Salary stoppage not equal to dismissal, Supreme Court rules

The Supreme Court has ruled that the stoppage of an employee’s salary does not automatically amount to dismissal, settling a long-running dispute between a Nakuru County doctor and his employer over unpaid wages and alleged constitutional violations.

The dispute traces back to Dr Magare Gikenyi’s four-year paid study leave granted with effect from October 22, 2013, to pursue a Master of Medicine degree in General Surgery at Moi University. 

His leave was to lapse on October 21, 2017. 

The doctor argued that industrial actions by university lecturers, doctors, and nurses disrupted his studies and prolonged his completion date. 

He maintained that he had informed the County’s Chief Officer of Health of the delays and denied absconding from duty.

However, in November 2018, he discovered that his salary had been stopped after his bank card was declined for insufficient funds. 

He wrote several letters seeking clarification, but claimed they went unanswered. 

He subsequently moved to the Employment and Labour Relations Court (ELRC), asserting that the stoppage of his salary and alleged termination of his services were unlawful and unconstitutional.

Before the ELRC, Dr Gikenyi argued that the respondents’ actions violated the Constitution. 

He contended that the decision to stop his salary was taken without notice or an opportunity to be heard, contrary to Article 47 on fair administrative action. 

He further claimed the move amounted to constructive dismissal and discrimination, noting that two of his colleagues facing similar circumstances had their salaries reinstated after engaging the County.

“The appellant argued that his visa card was declined due to the stoppage of his salary, and the same not only occasioned him distress and humiliation but also affected his standing in public and his family,” the judgment reads.

The County Government, the Public Service Board, and other officials countered that the doctor’s study leave expired in October 2017 and that he neither sought nor obtained approval for its extension. 

They relied on the Human Resource Policies and Procedures Manual for the Public Service, 2016, which provides: 

Where a public officer is absent from duty without leave or reasonable or lawful cause for a period exceeding twenty-four (24) hours, and is not traced within a period of ten (10) days from commencement of such absence, the officer’s salary shall be stopped, and action to dismiss the officer initiated.”

They maintained that after learning from Moi University that the doctor had been suspended at some point, they deemed him to have absconded from duty and lawfully stopped his salary. 

They insisted his employment had not been terminated.

In a judgment delivered on July 24, 2020, the ELRC found that a salary stoppage was not synonymous with termination. 

The court held that the doctor’s study leave was for a fixed period and that although industrial action was beyond his control, he was required to formally seek extension. 

Having failed to do so, the judge noted, his absence after October 21, 2017, was without approval.

The court concluded the employers were justified in stopping his salary and dismissed claims of constructive dismissal and discrimination.

It nevertheless awarded him incremental salary arrears amounting to Sh4,694,756 and unpaid salary of Sh525,196.45 for the period after he resumed duty in January 2020, with interest.

“Aggrieved with ELRC’S decision, the appellant filed an appeal in the Court of Appeal,” the judgment notes.

He reiterated that withholding his salary without notice violated Articles 25, 41, and 47 of the Constitution as read with the Fair Administrative Action Act. 

He argued that he had not absconded from duty and that even if he had, due process required that he be heard before any adverse administrative action was taken.

The County defended the ELRC decision, maintaining that the doctor had failed to notify his employer of the delay in completing his studies and had remained absent without permission. It argued that none of his constitutional rights had been violated.

On October 11, 2024, the appellate court upheld the trial court’s findings, agreeing that the County was justified in stopping the salary and that there was no constructive dismissal. It found that the appellant’s rights had not been violated and dismissed the appeal.

The matter then reached the Supreme Court under Article 163(4)(a) of the Constitution. 

The apex court first addressed its jurisdiction and declined to determine issues raised for the first time before it, including alleged violations of Articles 232 and 236 and invitations to formulate new legal tests. 

“This Court cannot engage in an academic exercise by delving into matters which were neither considered nor determined by the superior courts below,” the judges stated.

Turning to the core dispute, the court agreed that the study leave ended on October 21, 2017, and that industrial action did not automatically extend it. 

It observed that the doctor’s May 20, 2018, letter merely informed the County of disruptions and that he “unilaterally purported to extend his own study leave” by adding the words “…as being the reasons behind the extension of my study period,” the judgment notes.

The judges held that any extension required express approval from the employer and that in the absence of such approval, his continued absence amounted to absconding from duty. 

They found that the County could not “be faulted for deeming that the appellant had absconded from his duties.”

However, the court took issue with the process followed. 

It noted that the employers never served Gikenyi with notice or a show cause letter and that they never gave the appellant an opportunity to be heard before adverse decisions were taken against him.

“Consequently and without saying more, it is our finding that the respondents did not adhere to due process to the aforementioned extent and therefore breached the appellant’s right to fair administrative action under Article 47 of the constitution,” the bench observed.

Despite this finding, the court declined to award additional damages. 

It held that the salary paid to the doctor from October 21, 2017, when his study leave lapsed, to November 2018, when payment was stopped, constituted “sufficient remedy to vindicate the violation of his right to fair administrative action.” 

As he was not entitled to salary during a period he had not lawfully resumed duty, the judges noted that no further monetary relief is warranted.

The Supreme Court therefore allowed the appeal only to the extent of declaring that Article 47 had been violated for failure to issue notice, but upheld the Court of Appeal’s judgment in all other respects. 

Given that the parties remain in an employment relationship, it ordered each side to bear its own costs and directed that the sh6,000 deposited as security for costs be refunded to the appellant.

The ruling clarifies that while employers may stop paying an employee who absents themselves without leave, such action does not in itself amount to dismissal — but must still comply with constitutional standards of procedural fairness.