The Supreme Court found that the Nakuru County Government violated the constitutional right to fair administrative action of Nakuru-based surgeon Dr Magare Gikenyi when it abruptly stopped his salary without prior notice or a hearing.
However, the apex court upheld earlier decisions by the Employment and Labour Relations Court and the Court of Appeal, declining to award Dr Gikenyi back pay or damages for alleged discrimination, constructive dismissal, and other constitutional violations.
The dispute arose from Dr. Gikenyi’s paid study leave, granted in 2013 to allow him to pursue a Master of Medicine degree at Moi University.
The four-year leave was scheduled to lapse in October 2017, but industrial action by university staff and medical unions delayed completion of his studies.
In November 2018, the Nakuru County Government stopped paying his salary, citing his failure to report back to work or formally apply for an extension of his study leave after it expired.
Dr. Gikenyi challenged the decision, arguing that his salary was halted without warning and without affording him an opportunity to be heard.
While agreeing that the county was legally justified in stopping the salary because Dr. Gikenyi remained absent from his duty station at Elburgon Nyayo Hospital without permission, the Supreme Court faulted the procedure used.
The judges found that the county failed to issue a mandatory “show cause” letter or accord the doctor a hearing before stopping his pay, in violation of Article 47 of the Constitution and applicable human resource policies.
Despite this finding, the court dismissed Dr. Gikenyi’s other claims.
It ruled that he was not constructively dismissed, ruling that he resumed duty in January 2020 and remains an employee of the county.
His discrimination claim also failed, with the court finding no evidence that ethnicity influenced the reinstatement of salaries for other officers.
The court further rejected claims of violation of dignity, economic rights, and servitude, holding that his financial difficulties were a result of unauthorized absence, and that his clinical attachment formed part of his academic programme, not unpaid labour for the county.
Dr. Gikenyi had sought Sh3.9 million in withheld salary for the period between November 2018 and January 2020, as well as Sh9 million in damages.
The court declined the claims, ruling that the salary already paid to him for the 13-month period after his study leave expired but before the stoppage was sufficient remedy for the procedural breach.
In its final orders, the Supreme Court partially allowed the appeal only on the issue of procedural violation, upheld the Court of Appeal judgment in all other respects, directed each party to bear its own costs to preserve the employment relationship, and ordered the refund of Sh6,000 deposited as security for costs to Dr. Gikenyi.
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