Owino v Board of Management, Nakuru War Memorial Hospital (Cause E018 of 2023) [2026] KEELRC 1841 (KLR) (30 June 2026) (Judgment)

Owino v Board of Management, Nakuru War Memorial Hospital (Cause E018 of 2023) [2026] KEELRC 1841 (KLR) (30 June 2026) (Judgment) Neutral citation: [2026] KEELRC 1841 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nakuru Cause E018 of 2023 J Rika, J June 30, 2026 Between Joseph Odhiambo Owino Claimant and Board of Management, Nakuru War Memorial Hospital Respondent Judgment 1.The Claimant filed his Statement of Claim on 28th February 2023. 2.The Respondent hospital has been shut down for a number of years, due to political wrangles, and hearing of the Claim was adjourned on many occasions, on the ground that there was no one at the Respondent, to answer to the Claim. 3.The Court overruled the Respondent’s request for further adjournment on 23rd January 2025, when hearing opened. 4.The Claimant states that, he was employed by the Respondent as a Laboratory Technologist, on permanent and pensionable basis, in November 2009, at a basic monthly salary of Kshs. 20,000. 5.Hi salary was later increased to Kshs. 160,000 monthly. 6.He graduated to the position of Laboratory In-Charge and External Quality Assurance Officer. Later, he became the Laboratory Superintendent. 7.The Respondent used the Claimant’s professional licence to run its Laboratory. He claims that he expected to be paid Kshs. 200,000 monthly for this use, amounting to Kshs. 32 million, over a period of 160 months. 8.He went of annual leave on 17th December 2022, for a period of 26 days. He was to return on 17th January 2023. 9.The Respondent informed the Claimant on 14th January 2023, to extend his leave, to enable the Respondent reorganize its laboratory department. 10.On 28th January 2023, the Respondent issued the Claimant with a letter to show cause, over what was characterized as gross misconduct. 11.He responded on 29th January 2023. 12.Without any hearing, the Respondent summarily dismissed the Claimant, through a letter dated 3rd February 2023. No valid reason for the decision, was communicated. 13.His prayers are: -a.Declaration that termination was wrongful, unlawful and unconscionable.b.Salary for January and February 2023, at Kshs. 320,000.c.3 months’ salary in lieu of notice at Kshs. 480,000.d.Equivalent of 12 months’ salary in compensation for unfair termination, at Kshs. 1,920, 000.e.Service pay at 15 days’ salary for each of the 14 years of service, at Kshs. 1,120,000.f.Benefits due to the Claimant for use of his professional licence by the Respondent, at Kshs. 32,000,000.g.Payment by the Respondent to the Claimant for use of personal identity at the Laboratory, at Kshs.50,000 monthly, over the period of service, at Kshs, 8,000,000.h.Interest.i.Certificate of Service.j.Costs.k.Any other suitable relief. 14.The Respondent filed its Statement of Response, on 24th March 2023. It is conceded that the Claimant was employed by the Respondent, though employed initially on locum basis. He was not employed as Laboratory In-Charge. He was not engaged to set up the Laboratory. He was employed as a LaboratoryTechnologist. He did not hold other titles. 15.The Laboratory was in place before the Claimant was employed. He would not have applied for the job, if the Laboratory was not in place. 16.The Respondent had its own Laboratory registration and professional licence. The Claimant was required to have his individual professional licence. He did not place his licence or personal documents for use by the Respondent. Use of his phone to conduct official business was voluntary, and not compensable by the Respondent. 17.He was heard on 2nd February 2023 by the Respondent. Hearing is captured in the minutes of the meeting and also by audio recording, and CCTV footage. He was afforded an opportunity to respond to the letter to show cause. He responded. He visited the Respondent, and agreed to be heard on the same date, 2nd February 2023. 18.He procured items on behalf of the Respondent irregularly. 19.Termination was fair and lawful. The Respondent urges the Court to dismiss the Claim with costs, 20.The Claimant gave evidence on 11th February 2025, and called 1 witness, Evans Ondieki who gave evidence on 10th March 2026, closing the Claimant’s case. Patricia Njeri, the Hospital Matron, gave evidence for the Respondent on 14th April 2026, closing the hearing. 