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ELRCPartially AllowedNot stated in the judgment (Petition filed 27 May 2022)· [2024] KEELRC 1417 (KLR)

Cherop v Kenya Marine & Fisheries Research Institute (Petition E009 of 2022) [2024] KEELRC 1417 (KLR)

Employment and Labour Relations Court
20 March 2024
3,183 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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A Kenyan court upheld a dismissal for gross misconduct but ordered the employer to pay wages owed during a 13-month suspension.

What this practically means

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Executive summary

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The petitioner, employed by the respondent since 1981 and last serving as Supply Chain Management Officer II, was suspended on 20 August 2018 following an impromptu stores inspection that found nine twenty-litre cans of paint valued at Kshs. 99,500 missing. Following investigations, a disciplinary hearing, and review by the Board of Management, he was summarily dismissed on 3 October 2019 for gross misconduct (dishonesty and theft by public servants). He filed a constitutional petition seeking compensation for violation of constitutional rights, lawful dues and benefits from 20 August 2018, general damages, compounded interest, and costs. The respondent filed no response, only a Notice of Preliminary Objection on limitation that was never addressed. The court held the petition was filed within the three-year period under Section 90 of the Employment Act, the cause of action accruing on termination. However, applying the threshold in Sumayya Athmani Hassan and Jane Angila Obando, the court found the constitutional route improper since no statute was challenged and the Employment Act provides adequate remedies; a Memorandum of Claim ought to have been filed. On the merits, the court found the petitioner was given a show-cause notice, attended investigations and a disciplinary hearing, and the employer had the primary mandate to address misconduct notwithstanding the PSC Act. The termination was justified under Sections 41, 43 and 44. Constitutional violation and general damages claims failed. Only wages and benefits due from 20 August 2018 to 3 October 2019, less amounts received, were awarded, subject to tabulation under Section 18(4), with each party bearing its own costs.

Key legal issues

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01

Limitation under Section 90 of the Employment Act

Holding

The petition was properly filed as it was lodged within 3 years of the termination on 3 October 2019

Reasoning

The cause of action arose with the termination of employment on 3 October 2019 and the petition was filed on 27 May 2022, within the three-year period contemplated by Section 90. The preliminary objection on time-bar was therefore not sustained.

p. 4
02

Whether the constitutional petition was the proper vehicle

Holding

No; a Memorandum of Claim ought to have been filed since no statute was challenged as unconstitutional and no question of constitutional interpretation arose

Reasoning

Citing the threshold in Jane Angila Obando and Sumayya Athmani Hassan, the court held that Article 41 rights are adequately catered for in the Employment Act and its enforcement mechanisms. The petitioner cited constitutional violations but none met the threshold requiring the constitutional route.

p. 5
03

Whether the termination and disciplinary process violated the petitioner's constitutional rights

Holding

No violation; the petitioner was taken through due process, given a hearing, and the employer lawfully exercised its mandate

Reasoning

The petitioner responded to a show cause, appeared before an investigations committee and a disciplinary hearing, and the matter went to the Board of Management for resolution. The employer had the primary legal duty to address misconduct notwithstanding the PSC Act or the Discipline Manual. Pending retirement did not insulate the petitioner from disciplinary action.

p. 6
04

Remedies for dues during suspension

Holding

Wages and benefits due from 20 August 2018 to 3 October 2019 are payable, less what was received, subject to tabulation under Section 18(4) of the Act

Reasoning

Payment statements showed the petitioner received full pay in some months but only house and medical allowances in others. The suspension notice in the bundle was incomplete. The court directed an assessment of unpaid dues with the petitioner attending for clearance and tabulation within 14 days.

p. 6

Legal principles established

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  • A party should not invoke a constitutional petition in employment disputes unless challenging the constitutionality of a statute or seeking constitutional interpretation; a Memorandum of Claim is the proper vehicle
  • An employment claim must be filed within 3 years of termination; the cause of action arises with the end of employment
  • The employer retains the primary mandate to address misconduct or gross misconduct on the shop floor notwithstanding the existence of the PSC or internal manuals
  • Where an employer genuinely believes a ground for termination exists, that is sufficient justification under Section 43 of the Employment Act if due process was followed

Court orders

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  1. 1.Award of payment of any lawful dues and benefits with effect from 20 August 2018 to 3 October 2019, less benefits already received
  2. 2.The petitioner to attend at the shop floor for assessment of wages due and not paid in accordance with Section 18(4) of the Employment Act
  3. 3.The petitioner to attend for clearance and tabulation of dues unpaid, if any, within the next 14 days
  4. 4.Each party to bear its own costs

Authorities

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Legislation

  • Employment ActSection 90
  • Employment ActSections 41 and 44
  • Employment ActSection 43
  • Employment ActSection 18(4)
  • Science Technology and Innovation ActNot specified
  • Public Service Commission ActSection 79(2)
  • Employment and Labour Relations Court (Procedure) RulesRule 7(3)
  • Discipline Manual for Public ServiceSections 4.0 and 4.6

Cases cited (8)

  • Michira & 41 others v Aegis Kenya Ltd t/a Leopard Beach Hotel
    (Cause E088 of 2023) [2023] eKLR
  • Johnson Kazungu v Kenya Marine & Fisheries Research Institute
    [2021] eKLR
  • Jane Angila Obando v Teachers Service Commission & 2 others
    [2020] eKLR
  • Sumayya Athmani Hassan v Paul Masinde Simidi & another
    [2019] eKLR
  • Mutwol v Moi University
    (Civil Appeal 118 of 2019) [2022] eKLR
  • Matsesho v Newton
    (Cause 9 of 2019) [2022] eKLR
  • Terry Muringo Muchiri v K-Rep Group Limited
    [2021] eKLR
  • Kenya Power & Lighting Company Limited v Aggrey Lukorito Wasike
    [2017] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 and the Employment and Labour Relations Court (Procedure) Rules, 2016

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, "Cherop v Kenya Marine & Fisheries Research Institute (Petition E009 of 2022) [2024] KEELRC 1417 (KLR)", Case Analysis (2024). Not stated in the judgment (Petition filed 27 May 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1417/eng@2024-03-20

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