Kenya: Setback for Kilifi Clinical Officer As Court Declines to Reinstate Him

A clinical officer suffered a setback after his bid to have an order directing Kilifi County and its public service board to unconditionally lift his suspension and reinstate him was rejected.

The Employment and Labour Relations Court (ELRC) declined an application by Benjamin Menza, saying there are serious allegations made against him, which he would be required to give an account of during the full hearing of the case.

"It is therefore unsafe to determine the case at the interlocutory (preliminary) stage," said Justice Linnet Ndolo, of the ELRC in Mombasa.

In his application, Mr Menza told the court that he was suspended from employment on December 13, 2019.

He termed the suspension as unlawful and contrary to his terms and conditions of service, the Employment Act, and the constitution.

Mr Menza, who has sued Kilifi County and the Kilifi County Public Service Board said the suspension was without pay amounting to unfair labour practice and inhumane treatment.

According to the clinical officer, the suspension was based on the allegation that he sanctioned a medical doctors strike by forging a signature to approve it.

"The reason for suspension fronted by the respondents amounts to blackmail as there has never been any claim or reports of forgery ever reported and investigation carried out to confirm forgery," part of his application stated.

He argued that he had been called to a hearing that was wrongly constituted and was intended to ensure that he was summarily dismissed.

The clinical officer told the court that after a disciplinary meeting held on January 21 last year, the disciplinary committee requested him write his submissions, which he had initially filed but the respondents were adamant.

Mr Menza said the move by the Kilifi County and its public service board to suspend him without pay and without issuing a notice to show cause amounted to gross violation of his rights.

According to Mr Menza, he was employed by the Ministry of Health as a clinical officer in 2004 and deployed at Malindi General Hospital, before being confirmed to the position under permanent and pensionable terms.

He further said that upon transfer of health functions from the national to county governments, he was seconded to the Kilifi County, where he has worked diligently and effectively.

In his main suit, he wants a declaration that his suspension was unlawful and that his indefinite suspension amounts to constructive dismissal leading to unfair termination of employment.

He also seeks for an order directing the county government and its public service board to reinstate him to his employment.

Mr Menza also seeks a permanent injunction restraining the respondents from demoting, summarily dismissing, or terminating his employment on account of allegations in the suspension letter.

Justice Ndolo directed the case file to be placed before the ELRC Judge in Malindi on September 15 for directions on hearing and disposal of the suit.

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