Doctor loses bid to recover Sh4.5 million withheld salary

 

On May 22, 2019, a patient’s monitor was stolen from Kwale District Hospital and Dr Samuel Kiptalam was blamed for it.

Kiptalam, an Anaesthetist at the hospital was blamed for the said stolen monitor by the county and as a result, he was transferred to Samburu Sub-County Hospital on June 10, 2019.

However, he declined to proceed on transfer and as a result, his salary amounting to Sh4,536,170 was withheld by Kwale County.

Dr Kiptalam was employed by the National Government as a Registered Clinical Officer- Anaesthetist, under the Ministry of Health on June 28, 2001 where he was later posted to the then Coast Province, Kwale District where he was absorbed by Kwale County and served until the undue transfer to Samburu.

According to the hospital management, the said patient monitor got stolen under the doctor’s watch.

On July 29 2022 Justice Byram Ongaya awarded the doctor Sh4,536,170 being his withheld salary and ordered him to report to the new station not later than August 8 2022 with full pay of remuneration and other benefits.

Justice Ongaya directed that Dr Kiptalam be paid the said salary less PAYE by October 1 2022, failure to which interest be payable thereon at court rates from date of judgement until payment in full.

Justice Ongaya further issued a declaration that the deployment of the doctor to Samburu Sub-County Hospital was regular and did not bar the applicant from raising a grievance about the alleged theft at the time of deployment.

However, on July 18, 2025, the appellate court overturned Justice Ongaya verdict, awarding the doctor the withheld salary.

Justice Gatembu, Laibuta and Macharia Ngenye upheld the County’s action to withhold Dr Kiptalam’s salary.

Further Dr Kiptalam suffered another defeat after Justices Agnes Murgor, K Laibuta and Macharia Ngenye dismissed his notice of motion seeking to move to the Supreme Court to appeal the appellate court decision.

Justice Murgor held that Dr.Kiptalam was found to be in breach of the terms of the employment contract under the applicable Human Resource Manual.

The judges said that being in the medical field and in particular working in the theatre, a critical department, and as an Anaesthetist, he was obligated to perform his duties with fidelity and utmost dedication.

“Once he breached the terms of his service, nothing stopped the respondent Kwale County Government) from taking disciplinary action against him. This is the ordinary cause of action that ensues in such circumstances in employment relationships,” said Justice Murgor.

The judges further said that there is nothing to suggest that disciplinary issues in the context of employment transcend the parties involved, so as to qualify them to be matters of general public importance.

 In dismissing his application, Justice Murgor said there is nothing novel in the manner in which the disciplinary mechanism was undertaken or are undertaken in the public sector against public officers requiring escalating the matter to the Supreme Court.

The judges said a contract of employment binds the parties therein, and each party is expected to perform their part of the bargain and once one party is in breach thereof, it is obvious that consequences must follow.

“In the result, we find that the Notice of Motion dated July 30 2025 lacks merit and is hereby dismissed with costs to the respondent (Kwale County Government),” said Justice Murgor.

In his intended appeal, Dr Kiptalam sought the Supreme Court Dr Kiptalam to pronounce itself with regard to the disciplinary mechanism availed by the County Governments to employees whose terms of service are under the Public Service Commission vis-a-vis the disciplinary mechanism provided within the public service by the Public Service Commission.