Introduction

The intersection between Mental health and Employment law in Kenya has become a focal point for judicial scrutiny. Two recent landmark decisions, AWW (Suing as Next Friend and Mother of GWW) v Central Bank of Kenya [2024] KEELRC 13585 (KLR) (“AWW v CBK”) from the Employment and Labour Relations Court (ELRC) at Nairobi and Chief of Kenya Defence Forces & another v Etyang [2026] KECA 175 (KLR) (“KDF v Etyang”) from the Court of Appeal (CoA) sitting at Kisumu, serve as a clarion call for employers to rethink how they manage employees struggling with mental related illnesses.

These judicial decisions have now lifted the veil on what the law demands, underscoring a significant paradigm shift in Kenyan jurisprudence. The courts have moved beyond mere procedural compliance with the Employment Act (Cap. 226 of the Laws of Kenya), establishing that employers now bear an affirmative, substantive duty to accommodate mental health conditions.

Together, they send an unambiguous message: dismissing an employee on account of mental ill-health, without first discharging specific duties of assessment, care and reasonable accommodation, exposes employers to substantial legal and financial liability.

The Shift: Beyond “Service No Longer Required”

Historically, employers have relied on standard disciplinary frameworks to handle performance issues or absenteeism. Often, conduct directly linked to underlying medical and psychological conditions was incorrectly classified as “insubordination,” “desertion”, or “absenteeism”. The recent judgments make it clear that this approach is no longer tenable.

• Affirmative Duty to Investigate: When an employee displays signs of deteriorating mental health, an employer cannot simply proceed with disciplinary action. There is a positive duty to investigate the underlying medical causes and the extent of the employee’s incapacity.
• The “Lucid Interval” Fallacy: In the AWW v Central Bank of Kenya decision, the employer argued that the employee had lucid moments during the disciplinary process. However, the ELRC held that appearing lucid does not automatically mean the employee possesses the mental capacity to understand the gravity of the charges or to defend themselves adequately.

Reasonable Accommodation as a Statutory Mandate

Reasonable accommodation is not an optional courtesy; it is an obligation imposed by section 15 of the Persons with Disabilities Act (Act No. 4 of 2025) and section 5 of Cap. 266. Employers must actively explore all available alternatives before considering the termination of employment.

Further, section 3 of the Mental Health Act (Cap. 248 of the Laws of Kenya) provides that every person with mental illness has the right to participate fully in society in roles suited to their abilities, access necessary medical, social and legal services, be protected from abuse, discrimination and exploitation, engage in activities that promote their well-being and receive reasonable care and support from their family and the State.

These obligations stem from the Constitution of Kenya, 2010 (Constitution) at – Article 25(a), which guarantees freedom from torture, cruel, inhuman, or degrading treatment; Article 27, which provides for equality and freedom from discrimination; Article 28, which upholds the right to human dignity; Article 41, which ensures the right to fair labour practices; Article 43(1)(a), which guarantees the right to the highest attainable standard of health; Article 47, which provides for fair administrative action; and lastly, Article 50, which ensures the right to a fair trial.

What Constitutes Reasonable Accommodation?

Reasonable accommodation requires employers to be flexible and supportive. The courts have highlighted several measures that employers should consider:

• Workplace Modifications: Reallocating non-essential duties, reducing work targets, or shifting the employee to a less stressful environment.
• Medical Support Facilitation: Granting adequate medical leave and assisting the employee in accessing or navigating the employer-provided medical insurance scheme.
• Alternative Roles: Exploring whether the employee can be redeployed to a position that accommodates their health condition.

Failure to implement these steps or subjecting a mentally incapacitated employee to disciplinary action while aware of their condition constitutes indirect discrimination under Article 27 of the Constitution.

Procedural Fairness vs. Substantive Compassion

In the KDF v Etyang case, the CoA highlighted the dangers of applying rigid disciplinary frameworks to individuals whose mental health condition stems from workplace trauma.

Key takeaways for employers regarding procedure include:

• Section 41 Compliance is Insufficient: Strictly adhering to the procedural requirements of Section 41 of Cap. 266 (such as the right to be heard) is legally deficient if the employer knows or ought to know that the employee lacks the cognitive capacity to comprehend the hearing.
• Reliance on Medical Evidence: Decisions regarding termination or unfitness for duty must be grounded in professional assessments by qualified medical practitioners or a properly constituted Medical Board.

Financial and Reputational Repercussions

The courts are increasingly willing to award substantial damages to deter the mistreatment of vulnerable employees.

