Ernest Moturi Ogwora v National Cereals & Produce Board & another [2021] KEELRC 1407 (KLR)
The bottom line
#Kenya's Employment Court dismissed a worker's discrimination petition because it was filed too late and through the wrong legal route.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether there was discrimination against the petitioner
- 2.Whether the remedies sought should issue
- 3.Whether the petition, as framed, was the correct procedural vehicle for the claims advanced
Key legal issues
#Whether there was discrimination against the petitioner in promotions and acting appointments
No discrimination was established; the recruitment processes were competitive and policy-driven, and the ethnic discrimination allegation was left bare without particulars
The court applied the constitutional and statutory definitions of discrimination under Article 27 and section 5(3) of the Employment Act. It found the respondent operated under a human resource policy with competitive recruitment for placements, promotions and acting appointments. The substantive holder of the 2010 position resumed duty after the maize scandal suspensions, so the post was unavailable. Allegations of ethnic preference lacked the particulars needed to show an unreasonable distinction based on the petitioner's ethnicity.
Whether the petition was the correct procedural vehicle
The petitioner should have filed a Memorandum of Claim; the constitutional petition could not cure time-barred claims
Relying on Sumayya Athmani Hassan and Harrikisson, the court held that where the Employment Act provides adequate remedies for rights under Article 41, a litigant cannot found a cause of action directly on the Constitution. The claims dating back to 2010 were time barred under section 90 of the Employment Act, and filing a petition could not cure or revise that limitation position.
Whether the remedies sought should issue
All remedies were declined; the petition was dismissed with costs
Having found no discrimination, and given that the petitioner's appointments and re-designations were all communicated in writing in accordance with the Employment Act, claims to salaries of positions he never held in writing lacked foundation. The claim on unpaid annual increments was not pleaded, and the retirement/abolition of office issue was never pleaded in the petition.
Legal principles established
#- Where legislation such as the Employment Act gives effect to a constitutional right, a litigant should not found a cause of action directly on the Constitution without challenging the legislation or showing its remedies are inadequate; constitutional petitions should not be used to camouflage claims that are otherwise time barred
- Claims for alleged discrimination in employment and failure to promote must be brought within the limitation period in section 90 of the Employment Act, 2007
- A competitive recruitment process regulated by an HR policy does not constitute discrimination merely because a particular candidate is dissatisfied with the outcome
- Employment changes such as promotions, re-designations and deployments must be communicated in writing in accordance with sections 10 and 13 of the Employment Act, and salary claims must be anchored on written appointments
- Evidence and issues that are not pleaded cannot be introduced through submissions
Court orders
#- 1.The petition was dismissed in its entirety
- 2.Costs of the petition were awarded to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment and Labour Relations Court Act and Article 41 of the Constitution (employment and labour relations dispute)
Relief refused
#Declarations that the petitioner qualified and ought to have been promoted to General Manager, Warehousing and Operations (2010), acting Managing Director (2013 and 2018) and General Manager (2013 recruitment)
The court found the recruitment processes were competitive and governed by policy; the substantive office holder resumed duty in June 2010 so the position was no longer available, and no discrimination was proved
Orders appointing the petitioner to various positions, general damages for unfair treatment and discrimination, permanent and mandatory injunctions relating to the Managing Director recruitment
The petitioner failed to prove discrimination; claims going back to 2010 were time barred under section 90 of the Employment Act, 2007
Payment of salary/allowances for positions of General Manager or acting Managing Director
No written letter appointing the petitioner to such positions existed; salary bands cannot be asserted outside written appointments
Claim for retirement following abolition of office (August 2020) addressed remotely in submissions
Those matters arose after filing and were never pleaded by amendment to the 2018 petition; the petitioner remains at liberty to file a separate suit
Costs
Petition dismissed with costs to the respondent
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.
Accordingly, petition herein is found without merit and is hereby dismissed with costs to the respondent.
The petition raising claims going back to the year 2010 are largely time barred and should have been addressed within time as on the whole, the petition is found without justification and is hereby dismissed.
The practice of filing petitions instead of moving the court by way of memorandum of Claim is taking root and this has been applied to camouflage claims which ordinarily time barred.
The outcome decision on the appointment of a given candidate may not satisfy all applicants, but the purpose of the recruitment process is to pick a candidate best suited for the job.
The court finds no matter of discrimination against the petitioner.
Without any written letter appointing the petitioner as managing director or general manager to claim the salary due under such positions or that an acting position and allowances due be paid is without foundation.
Issues in the judgment
#Internal inconsistency in dates: the petition states the cancellation of the 24th March 2016 re-designation occurred on 22nd April 2016, while the petitioner's testimony refers to cancellation on 2nd April 2016
Internal inconsistency: the petitioner's testimony refers to a letter of 3rd August 2016 reverting him to marketing services manager while the petition narrative dates the reversion letter as issued with the Board meeting scheduled for 4th August 2016 and the letter written on 6th August 2016 seeking protection
The judgment inconsistently describes the letter of 6th December as dated 2017 in one passage and 2018 in another ('6th and 17th December, 2017 letters' versus '6th December, 2018 letter')
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ernest Moturi Ogwora v National Cereals & Produce Board & another [2021] KEELRC 1407 (KLR)", Case Analysis (2021). Petition No. 145 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1407/eng@2021-06-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.