Cherop v Kenya Marine & Fisheries Research Institute (Petition E009 of 2022) [2024] KEELRC 1417 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Limitation under Section 90 of the Employment Act
The petition was properly filed as it was lodged within 3 years of the termination on 3 October 2019
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.
Whether the constitutional petition was the proper vehicle
No; a Memorandum of Claim ought to have been filed since no statute was challenged as unconstitutional and no question of constitutional interpretation arose
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.
Whether the termination and disciplinary process violated the petitioner's constitutional rights
No violation; the petitioner was taken through due process, given a hearing, and the employer lawfully exercised its mandate
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.
Remedies for dues during suspension
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
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.
Legal principles established
#- 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
#- 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.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.The petitioner to attend for clearance and tabulation of dues unpaid, if any, within the next 14 days
- 4.Each party to bear its own costs
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.