings refer to 17th May 2019 and 3rd June 2019, while the pleadings state the hearing took place on 22nd May 2019 and 3rd June 2019

minor

Typographical errors throughout (e.g. 'Afiairs' for 'Affairs', 'ofiencers/ofiices'), and an apparent date error in a memo described as dated 31st May 2016 in the context of 2018 events

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Ithai v Kenyatta National Hospital (Cause 225 of 2019) [2024] KEELRC 387 (KLR)", Case Analysis (2024). Not stated in judgment (Cause, Employment and Labour Relations Court). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/387/eng@2024-02-29

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.