Ngugi Mburu Advocates LLP’s Post

Last evening on the weekly Legal Tuesday segment on Spice Fm 94.4 , our managing partner discussed the right of an employee where they are terminated from employment due to slow delivery caused by mental illness. Mr Ngugi dissented the decision by the Supreme Court of Kenya in Petition 10 of 2022 where the Honourable Court gave tests to be applied in establishing whether mental incapacity affects the performance of a person in their work duties. The guidelines to be followed are: 1. A person’s mental incapacity is not limited to a person’s inability to make a decision, understand information about a decision, remember information, use the information to make a decision, or communicate a decision. 2. A person’s mental incapacity can result from mental illness but does not necessarily follow that mental illness equals mental incapacity. 3. Mental incapacity must be diagnosed by a qualified professional. 4. An employer MUST cause the establishment of an independent medical board of duly qualified members to determine whether the employee is, by reason of an infirmity of mind, incapable of discharging the functions of the relevant office. 5. If an employee’s mental illness is adversely affecting their ability to perform their duties, in some instances, the employer, following due process, MAY terminate the employee’s contract of employment or recommend the employee’s removal from office. 6. The test to be considered by courts is that of below beyond reasonable doubt but higher than a balance of probabilities on whether the employee’s mental illness affected their work duties. 7. Where a person is deemed to lack mental capacity, any interference with his or her fundamental rights and freedoms MUST be the least restrictive possible. Principle 1 (7) of the United Nations Principles for the Protection of Persons with Mental Illness and the Improvement of Mental Health Care Adopted by General Assembly resolution 46/119 of 17 Dec. 1991 is be regarded at all times. The said principle provides that “Where a person with mental illness is unable to manage his or her own affairs, measures shall be taken, so far as is necessary and appropriate to that person's condition, to ensure the protection of his or her interest” The Supreme Court of Kenya took Judicial Notice that mental health issues are becoming quite prevalent in the Country and it would be prudent for the Legislature to amend the Mental Health Act (Cap 248) guided by best practices and provide for inter alia a clear definition of mental capacity, the test for mental capacity, insight, pension of State Officers who may be removed from office due to mental incapacity. The Court also recommended the amendment of Pension Act and the Employment Act for employers to create a safe work environment. #MentalHealth #HealthLaw #MentalHealthAct #UnitedNationsPrinciplesfortheProtectionofPersonswithMentalIllnessandtheImprovementofMentalHealthCare #ConstitutionOfKenya #WakiliTuesdays

Our hands are tied, court tells Kenyan woman over 'prenup' with Austrian lover https://lnkd.in/dcCEk--6

Thank you for allowing us the opportunity to work with you this year. We wish you a Merry Christmas and a new year filled with joy!

Congratulations to the team! Best Law Firm, Karen Business Awards 2023.

Good evening, We are thrilled to be nominated in the Best of Karen Business Awards 2023 - Legal Services. Vote for us as we continue to be your legal services provider of choice. https://lnkd.in/dMRuYzqh. Thank you for sparing your few minutes on this 🙂.

We are thrilled to announce that Ngugi Mburu Advocates has been nominated in the Best of Karen Business Awards 2023. To cast your vote, please use the voting link and go to category 31 on legal services. You have an option to vote for just one category or all of them. https://lnkd.in/dMRuYzqh. Thank you for sparing your few minutes and your support 🙂.

Our managing partner Eliud Ngugi will be on the Land and Property Diary Show on @citizentvkenya from 6:30pm discussing the importance of conducting due diligence while purchasing property. Tune in.