Cherop v Judicial Service Commission (Cause E037 of 2024) [2025] KEELRC 2844 (KLR)
The bottom line
#A Kenyan court ruled the JSC unfairly dismissed a clerk, awarding him Kshs.373,710 because the employer couldn't prove misconduct or follow fair procedure.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Respondent properly terminated the Claimant under section 45(2) of the Employment Act
- 2.If (i) above is in the negative, whether the Claimant is entitled to the reliefs sought
- 3.Who should bear the costs
Key legal issues
#Whether the reasons for dismissal were valid and proved under sections 45 and 47(5) of the Employment Act
The reasons were questionable; the Respondent failed to prove the Claimant alone doctored or possessed the parallel receipt books, with no handwriting expert, no evidence from the accountant Mary Kibet, and unexplained discrepancies in receipt book records
The court found the allegations of financial misconduct serious but riddled with gaps. No handwriting expert confirmed the Claimant wrote the impugned receipts; the office was a 'free for all'; other staff including Gabriel Macharia and the accountant were not investigated or called as witnesses. The audit covered periods the Claimant was not in accounts. The court therefore gave the Claimant the benefit of doubt and held the reasons unconvincing.
Whether the disciplinary and dismissal procedure was fair under section 41 and Article 47
The procedure was flawed and unprocedural; hearings kept shifting, and it was unclear whether the Claimant could prepare his defence or be accompanied by a representative of his choice
The disciplinary process drifted across multiple dates between 2020 and 2021 with unexplained postponements, culminating in a dismissal backdated to 2nd October 2019. The court held that the twin requirements of substantive and procedural fairness are mandatory, not suggestions, and that the Respondent fell short of both. The Claimant was also denied access to the full audit report and could not cross-examine his accusers.
What reliefs flow from a finding of unlawful dismissal
One month's notice pay and five months' compensation were awarded; claims for unpaid salary, leave allowance and gratuity failed for want of proof
Having found the dismissal unfair, the court exercised its discretion under the Employment Act to award notice pay and capped compensation at five months given the Claimant's service of less than five years. Monetary heads that were not proved - unpaid salary, leave allowance and gratuity - were disallowed, and each party was left to bear its own costs given the nature of the case.
Legal principles established
#- An employer must prove both a valid reason and a fair procedure for termination
- The burden of proving unfair termination rests on the employee, while justifying the grounds rests on the employer
- Where evidence leaves the employer's allegations riddled with gaps, the employee gets the benefit of doubt and the reasons for dismissal are not convincing
Court orders
#- 1.Judgment entered in favour of the Claimant on unfair dismissal
- 2.One-month salary in lieu of notice of Kshs.62,285 awarded
- 3.Five months' salary as compensation for unlawful dismissal, Kshs.311,425 awarded
- 4.Total award of Kshs.373,710 plus interest at court rates of 14% per annum from the date of judgment until full payment
- 5.Unpaid salary claim disallowed as not proved
- 6.Unpaid leave allowance and gratuity claims disallowed as not proved
- 7.Each party to meet their respective costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- First-instance claim under the Employment Act; court invoked Article 47 of the Constitution on fair administrative action
Relief refused
#Reinstatement to employment without loss of benefits and payment of due salary from October 2016
The court instead awarded monetary reliefs; reinstatement was not granted
Unpaid salary of Kshs.1,180,483.50
Not proved
Unpaid annual leave allowance of Kshs.54,000 and gratuity
Not proved
Letter clearing the Claimant of all accusations, general damages and 12 months' compensation
Court limited compensation to 5 months given less than 5 years of service; no mention of the clearing letter or general damages in the final orders
Costs
Each party to meet their respective costs
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The court has very critically and deeply considered the pleadings of the rival parties as well as their submission and holds that even if the Claimant may have had some fishly dealings with those impugned receipt books yet the Respondent fell very short of showing exactly how they got into his possession and if he was the only one who could have written them.
The provision of an employer following substantial fairness and procedural fairness are mandatory according to our employment laws. They are not suggestions but are mandatory provisions.
The Respondent has not proved therefore lawful and procedural dismissal of the Claimant. Judgment is therefore entered in favour of the Claimant.
Total awarded is - Kshs.373,710/= plus interest at court rates of 14% per annum from date of this judgment till full payment.
The nature of this case persuades me to order each party will met their respective costs.
Issues in the judgment
#The judgment's disposition does not expressly address several heads of relief sought (declaration of unfair dismissal, reinstatement, exculpatory letter, general damages); the award paragraph is the only indication of what was granted and refused
Witness numbering is internally inconsistent - RW1 is used in cross-examination and re-examination passages that narrate RW2 George Muhoho's evidence
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Cherop v Judicial Service Commission (Cause E037 of 2024) [2025] KEELRC 2844 (KLR)", Case Analysis (2025). Employment and Labour Relations Court Claim dated 24th May 2024 (Nakuru). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2844/eng@2025-10-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.