21.The Claimant adopted as his evidence-in-chief, his witness statement, documents [1-13] and additional documents [14-19]. He restated that he was employed in 2009 as a Laboratory Technologist. He managed the Laboratory alone initially. Another Employee was recruited 2 years later. The Claimant oversaw the gradual growth of the Laboratory. He was issued various fixed-term contracts. This was mere paperwork. He was on permanent and pensionable terms. He worked for 13 years. 22.His details were used by the Respondent to procure a hotline. He was to be compensated but was not. He went on annual leave in December 2022. He received a letter to extend leave. He was told that the Respondent was restructuring the Laboratory. In February 2023, he was dismissed without a hearing. He was told that there was an audit exercise in his absence. He was not involved in the exercise. 23.He was asked to explain why reagents valued at over Kshs. 1,000,000 had expired. He was asked to explain procurement of Laboratory machine, which had gone through regular local purchase order. 24.He was not invited for a disciplinary hearing. He asked the matron for audience with the Board. He was not heard formally, in the presence of his trade union representative. 25.Cross-examined, he told the Court that he was employed in 2009 on locum basis. He applied for the position of Laboratory Technologist. He started the Laboratory. It was not in existence when he applied for the job. One must be trained and registered, to work as a Laboratory Technologist. 26.He signed the various contracts. He received the letter to show cause. He replied on 22nd August 2022 under duress. He apologized for sourcing and procuring the Laboratory machine, without authority. 27.He was not called for disciplinary hearing. He requested for a meeting with the Board. It was not a disciplinary hearing. Letter to show cause issued before the meeting. He responded within a given period, on 29th January 2023. The Board was not present on this date The proposed meeting took place on 3rd February 2023. He was issued a cheque for terminal dues, which he declined. 28.The Claimant clarified on redirection, that the meeting he called for, was on 2nd February 2023. It was not a disciplinary meeting. The Respondent did not invite the Claimant to a disciplinary meeting. 29.His witness Evans Ondieki told the Court that he is a businessman. He adopted his witness statement, as his evidence-in-chief. He was a supplier to the Respondent, and familiar with procurement. Local Purchase Order [LPO], was raised through the matron. Ondieki would then deliver the requisitioned item. The Claimant was not involved with the procurement. LPO was raised by the matron. Ondieki delivered and raised his invoice. Accounts department paid him. It was not possible for Ondieki to supply and instal equipment, without the full knowledge of the Respondent’s management. 30.Cross-examined, he testified that he is not an Employee of the Respondent. He is a businessman, engaged in supply of Laboratory equipment. He had been involved with the Respondent from 2010. 31.In 2022 he was called by the matron and the Claimant. He did not witness the matron writing an LPO. He delivered some items which were received by the Claimant, not by the matron. 32.LPO was in form of a WhatsApp image. It was sent to Ondieki by the Claimant, not the matron. Ondieki was denied some payments by the Respondent, when he raised his invoice. He was not told why. He was advised by the matron to write a demand letter. He did so, and received payment later. 33.Redirected, Ondieki told the Court that LPO emanated from the matron. 34.The matron, Patricia Njeri, relied on her witness statement and documents [1-9] [10-11], in her evidence-in-chief, 35.She confirmed that the Claimant was employed by the Respondent as a Laboratory Technologist. He did not establish the Laboratory. The Respondent was offering laboratory services, before the Claimant was employed. 36.There were problems with the Laboratory sometime in 2022. The Board complained. The matron raised the issue with the Claimant. He brushed the matron off, saying stock-taking could not be done, because reagents were sensitive. He frustrated stock-taking. 37.The Respondent discovered there were missing or expired reagents. He kept brushing the matron off, saying she knew nothing about reagents. 38.In mid-August 2022, the Respondent found an invoice for Kshs. 622,000, for equipment it had not asked for. The Claimant in his explanation, alleged that the Respondent’s equipment was outdated and needed replacement. He was issued a warning letter by the matron, and apologized for it. 39.He disregarded procurement rules. The Board was supposed to be involved. 3 bidders would be shortlisted. The Board selected 1. Successful bidder would collect the LPO from the matron. 