Kipkemboi Cherono & another v Tana & Athi Rivers Development Authority [2015] KEELRC 441 (KLR)
The bottom line
#A Kenyan court ruled that firing employees by backdating the letter to their suspension date is illegal, and awarded them over KShs 3 million each in unpaid salary.
What this practically means
#Executive summary
#Key legal issues
#Whether the terminations were with cause
The Claimants were terminated with cause, as investigations by the Inspectorate of State Corporations revealed adverse findings of abuse of office and fraud against them
Investigations undertaken during the fiscal year 2004-2005 by the Inspectorate of State Corporations revealed serious cases of mismanagement. The adverse findings against the 1st Claimant concerned irregular procurement of a Mercedes Benz and diesel; the 2nd Claimant faced findings on irregular procurement of 100,000 eucalyptus trees and irregular sale of firewood causing a loss of Kshs. 26,000/-. These allegations even led to the arraignment of the 2nd Claimant in court, establishing that there was basis for termination.
Legality of backdating the termination to the date of suspension
The backdating of the June 2009 termination to September 2006 was illegal and manifestly unfair
The court reasoned that backdating termination to a date already past would deprive the employees of the legitimate right to the safeguards of Article 47(1) and 50(1) of the Constitution - it would render any challenge to the process or any appeal or judicial review hopelessly out of time. The employees were entitled to those safeguards notwithstanding the circumstances of the termination.
Legality of the prolonged suspension
The suspension was valid up to December 2006, after which it became illegal for being unending
The court held that suspension must be for a finite period. The suspension from September 2006 until June 2009 was inordinately long and without any justification, so the court fixed December 2006 as the point at which the suspension became illegal. The Claimants were nevertheless entitled to salaries from December 2006 until the contracts were terminated on 18th June 2009.
Absence of show cause and procedural fairness
There should have been a show cause letter and procedural fairness as contemplated in Section 41 of the Employment Act before termination
The letters of administrative action were on record, but the employees should have been issued show cause letters and given procedural fairness under Section 41 of the Employment Act. The Respondent's Managing Director conceded in cross-examination that there was no notice to show cause when the Claimants were asked to appear before the investigation team.
Whether prospective salary to retirement is recoverable
No - sanguine prospects or future salary to the date of retirement are not payable as remedies for unfair termination
The court concurred with Onyango J. and Rika J. that sanguine prospects are not available as remedies. There being no provision for future salaries in employment law practice in Kenya, the Claimants could not recover the millions in salary from 2006 to their anticipated retirement dates of 2023 and 2027. The recoverable salary was limited to the period December 2006 to 18th June 2009.
Legal principles established
#- It is illegal to backdate a termination of employment to a past date, as it deprives the employee of constitutional safeguards
- Suspension must be for a finite period; an unending suspension becomes illegal
- Future salary to the date of retirement (sanguine prospects) is not recoverable as a remedy for unfair termination
- Before termination, an employee is entitled to a show cause letter and procedural fairness as contemplated by Section 41 of the Employment Act
Court orders
#- 1.Declaration that the termination in June 2009 backdated to September 2006 was illegal, for each Claimant
- 2.Payment to the 1st Claimant of salary from December 2006 till 18th June 2009 of Kshs. 3,114,927/-
- 3.Payment to the 2nd Claimant of salary from December 2006 till 18th June 2009 of Kshs. 3,114,927/-
- 4.Certificates of service for each Claimant
- 5.Claimants to each be paid costs of the suit with interest on the sums awarded from date of judgment till payment in full
- 6.Sums awarded to be subject to statutory deductions as provided for in Section 49 of the Employment Act
- Jurisdiction invoked
- Original employment and labour relations jurisdiction over claims for unfair and unlawful termination
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kipkemboi Cherono & another v Tana & Athi Rivers Development Authority [2015] KEELRC 441 (KLR)", Case Analysis (2015). Consolidated suits filed 22nd September 2009 and 18th December 2009 (consolidated 23rd February 2011 by Chemmuttut J.). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/441/eng@2015-08-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.