Terrry Muringo Muchiri v K-Rep Group Limited [2021] KEELRC 1429 (KLR)
The bottom line
#A Kenyan court dismissed an employee's constitutional petition, confirming that employment disputes belong under the Employment Act and that company emails belong to the employer.
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 petition is proper and if so whether there are constitutional violations
- 2.Whether there was unlawful and unfair termination of employment
- 3.Whether the remedies sought should issue
Key legal issues
#Whether a constitutional petition was the proper vehicle for the employment dispute
The petition was improper; employment rights are governed by the Employment Act which provides adequate remedies, and the constitutional violations alleged were not particularised with precision. The petition was struck out.
Applying the doctrine of avoidance as articulated in Sumayya Athmani Hassan and Communications Commission, the court held Article 41 rights are enacted in the Employment Act and cannot be enforced by direct constitutional petition absent a challenge to the statute or proof of inadequate remedies. Further, the petition breached the Anarita Karimi Njeru precision rule as the alleged violations of privacy, dignity and fair labour practices were not particularised.
Whether the summary dismissal was unfair and unlawful
The dismissal was justified; the employer had valid reasons for gross misconduct and afforded the petitioner due process under sections 41 and 44 of the Employment Act.
The petitioner received a show cause notice on 17 February 2020, responded the same day, and attended a disciplinary hearing on 21 February 2020 with an employee of her choice. Her responses dwelt on procedure rather than the substantive allegations of falsification and misappropriation. Relying on Paul Wanyangah and Jennifer Osodo, the court found an employee who squanders the hearing opportunity cannot claim unfairness, and under section 43 the employer only needs to prove reasons it genuinely believed to exist.
Whether the respondent violated the petitioner's right to privacy by hacking and deleting her personal Gmail
No violation established; the claim was left bare on evidence.
The petitioner attached emails printed from her Gmail account after termination, showing the communications were still accessible and not deleted. The supporting affidavit of the IT expert Jackson Maina failed to identify which email account was accessed or deleted, leaving the IP address claim unsubstantiated. The court also observed that employer-allocated work tools remain the employer's property, citing Margaret Wairimu Gacheru v Beta Healthcare.
Legal principles established
#- Where legislation gives effect to a constitutional right, a litigant cannot found a cause of action directly on the Constitution without challenging the legislation
- A constitutional petition must set out with precision the complaint, the provisions infringed and the manner of infringement
- Summary dismissal is justified where the employer genuinely finds good cause for gross misconduct and adheres to sections 44 and 41 of the Employment Act
- An employee who squanders the opportunity to be heard cannot complain of unfair process
- Work tools including official email addresses allocated by an employer remain the employer's property
Court orders
#- 1.The petition as initiated lacks merit and is hereby dismissed
- 2.Costs to the respondent
- 3.The petitioner shall attend at the shop floor for clearance upon which terminal dues shall be tabulated and paid
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Article 41 of the Constitution and Article 162(2) establishing the Employment and Labour Relations Court; proceedings regulated by the Employment and Labour Relations Court (Procedure) Rules, 2016
Relief refused
#Declaration of violation of the right to privacy under Article 31(c) and (d) of the Constitution (hacking and deleting personal emails)
The claim was not particularised and the evidence was bare; the emails were printed and available, and the IT affidavit failed to identify the account accessed
Declarations of violation of rights to dignity (Article 28) and fair labour practices (Article 41) and general damages under Article 31
The petition was struck out as it should have been brought as a claim under the Employment Act, not a constitutional petition; the doctrine of avoidance applies
Terminal benefits (notice pay, 20 days' salary, 12 months' compensation, accrued leave days)
Terminal dues to be tabulated and paid only upon clearance and handing over at the shop floor
Certificate of service
Not granted in the final orders
Costs
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, the petition as initiated lacks merit and is hereby dismissed; with costs to the respondent. save the petitioner shall attend at the shop floor for clearance and upon which terminal dues shall be tabulated and paid.
where legislation has been enacted to give effect to a constitutional right, it is not permissible for a litigant to found a cause of action directly on the Constitution without challenging the legislation in question.
a Constitutional petition should set out with a degree of precision the petitioner's complaint, the provisions infringed and the manner in which they are alleged to be infringed.
Where an employee squanders the chance to be heard the employer cannot be found to have acted unfairly where great effort was taken and is demonstrated to have been applied to have the employee heard but such employee remained adamant and made irrational demands to avoid a hearing.
Where an employer allocates an employee work tools and including an email address, such is part of the employer's property and any communications with regard to official business of the employer via such tools remains the assets and property of the employer.
The alleged constitutional violations are not particularised with any precision and as outlined above, there exists legislation governing employment between the parties and a clear procedure for redress of any particular grievance prescribed by the Court Rules and that procedure should be strictly followed, thus the petition does not disclose a cause of action anchored on the Constitution. it should be struck out.
Issues in the judgment
#Petitioner's name spelled inconsistently ('TERRRY' in the caption)
The court describes the petition as struck out in one passage but the final orders record it as dismissed
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Terrry Muringo Muchiri v K-Rep Group Limited [2021] KEELRC 1429 (KLR)", Case Analysis (2021). Petition No. E036 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1429/eng@2021-04-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.