40.The Claimant was advised to return the equipment to the seller, because he irregularly procured it. The Respondent found out that he did not do so. The supplier visited the Respondent, asking for his payment. He informed the matron that he received LPO via WhatsApp from the Claimant. He was advised by the matron to engage the Board. The Board held its ground, advising the seller to take back his equipment. He engaged a Lawyer who made demand for payment. The Board decided to pay as demanded. 41.The Respondent carried out stock-taking while the Claimant was on annual leave, and found missing and expired reagents. Expired reagents were a health hazard. The Respondent also looked into purchases made by the Claimant, and discovered prices had been inflated by the Claimant, by about 50%. 42.The Respondent issued the Claimant a letter to show cause, while he was on leave. He visited the Respondent’s office to deliver his response to the matron. 43.He saw the Board Chair on 31st January 2023, and was given a date for disciplinary hearing, the 2nd February 2023. The meeting took place. The Claimant was present. The matron was, with 3 Directors. The Claimant was not barred from bringing along, a representative of his choice. 44.He evaded most questions. He stated that he was withdrawing his letter of apology. He stated that expired reagents were a normal occurrence in hospitals. The Respondent had no choice, but to dismiss the Claimant. 45.He was offered a cheque for his terminal benefits. He declined it, stating that it was peanuts. He was offered 1-month salary in lieu of notice. He was to be paid provident funds by Britam. 46.He was not a member of any trade union. The Respondent did not use his professional licence. It has its own corporate licence. He registered the Respondent’s mobile phone line, in his name. The Respondent did not ask him, to do so. 47.Cross-examined, the matron told the Court that the Claimant’s contract was permanent for 2 years. He headed the Laboratory department. There was no written notice of hearing. Hearing date was agreed between the Claimant and the Chair. 48.The Claimant did not request to be accompanied by a colleague to the hearing. The Respondent did not use his professional licence. There were other professionals in the Laboratory, each with their own professional licences. 49.Procurement was not regulated through a written policy. The Chair signed LPO. The matron countersigned. It was not proper for the Claimant to obtain LPO, copy and send to Ondieki. The matron would have to confirm if equipment needed to be replaced. She would communicate to the Board. 3 suppliers would be shortlisted. The matron would generate the LPO, after the successful bidder was identified. The Claimant’s response to the letter to show cause, was not satisfactory. Audit was carried out internally. 50.Redirected, the matron told the Court that the Claimant attended the hearing. Notice of the hearing is immaterial. The date was scheduled by the Claimant and the Chair. He did not complain about procedure. He had no right to procure on behalf of the Respondent. Expired reagent was harmful to patients. 51.The issues are whether the Claimant’s dismissal was based on fair procedure under Sections 41 and 45 of the Employment Act; whether it was based on valid reason or reasons under Sections 43 and 45 of the Employment Act; and whether the Claimant merits the remedies pleaded. The Court Finds: - 52.There is no dispute that the Claimant was employed by the Respondent in 2009, and was dismissed by the Respondent on 3rd February 2023. 53.He was employed as a Laboratory Technologist. Initially he may have been employed on locum [temporary] basis. Eventually he was offered truncated contracts, largely over periods of 2 years each. 54.He however was considered and described by the Respondent, as a permanent and pensionable Employee. A letter dated 6th June 2016 authored by the Respondent, addressed to Metropolitan Sacco, described the Claimant’s terms and conditions of service as permanent and pensionable. 55.The Claimant described the multiple limited-term contracts as mere paperwork, a position supported by evidence. The matron told the Court that the Claimant was on ‘’permanent 2-year contracts,’’ which would also align with the interpretation that the Claimant was on permanent and pensionable terms, the 2-year period contained in the various contracts, being of no significance. These contracts themselves indicated that they were applicable to ‘’all permanently employed administration / nursing staff.’’ 