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Moi Teaching and Referral Hospital v. James Kipkonga Kendagor

(2019) JELR 98977 (CA)

Court of Appeal  •  Civil Appeal 159 of 2012  •  22 Mar 2019  •  Kenya

Coram
Milton Stephen Asike Makhandia, William Ouko, Agnes Kalekye Murgor

Judgement

JUDGMENT OF THE COURT

When an employer terminates the employment of an employee without notice or with less notice than that to which the employee is entitled by any statutory provision or contractual term, the termination amounts to a summary dismissal. As a general rule, no employer has the right to terminate a contract of service without notice or with less notice than that to which the employee is entitled by any statute or by contract term. The exception to this rule is that an employee may be summarily dismissed on account of gross misconduct. Section 44 (4)(a) of the Employment Act, 2007 provides inexhaustive lists of what may constitute gross misconduct. For our purpose subsection (4)(a) is relevant. An employee will be dismissed for gross misconduct if—

“(a) without leave or other lawful cause, an employee absents himself from the place appointed for the performance of his work.........”.

It is common factor that the respondent was employed by the appellant as a clinical officer…

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