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ELRCDismissedCause No. 81 of 2016· [2016] KEELRC 815 (KLR)

Lucy Kerubo v Chairman- Finmax Community Based & 2 others [2016] KEELRC 815 (KLR)

Employment & Labour Relations Court of Kenya
19 July 2016
DMD. K. Njagi Marete
1,271 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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An acting appointment is temporary, and employees claiming workplace discrimination in Kenya must actually prove it, not just allege it.

What this practically means

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Executive summary

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This first-instance claim before the Employment and Labour Relations Court at Kericho was filed by Lucy Kerubo against her employer's officers, arising from her August 2015 transfer from Hilverda Creche to the laundry department at FFI and her non-confirmation as a full supervisor after acting in that role for three months. She sought confirmation as a Grade 3 Supervisor, transfer back to Hilverda Creche, general and special damages of Kshs. 82,800/= supported by receipts, costs and interest, contending bias in the non-confirmation and disruption of her college education. The respondents defended the transfer as a staff rationalization measure, asserting the supervisory appointment was temporary and acting in place of Jane Kanus who was reinstated, that the claimant's contract permitted deployment anywhere in Kenya, and that she never sought study leave or notified them of classes. The matter proceeded by written submissions. The court framed three issues: entitlement to confirmation, entitlement to relief, and costs. Relying on the constitutional guarantees of equality and fair labour practices, but accepting the respondent's authorities on the evidential burden in discrimination claims and the absence of entitlement in acting appointments, the court found the claimant had not demonstrated discrimination, frustration or hardship. The claim was dismissed with costs to the respondents on 19th July 2016.

Key legal issues

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01

Whether the claimant was entitled to confirmation as a Grade 3 supervisor

Holding

The claimant was not entitled to confirmation as Grade 3 supervisor; the appointment was acting and temporary in place of a reinstated employee, and no discrimination or bias was demonstrated

Reasoning

The court found that the employer's action was a staff rationalization exercise and that the claimant was aware the appointment as acting supervisor was temporary in place of Jane Kanus. The claimant failed to discharge the burden of proving discrimination, frustration or hardship. The respondents' evidence of the terms of employment, including deployment anywhere in Kenya, stood unrebutted by cogent proof of unequal treatment contrary to Articles 27 and 41 of the Constitution.

p. 3
02

Whether the claimant is entitled to the relief sought

Holding

Having failed on the confirmation issue, the claimant was not entitled to any relief, and the claim was dismissed with costs

Reasoning

The relief of confirmation, damages and interest was all contingent on establishing an entitlement to confirmation as supervisor and proof of discrimination or hardship. The court found the respondent had set out a work environment where duties were performed per the terms and conditions of employment. The claimant's alleged educational disruption was denied and unproven, and her transfer request was found unsupported by compelling reasons.

p. 3

Legal principles established

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  • A party alleging discrimination in the workplace must outline the circumstances and demonstrate how the impugned treatment is discriminatory
  • An employee appointed in an acting capacity has no automatic entitlement to confirmation in that position, even if no substantive holder exists, as the employer's appointment procedures must still be followed

Court orders

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  1. 1.The claim is dismissed
  2. 2.Costs of the cause awarded to the respondents

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 27
  • Constitution of Kenya, 2010Article 41

Cases cited (2)

  • Max Masoud & Another v Sky Aero Limited
    [2015] eKLR
  • Henry Ochido v NGO Coordination Board
    [2015] eKLR
Jurisdiction invoked
Employment and labour relations jurisdiction under Article 162(2) of the Constitution of Kenya, 2010 (court established as the Employment & Labour Relations Court); not expressly stated in the judgment

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Lucy Kerubo v Chairman- Finmax Community Based & 2 others [2016] KEELRC 815 (KLR)", Case Analysis (2016). Cause No. 81 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/815/eng@2016-07-19

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.