56.There was also a divergence of views on the Claimant’s job designation. He told the Court that he was the Laboratory-In-Charge, and later assumed the additional roles of External Quality Assurance and Laboratory Superintendent. 57.The Respondent pleads that the Claimant was a Laboratory Technologist, and other titles he claims to have had, are fictitious. 58.The matron however conceded that the Claimant headed the Laboratory department, and every department had an In-Charge. 59.It is fair to conclude that the Claimant was the Laboratory-In-Charge. The Board Chair wrote to the Claimant on 1st March 2015, appointing him as Laboratory Superintendent, effective on the same date. It is fair also, to conclude that the additional titles pleaded by the Claimant, were real, not fictitious, and were conferred on him by the Respondent. 60.Procedure: The Claimant received a letter to show cause from the Respondent, dated 28th January 2023. He was on annual leave. 61.He was required to explain various issues including expired reagents; irregular stock-taking; preference for suppliers whose pricing was above the market pricing; disregard for reputable companies whose pricing was fair; missing reagents; and procurement of biochemistry analyser machines, without Board approval. 62.He visited the Respondent on 30th January 2023, where he handed his response personally to the matron. 63.He was accompanied by colleagues, Kemunto, Njoki, Onyancha, Getuyo and Cheruyiot, when he handed over his response to the matron. 64.He then visited the Chair on 31st January 2023. There is evidence from both Parties that the Claimant and the Chair arranged to have a meeting with the expanded Board, on 2nd February 2023. 65.The Claimant states that he was not formally invited for a hearing, but in the view of the Court, it was not necessary to issue him a written invitation, having been agreed between him and the Chair, that he appears before the Board on 2nd February 2023. 66.He appeared before the Board Chair, 2 directors and the matron. He was taken through all the charges as listed in the letter to show cause. 67.He gave his response to all the charges. 68.In the end he was advised that the Board would deliberate, and communicate its decision the following day, 3rd February 2023. 69.He was issued the letter of summary dismissal on 3rd February 2023. The reasons for dismissal were stated in the letter. 70.He visited the matron on 30th January 2023, when he handed in his response to the letter to show cause, in the company of 5 colleagues. The Court agrees with the evidence of the matron, that he was not prevented from being accompanied by a colleague of his choice, at the disciplinary hearing. 71.Procedure was fair. There was no significant departure, from the minimum statutory standards of procedural fairness under Sections 41 and 45 of the Employment Act. 72.Justification: There were various allegations against the Claimant, as listed in the letter to show cause, but one stood out like a sore thumb, which the Court would wish to focus on. 73.He was accused of purchasing 2 biochemistry machines, without the approval of the Board. 74.He was said to have purchased the machines on 27th July 2022. 75.He received a warning letter, which appears to be undated, signed by Roger Joslyn, Chair to the Board. 76.He was told that the letter served as a warning for not following hospital protocol and guidelines, in purchase of the machines. He was told that the behaviour would not be tolerated in the future and the Board would take stern measures. 77.The Claimant accepted the warning, and wrote a letter of apology to the Board, dated 22nd August 2022. 78.The issue should have rested at that, a warning having been issued, and an apology tendered. 79.Why was the charge revived in the letter to show cause, and why was it turned into a major disciplinary ground, leading to dismissal of the Claimant? 80.Unless the purchasing of biochemistry machines without authority was repeated by the Claimant, after the warning issued by Roger Roslyn, Board Chair, there was no justification in regurgitating the charge in the letter to show cause and in the disciplinary hearing. 81.The warning served its disciplinary purpose, and revival of the same charge, exposed the Claimant to double jeopardy. 82.The other charges concerning reagents; preference of 3 expensive suppliers; disregard of reputable companies with low pricing; and poor storage of reagents were not substantiated. 83.Most of these accusations were based on a stock-taking exercise, which did not involve the Claimant. 