Why Daizy Cherogony lost case despite court saying she did the right thing in asking Matiang’i to queue

By Eunice Sigei, Sarah Ibrahim and Brian Okoth

“Disrespecting” former Education minister Fred Matiang’i -- and not because she asked him to queue -- is the key reason Daizy Cherogony -- a former security supervisor at the JKIA -- justifiably lost her job, the Employment and Labour Relations Court in Nyeri ruled on Thursday, February 13.

Justice Nzioki wa Makau observed that Cherogony was within her duty rights to ask the minister to queue as he was being cleared at the JKIA, given Matiang’i had not requested -- in advance -- for preferential treatment as dictated by immigration guidelines. The incident happened on April 5, 2017.

However, the court found Cherogony at fault for “mistreating” and “disregarding” the minister based on her actions that were captured on CCTV cameras at the JKIA.

“In this case, it was not improper to require the Cabinet Secretary Dr. Fred Matiang’i to undergo screening like other passengers. However, the claimant (Cherogony) was required to treat all clients and customers with courtesy and decorum,” reads a part of Justice Makau’s ruling.

“The CCTV footage that was captured that early morning (April 5, 2017) was played back in court. It showed the claimant interacting with the Cabinet Secretary. She is seen disregarding the CS and beckoning other passengers at the glass door.

“Whereas the verbal exchanges were not available, it is clear there was some disregard for the passenger who turned out to be the Cabinet Secretary for Education at the time… Whereas the Cabinet Secretary was not cleared for preferential treatment on that material date, the respondent (Kenya Airports Authority) was right that the claimant mistreated him (Matiang’i), thus breaching the contract of employment she had,” ruled the judge.

Justice Makau said KAA was, therefore, within its rights to sack Cherogony on disciplinary grounds.

“As provided for under Section 43 of the Employment Act as read with Section 45, it was upon the claimant to show that an unfair termination took place while the respondent had the duty to demonstrate there were valid and genuine reasons for the dismissal. The improper handling of the passenger was sufficient basis for the respondent (KAA) to initiate disciplinary action against the claimant (Cherogony),” observed the judge.

After being given an opportunity for a fair hearing by KAA, Cherogony was eventually fired, with the judge observing that due process was followed in the termination of her contract.

“… Since there was cause for the dismissal and basis for a summary dismissal on account of gross misconduct, the suit (by Cherogony) is only fit for dismissal,” said the judge on February 13 as he threw out the complainant’s suit.

In May 2017, Cherogony sued KAA, her former employer, for her alleged wrongful dismissal.

The complainant averred that she was employed by the respondent in the position of a Security Warden Job Grade 11 from 17th February 2006.

She further stated that she was later -- on the 19th of January 2009 -- promoted to a senior warden grade S.4 with a starting monthly salary of Ksh23, 367 and a house allowance of Ksh14, 018.

Cherogony would, again, on August 31, 2015, be promoted to the position of Security Supervisor Grade S.5 with a gross salary of Ksh128, 900.

On the day she allegedly mistreated Matiang’i, Cherogony said she reported to work at 6pm and continued with her duties until 5am, April 6.

She said that the [human traffic] situation worsened as it started raining and traffic increased.

Cherogony claimed the passengers started shouting but the she calmed them down and went to open the second gate.

She recounted that it was at that point that she saw the then-Education Cabinet Secretary Dr. Fred Matiang’i claiming that he was subjected to embarrassment by Cherogony by requiring him to line up for security check up.

She told the court that on the 6th of April 2017 she received a verbal request from the manager requiring her to write a statement on what transpired on the 5th of April 2017, and specifically about the mistreatment of the then-Education CS, Fred Matiang’i.

Cherogony said she handed her statement to the Airport Manager and on the 7th of April 2017 she received a letter requiring an explanation for mistreating and humiliating the minister by requiring him to line up for security check up at terminal 1D.

She said in her affidavit that that she received another letter suspending her from duty with immediate effect to pave way for further investigations.

She told the court that she was invited to a disciplinary hearing by a letter dated 12th of April 2017, and she was to appear on the 19th of April 2017.

She said that on the 11th of May 2017, she received a summary dismissal letter on grounds of gross misconduct.