A man who was sacked after developing a tumour on his spinal cord, which made him immobile, has been allowed to argue his case before the Supreme Court.
Simon Gitau Gichuru will be seeking an interpretation and application of the Constitution’s Article 27 on equality and freedom from discrimination.
The application that also revolves around the Employment Act is on the grounds that the Court of Appeal erred in failing to analyse the evidence on record before reaching its decision on discrimination, which led to setting aside Sh5 million he had been awarded by the Employment and Labour Relations Court.
He claims three appellate judges did this by introducing new and extraneous facts that were not before the trial court in determining the issue when it ruled in his favour against the employer – Package Insurance Brokers Limited.
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In its ruling, the Supreme Court said the matter was right before the six-judge bench, adding that Article 163(4) (a) of the Constitution grants parties an automatic right of appeal if an issue touching on application and interpretation of the Constitution is raised and addressed by subordinate courts.
The bench, comprised Chief Justice David Maraga, his deputy Philomena Mwilu and Justice Ibrahim Mohamed, Smokin Wanjala and Isaac Lenaola, also dismissed an application by the company that wanted Gichuru’s application struck out.
The Court of Appeal held that discrimination did not arise, as only the petitioner was sick and his dismissal could not be weighed against other employees, who were performing while he himself was unable to deliver.
In their ruling on July 19, 2019, justices Philip Waki, Asike Makhandia and Fatuma Sichale noted that the circumstances leading to the summary dismissal were of a progressive nature.