84.He was advised that the Respondent was reorganizing the Laboratory department while on annual leave. He was not told that an audit or stock-taking of his department, would be carried out in his absence. Another Employee was assigned his role in his absence. He was asked to extend his annual leave, to give the Respondent room to reorganize his department. It was during this period that the Respondent gathered evidence about expired or missing reagents, and discovered that the Claimant preferred certain suppliers, while at the same time, the Respondent argued that as an Employee, he had no role in procurement and supply of goods. 85.The Claimant protested at the hearing that stock-taking was carried out in his absence. He also gave a reasonable explanation at the disciplinary hearing and in Court, that expired reagents are to be commonly found, even in major hospitals. He explained that most are usable even when expired, so long as they are properly stored. There was no evidence from any other Laboratory Technologist, to dispute this position. 86.It was not shown how the Claimant favoured 3 suppliers, while the Respondent denied that he had a role, in procurement. Procurement of the biochemistry machines by the Claimant, was faulted precisely on the ground that he exercised a role which was not his. The same could be said of the charge that the Claimant ignored reputable suppliers with good pricing. According to the Respondent at paragraph 15 [a] of the Statement of Response, ‘’the Claimant had no capacity to procure anything for the hospital and his responsibility was limited to his professional duties, as duly hired.’’ 87.What then, was the basis of accusing Claimant of preferring certain suppliers and disregarding others, if he had no role in procurement? 88.Termination was not based on valid ground, under Sections 43 and 45 of thee Employment Act. 89.Remedies: The claims that the Respondent used the Claimant’s mobile phone and professional licence, in conduct of its business, have no foundation. 90.If the Claimant offered such facilities to the Respondent, it was not a express or implied term of his contract, and no employment legal obligation, ensues from such voluntary arrangements. 91.The prayers for compensation to the Claimant by the Respondent for such alleged facilitation, in the sums of Kshs. 8,000,000 and Kshs. 32,000,000 respectively, [total Kshs. 40,000,000], is extortionist, and a worrisome trend, of an unfair termination claim, turned into a cash-grab venture. These prayers are declined. 92.He was offered notice pay equivalent of 1 month salary. There is no contract on record, supporting 3 months’ notice of termination claimed. The contract issued on 1st January 2021, gives a notice period of 1 month. The Claimant was offered this on his exit which he declined. The prayer for 3 months’ salary in lieu of notice at Kshs. 480,000, is rejected. 93.There was no provision for service pay in the Claimant’s contracts. He was actively subscribed to the N.S.S.F. He was not eligible for service pay, under Section 35 [6] of the Employment Act. His prayer for service pay, at Kshs. 1,120,000, is without merit. 94.There was no clear evidence concerning salary for February and March 2023, claimed at Kshs. 320,000. It was not part of his letter of demand before filing of the Claim. The item is declined. 95.He worked for 13 years and 3 months. He was issued a warning letter in August 2022. There is no evidence that he repeated the same offence, causing or contributing to, the reasons stated in justifying termination. He was on permanent and pensionable terms. He mitigated loss of his employment. He described himself in his oral evidence, as a Labtech, based in the UK. He appears to have gone to that labour market level, that Kenyans colloquially call ‘majuu,’ [stratosphere]. He mitigated loss of his employment. He moved away from the troubled War Memorial Hospital, Nakuru. 96.The Claimant is granted compensation for unfair termination, equivalent of 11 months’ salary at Kshs. 1,760,000. 97.Certificate of Service to issue. 98.Costs to the Claimant. 99.Interest allowed at court rate, from the date of Judgment, till payment is made in full.In Sum It Is Ordered: -a.It is declared that termination was unfair, for want of valid reason.b.The Respondent shall pay to the Claimant equivalent of 11 months’ salary in compensation for unfair termination at Kshs. 1,760,000.c.Certificate of Service to issue.d.Costs to the Claimant.e.Interest allowed at court rate, from the date to Judgment till payment is made in full. DATED, SIGNED AND DELIVERED ELECTRONICALLY AT NAKURU, UNDER RULE 68 [5] OF THE E&LRC [PROCEDURE] RULES, 2024, THIS 30TH DAY OF JUNE 2026.JAMES RIKAJUDGE