The Supreme Court has declined to award millions of shillings in back pay and damages to Dr. Magare Gikenyi, a medical doctor whose salary was paused while he pursued a master’s degree.
In a judgment delivered on January 30, 2026, the apex court partly allowed an appeal filed by Dr. Magare Gikenyi against the County Government of Nakuru and four others, but ruled that although due process was violated, the stoppage itself was lawful.
The court found that no further monetary compensation was warranted beyond what Dr. Gikenyi had already received. According to the Supreme Court, Gikenyi joined the public service in 2008 and became a Nakuru County Government employee following the devolution of health services in 2013.
At the time, he served as a senior medical officer and medical superintendent at Elburgon Nyayo Hospital. He was admitted to Moi University in October 2013 to pursue a Master of Medicine degree in General Surgery and was granted four years of paid study leave, running from October 22, 2013, to October 21, 2017.
He was expected to resume duty after the expiry of the study leave. However, nationwide strikes by university lecturers and health workers disrupted academic programmes, delaying course completion. In 2018, Dr. Gikenyi was also suspended from the university on disciplinary grounds, a decision that was later set aside by the High Court.
When his study leave expired on October 21, 2017, the medic neither returned to work nor sought an extension from the County Government of Nakuru. In November 2018, he discovered that his salary had been stopped. He wrote to county officials seeking an explanation, but said he received no response.
Dr. Gikenyi moves to court
He subsequently moved to the Employment and Labour Relations Court (ELRC), arguing that the stoppage of his salary was done without notice or a hearing, thereby violating his constitutional rights.
While the ELRC acknowledged that industrial action was beyond his control, it found that he had failed to formally seek an extension of his study leave or properly communicate his whereabouts to his employer.
The court further observed that Dr. Gikenyi had not disclosed his suspension from the university, which affected his study period. It concluded that he was absent from duty without approval from November 21, 2017, and that the county government was therefore justified in stopping his salary in line with its Human Resource Policies and Procedures Manual for the Public Service, 2016.
The Court of Appeal upheld that decision, prompting the appeal to the Supreme Court. In considering the case, the apex court framed four key issues: whether the salary stoppage was lawful, whether due process under Article 47 of the Constitution was followed, whether Dr. Gikenyi was constructively dismissed, and what remedies were available.
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On the legality of stopping the salary, the court held that the county government acted within its powers. It found that once the study leave lapsed and the appellant failed to resume duty or obtain an extension, his absence was without permission.
“The Court found that the County Government was legally entitled to stop the appellant’s salary. His study leave ended on 21st October 2017, and he neither returned to work nor obtained approval to extend the study leave. His absence from duty was therefore without permission.”
However, the court faulted the county for failing to follow due process. It found that no notice or show-cause letter was issued before the salary was stopped, and that Dr. Gikenyi was not given an opportunity to be heard.
This, the apex court held, amounted to a violation of the right to fair administrative action under Article 47. On the question of constructive dismissal, the Supreme Court agreed with the lower courts that Dr. Gikenyi was not dismissed.
His employment was never terminated, and he later resumed duty after completing his studies. The court observed that “his employment was never terminated, and he later resumed duty after completing his studies.”
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The court declined to order payment of salary for the period between November 2018 and January 2020, noting that during that time the appellant had not reported to work or performed duties for the county government. It held that paying salary for that period would amount to payment for work not done.
The Supreme Court also rejected claims for general and punitive damages, finding that the salary Dr. Gikenyi continued to receive after his study leave expired was sufficient compensation for the violation of his right to fair administrative action.
“The Court also declined to award general or punitive damages for violation of the appellant’s rights. It held that the salary that the appellant continued to receive after his study leave ended (October 2017 to November 2018) was sufficient to remedy the violation of his right to fair administrative action,” the summary adds.
“The court also noted that the appellant was not entirely blameless, as he failed to resume duty or properly seek extension of his study leave.”
In its final orders, the apex court allowed the appeal only to the extent of declaring that while the decision to stop the salary was lawful, due process was not followed.
It upheld the judgment of the Court of Appeal and directed that each party bear its own costs, noting that the employer–employee relationship was still subsisting.
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