Ng'etich v Muki Sacco Society Limited (Civil Appeal 6 of 2020) [2024] KECA 964 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that an employee who refuses to answer legitimate questions during an investigation can be lawfully dismissed, though notice pay may still be owed.
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 appellant was unlawfully or unfairly terminated from employment
- 2.Whether the trial court's findings on the disciplinary process and the appellant's conduct before the executive committee were supported by evidence and law
- 3.Whether the Court should reappraise the evidence as a first appellate court and interfere with the judgment of the Employment and Labour Relations Court
Key legal issues
#Whether the termination of the appellant was unlawful or unfair
The termination was lawful: the appellant's refusal to answer questions and insulting conduct before the executive committee warranted summary dismissal under section 44(4) of the Employment Act, and his suspension status made no difference as he remained an employee.
The Court found that the summons to appear before the executive committee was not itself a show-cause or disciplinary step, the 14-day suspension had expired, and the appellant, as CEO, was expected to be knowledgeable about transactions in his day-to-day duties. His refusal to answer questions and premature retreat into defence mode obstructed the investigation. The Court found no plausible reason to interfere with the trial court's finding that the termination was lawful under the circumstances.
Entitlement to payments notwithstanding lawful termination
Because the termination letter did not specify the manner of termination and the respondent opted to terminate rather than summarily dismiss, the award of three months' salary in lieu of notice, pay for 5 days worked in December 2016 and accrued leave, aggregating Kshs. 843,287, was upheld, subject to sections 49(2) and 19 of the Employment Act.
The Court noted the termination letter did not specify the manner of termination. Having found the conduct justified summary dismissal but the respondent chose ordinary termination, the trial court's award of notice pay, salary for days worked and accrued leave was not disturbed. Any set-off was left to sections 49(2) and 19 of the Employment Act and to execution proceedings outside this appeal.
Mandate of a first appellate court
As a first appeal, the Court is empowered under Rule 31 of the Court of Appeal Rules to reappraise the evidence and make its own findings where necessary, subject to section 3(1) of the Appellate Jurisdiction Act flowing from Article 164(3) of the Constitution.
The Court framed its review function before determining the merits, citing its own prior decision in KSC International. It applied that standard by re-examining the circumstances of the suspension, the summons and the appellant's conduct before the executive committee, but ultimately reached the same conclusion as the trial court on the lawfulness of the termination.
Legal principles established
#- A first appellate court has a duty to re-evaluate, re-assess and re-analyse the evidence on record and determine whether the conclusions of the trial judge should hold
- A suspension is an interim measure pending investigation; where an issue is to be addressed, the employee must be issued a notice to show cause and allowed a hearing in terms of section 41 of the Employment Act
- An employee remains an employee whether at work or on suspension and cannot hold the employer at ransom; an employee's refusal to obey lawful directions and insulting behaviour towards persons in authority may warrant summary dismissal under section 44(4) of the Employment Act
Court orders
#- 1.The appeal is unmerited and is hereby dismissed
- 2.The judgment and decree of the Employment and Labour Relations Court at Nakuru in Cause No. 49 of 2017 issued on 14th November 2019 be and is hereby affirmed
- 3.The appellant to meet the respondent's costs of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Employment and Labour Relations Court at Nakuru
- Cause No. 49 of 2017
- Jurisdiction invoked
- Article 164(3) of the Constitution, flowing through section 3(1) of the Appellate Jurisdiction Act; first appeal under Rule 31 of the Court of Appeal Rules
Relief refused
#The appellant's appeal seeking to overturn the termination findings
The Court found the termination lawful because the appellant's conduct justified summary dismissal under section 44(4) of the Employment Act
Respondent's complaint regarding garnishee proceedings against its funds
No formal prayer in the appellate process; execution proceedings not under appeal
Costs
The appellant to meet the respondent's costs of the appeal
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.
This being a first appeal, this Court has a duty to re-evaluate, re-assess and reanalyse the evidence on record and then determine whether the conclusions reached by the learned trial Judge should hold
A suspension is just but an intervening measure to remove the employee from the shop floor to allow for investigation and if the employee is not found culpable to be recalled back to work
The appellant's conduct in our view amounted to conduct that warranted summary dismissal under section 44(4) of the Employment Act.
The appeal is unmerited and is hereby dismissed
The judgment and decree of the Employment and Labour Relations Court at Nakuru in Cause No. 49 of 2017 issued on 14th November 2019 be and is hereby affirmed.
The appellant to meet the respondent's costs of the appeal.
Issues in the judgment
#The judgment inconsistently refers to the appellate mandate as both 'section 31 of the Court of Appeal Rules' (in the appellant's submissions) and 'Rule 31 of the Court of Appeal Rules' (in the Court's own statement)
The judgment does not name the respondent in the body of the text, referring to it only as 'the respondent'
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ng'etich v Muki Sacco Society Limited (Civil Appeal 6 of 2020) [2024] KECA 964 (KLR)", Case Analysis (2024). Court of Appeal, Civil Appeal (Employment and Labour Relations) – Cause No. 49 of 2017 appeal. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/964/eng@2024-07-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.