State to pay two disabled people Sh200,000 for unfair dismissal

The court has ordered the government to pay two people Sh200,000 after they were relieved of their duties as enumerators of the 2019 census for being disabled.

Frankline Ombasa and Elizabeth Lokooli were employed as content supervisors by the Kenya National Bureau of Statistics (KNBS) to conduct the 2019 census.

Their contract was 27 days and were to get paid Sh2,500 daily.

The two testified that after recruitment they were taken through training and induction but were later fired through a letter from the then Kisii County Commissioner Godfery Kagochi.

The August 9, 2019, letter said that they had been relieved of their responsibilities as content supervisors due to the extent of their disabilities.

They filed the case at the Kisii High Court on August 9, where they sued the Interior Ministry, Kisii County Commissioner Kigochi, KNBS and the Attorney General.

They sought damages, orders quashing the letter and to be reinstated to their positions.

The two however dropped their case against Kigochi and removed the prayer seeking to be reinstated to their positions.

Ombasa and Lokooli wanted the government compelled to provide them with the right tools to be content supervisors for the census.

They wanted the state compelled to comply with a constitutional directive that at least 5 per cent of appointments should be to persons with disability.

They also sought an order that their rights had been violated and that persons with disability are entitled to work without discrimination.

Ombasa and Lokooli also wanted the court to order the government to come up with policies and structures for reasonable accommodation by persons living with disabilities in more places.

The Kisii High Court was to rule on the matter on March 4, 2024, but declared that it did not have jurisdiction and transferred the matter to the Employment and Labour Relations Court.

Employment and Labour Relations Court Judge Stephen Radido found that the primary ground for Ombasa and Lokooli's termination was due to the extent of their disability.

"The respondents should at the very least have afforded the petitioners an opportunity to make representations before making the decision to terminate," he said.

According to the Judge, such an opportunity is a requirement of not only natural justice but procedural fairness.

Justice Radido said that if the two had been afforded such an opportunity, then the parties would have discussed the possibility of reasonable accommodation.

"The respondents' decision did not only fail the procedural fairness and reasonable accommodation test, but they also isolated the petitioners for dismissal because of their disability," he ruled.

The Judge said the disability of Ombasa and Lokooli must have been obvious to KNBS at the point of recruitment.

"The court awards the 2nd and 3rd petitioners damages of Sh100,000 each. The awards to attract interest at court rates from the date of judgment," ruled Justice Radido.