• Compensation for Cruel Treatment: In the AWW v CBK case, the court awarded 12 months’ salary (Kshs. 1,008,000.00) as compensation for the cruel treatment the employee suffered when her livelihood was stripped away.
• Damages for Discrimination: The court in the AWW v CBK case additionally awarded Kshs. 4,000,000.00 in general damages specifically for discrimination on the account of a mental disability.
• Constitutional Violations: In KDF v Etyang, the ELRC awarded a global figure in compensatory damages amounting to Kshs. 30,000,000.00 (although it was revised down on Appeal to Kshs. 25,000,000 by the Court of Appeal (CoA). This award was deemed appropriate to address the gross violations of the employee’s constitutional rights and the significant impact on his health, dignity and livelihood. The court emphasised that the unlawful discharge, failure to provide adequate medical care and the cruel and degrading treatment the Respondent endured warranted such substantial monetary compensation.

Road To the Supreme Court

The KDF v Etyang case does not end at the CoA. In a ruling delivered on 30 January 2026 (Civil Application E128 of 2025), the CoA granted the Chief of Kenya Defence Forces and the Attorney General an enlargement of time to file a notice of appeal to the Supreme Court. That ruling, delivered by Kimaru JA, sets the stage for what may become a landmark pronouncement by Kenya’s apex court on the constitutional dimensions of mental health in the employment context. At this point, whether the intended appeal raises matters of general public importance sufficient for certification will be determined by the full bench of the CoA. The matter is now on a trajectory that could deliver Kenya’s first Supreme Court pronouncement on the employer’s duty to accommodate employees with mental illness. Nonetheless, in allowing the application, the CoA implicitly acknowledged that a prima facie case for constitutional significance exists.

Practical Implications for Employers

In our assessment, read together, the decisions discussed above establish a clear framework that all employers — public or private, should observe when managing employees whose mental health is in question:

• Pre-Disciplinary Assessment: An employer who becomes aware of an employee’s mental health condition must, before initiating or proceeding with disciplinary action, obtain medical evidence from a duly qualified and certified medical practitioner on whether the employee has the mental capacity to meaningfully participate in those proceedings. Proceeding without this assessment renders any resulting process and outcome liable to be set aside.
• Alternatives to Dismissal: The burden falls on the employer to explore, document, and exhaust every reasonable option short of termination, adjusted duties, extended sick leave, phased return-to-work arrangements, or redeployment. Only after demonstrating that no reasonable accommodation is workable can an employer proceed to set in motion the lawful process of termination of the employee from employment.
• Reasonable Accommodation: sections 5 and 44(4) of Cap. 266, read with section 15 of Act No. 4 of 2025, and Article 27 of the Constitution, impose a positive duty on employers to accommodate employees with disabilities, including mental illness. A failure to go beyond ordinary medical benefits to specifically tailor support to the employee’s condition will be treated as indirect discrimination.
• Documentation: Courts will scrutinise the employer’s conduct with considerable care. The absence of documented assessments, accommodation attempts, or medical referrals will count heavily against an employer and may expose it to significant damages, over and above ordinary termination awards.
• Uniformed Services Not Exempt: The KDF v Etyang judgment confirms that constitutional protections apply across all employment relationships, including military service. Operational culture and internal disciplinary frameworks do not displace the duty of care owed to service members whose health deteriorates in the course of duty.

Conclusion

Workplace practices that ignore the realities of mental health now carry significant legal and financial risks. These recent decisions make clear that employers must move beyond rigid disciplinary processes and adopt structured, compassionate support systems. Mental illness is neither misconduct nor a convenient basis for termination; it triggers a duty—not a discretion—to assess an employee’s capacity, provide support, and meaningfully explore reasonable accommodation before any adverse action is taken.

Employers who rely solely on show-cause letters and disciplinary hearings in response to mental ill-health expose themselves to potential risks. The consequences extend beyond financial liability, reflecting judicial findings that an employee’s dignity and constitutional rights have been infringed. Accordingly, organisations should re-look and review their internal policies, equip Human Resource practitioners and managers with a clear understanding of the “duty to accommodate” and implement practical protocols for handling mental health challenges in the workplace.

For now, pending the Supreme Court’s determination of the KDF v Etyang case, the position established by the ELRC and affirmed by the CoA remains intact; dismissal on grounds linked to mental ill-health, without proper capacity assessment and genuine efforts at accommodation, is unlawful and borders on indirect discrimination. The trajectory of the KDF v Etyang litigation, from the ELRC to the CoA and now towards the Supreme Court, underscores the seriousness with which the judiciary views this issue as a matter of public interest and serves as a clear red light to employers to act proactively rather than belatedly.

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