Legal Commentary on Compulsory Leave, Procedural Fairness, and Constitutional Compliance in Kenya: The Case of Njoroge & 2 others v Kenya Medical Supplies Authority & 3 others [2025] KEELRC 3037 (KLR)

I. Introduction

The judgment in Njoroge & 2 others v Kenya Medical Supplies Authority & 3 others represents a significant development in Kenyan employment law, particularly regarding the intersection of procedural fairness, fair labour practices, and constitutional protections. The case addresses the legality of placing employees on compulsory leave without prior notice or an opportunity to be heard and demonstrates the judiciary’s commitment to constitutionalising employment rights. This commentary provides a detailed analysis of the facts, legal issues, judicial reasoning, constitutional implications, and policy considerations arising from the decision.

II. Factual Background

The Petitioners were employees of the Kenya Medical Supplies Authority (KMSA) and were placed on compulsory leave without prior notification or an opportunity to be heard. Following this action, the 1st Petitioner resigned, claiming constructive dismissal. The Petitioners alleged that the employer’s conduct constituted unfair labour practice, discrimination, and a breach of their constitutional rights under Articles 27, 41, 47, 50, and 236 of the Constitution.

The case highlights a common practical dilemma in employment management: balancing employer prerogative in workforce administration against employee constitutional and procedural rights.

III. Legal Issues

The case raised several interrelated legal questions:

1. Whether placing employees on compulsory leave without prior notice, explanation, or hearing constitutes a violation of fair labour practices and fair administrative action.
2. Whether the unilateral imposition of leave can amount to constructive dismissal under Kenyan law.
3. The appropriate remedies for employees whose constitutional rights under Articles 27, 41, 47, 50, and 236 are violated in an employment context.

IV. Court’s Holding and Reasoning

The Court held that the forced leave without notice, justification, or an opportunity to be heard constituted unfair labour practice and unlawful administrative action. It emphasized several key principles:

1. Procedural Fairness as a Constitutional Requirement
   The Court anchored its reasoning on Article 47 (fair administrative action) and Article 50 (right to a fair hearing), holding that procedural safeguards apply to employment decisions affecting rights, including compulsory leave. Even in public institutions, managerial discretion must be exercised in compliance with natural justice principles, including prior notice, explanation, and the opportunity to respond.
2. Constructive Dismissal
   The Court found that the 1st Petitioner’s resignation constituted constructive dismissal. Constructive dismissal arises where employer conduct fundamentally undermines the employment relationship, leaving the employee no reasonable alternative but to resign. Here, the unilateral leave disrupted the employment relationship to such an extent that resignation was effectively compelled.
3. Constitutional Violations and Remedies
   The Court recognized violations of Articles 27, 41, 47, 50, and 236, awarding Kshs. 6 million each to the 1st and 3rd Petitioners for constitutional infringements and six months’ salary to the 1st Petitioner for constructive dismissal. This demonstrates the Court’s willingness to link statutory employment protections with constitutional safeguards to ensure comprehensive redress.

V. Doctrinal Analysis

1. Procedural Fairness in Employment Law

Traditionally, procedural fairness in employment focused on disciplinary hearings or dismissals. Njoroge expands this principle to include pre-dismissal managerial actions, such as compulsory leave. This aligns with administrative law doctrines, emphasizing that any action affecting an employee’s substantive rights must follow fair procedures, regardless of whether the action constitutes dismissal.

2. Constructive Dismissal Doctrine

The Court reaffirmed that constructive dismissal does not require a formal termination notice. It arises from employer conduct that fundamentally breaches the employment contract, including unilateral, unjustified, or procedurally defective interventions. This approach strengthens employee protection and aligns Kenyan jurisprudence with common law principles, including those recognized in South African and UK law.

3. Integration with Constitutional Law

The decision is particularly significant for constitutionalising employment protections. Articles 41 and 47 now serve as key instruments for evaluating fair labour practices, procedural fairness, and employer accountability. This integration illustrates the Court’s transformative approach, which ensures that administrative and employment decisions respect both substantive and procedural constitutional rights.

VI. Comparative Perspective

Comparative jurisprudence demonstrates a similar emphasis on procedural safeguards:

• South Africa: The Labour Relations Act requires hearings before suspension or dismissal.
• United Kingdom: Employment tribunals consider whether procedural fairness was observed before upholding unilateral employer actions.

Njoroge aligns Kenya with these jurisdictions, reinforcing the global trend of embedding due process in employment law, particularly for public sector employees.

VII. Policy Implications

1. Employer Practices: Public and private sector employers must develop clear policies regarding compulsory leave, including notice requirements, explanation of reasons, and the opportunity for employees to be heard.
2. Human Resource Management: HR professionals must ensure procedural compliance to avoid claims of unfair labour practice or constructive dismissal.
3. Legislative Reform: The decision suggests a need for statutory guidelines on compulsory leave, particularly in public institutions, to codify procedural safeguards.
4. Judicial Precedent: This case establishes a benchmark for damages in constitutional violations arising from unfair labour practices, guiding both tribunals and HR managers.

VIII. Conclusion

Njoroge & 2 others v Kenya Medical Supplies Authority underscores the judiciary’s commitment to protecting employee rights through constitutional guarantees, extending the scope of procedural fairness beyond traditional dismissal or disciplinary contexts. The case consolidates principles of fair labour practice, procedural justice, and constructive dismissal and signals to employers the need for transparent, justified, and legally compliant management of employment actions, including compulsory leave.

The judgment also provides a doctrinal and policy framework for advising clients on employment practices in Kenya, highlighting the necessity of procedural compliance to mitigate exposure to constitutional claims and compensation liability.

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