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ELRCDismissedPetition filed 27th March 2014 (number not stated in judgment)· [2019] KEELRC 1482 (KLR)

Clement Ernest Opiyo Murenga v Principal Secretary Treasury & another [2019] KEELRC 1482 (KLR)

Employment and Labour Relations Court
20 May 2019
MNMathews N. Nduma
2,467 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court dismissed a decades-old dismissal claim because the former civil servant could not prove his rights were actually violated.

What this practically means

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Executive summary

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The petitioner, formerly employed by the defunct East African Community and absorbed into the Ministry of Finance in 1977, was interdicted on half pay in December 1983 after being charged with making a customs entry without authority. He was acquitted in December 1983 but later discovered he had been dismissed by letter dated 29th May 1985 for desertion of duty. He petitioned for declarations that his rights under Articles 47, 50(1), 28, 25(e), 41(1) and 35(2) of the Constitution had been violated, plus compensation for lost salary and damages. The 1st respondent, through Dr. Kamau Thugge's affidavit, maintained the petitioner applied for leave from 26th November 1984, never resumed duty, was issued a show-cause letter by registered mail, and was dismissed with effect from 2nd January 1985 following a Ministerial Advisory Committee recommendation; his two appeals to the Public Service Commission were dismissed. The court, noting the Court of Appeal had already resolved the limitation question in the petitioner's favour, applied Sections 107 and 108 of the Evidence Act and the Anarita Karimi Njeru precision standard. It found the petitioner had failed to prove his case on a balance of probabilities: the dismissal was lawful and fair, the PSC had upheld it, and the petitioner was indolent in pursuing his entitlements. The petition was dismissed in its entirety with each party bearing their own costs, the court noting the prolonged litigation was through no fault of the petitioner.

Key legal issues

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01

Whether the petitioner's constitutional rights were violated by the interdiction, stoppage of salary and dismissal for desertion

Holding

No violation established; dismissal followed a show-cause notice, a Ministerial Advisory Committee sitting and was upheld by the Public Service Commission on appeal

Reasoning

The court found the petitioner was granted leave, failed to resume duty, and was dismissed after a show-cause letter sent by registered mail and a Ministerial Advisory Committee recommendation. The PSC considered his appeals and found the dismissal valid. The petitioner failed to discharge the onus of proof on a balance of probabilities, and the respondents rebutted his evidence.

p. 4
02

Limitation of the petition

Holding

Not revisited; the Court of Appeal had found the violations continuing in nature and no limitation period specified for constitutional petitions

Reasoning

The Court of Appeal, in its judgment of 20th July 2017, had held that the alleged violations were continuing in nature and that neither the retired nor the current Constitution prescribes a limitation period for constitutional petitions. The trial court therefore declined to revisit limitation and confined itself to whether the violations were proved.

p. 3

Legal principles established

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  • A petitioner alleging constitutional violations bears the burden of proving them on a balance of probabilities and must plead with precision the provisions violated and the manner of violation

Court orders

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  1. 1.The entire petition is dismissed for want of proof
  2. 2.Each party to bear their own costs of the suit
Jurisdiction invoked
Original constitutional petition jurisdiction under the Constitution of Kenya 2010 (Articles 47, 50, 28, 25, 41 and 35 invoked); matter referred back for trial by the Court of Appeal

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Clement Ernest Opiyo Murenga v Principal Secretary Treasury & another [2019] KEELRC 1482 (KLR)", Case Analysis (2019). Petition filed 27th March 2014 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1482/eng@2019-05-20

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