DAVID KEMEI V ENERGY REGULATION COMMISSION [2013] KEELRC 496 (KLR)
The bottom line
#Kenya's employment court confirmed employers can discipline and dismiss workers for workplace offences even after a criminal court acquits them.
What this practically means
#Executive summary
#Key legal issues
#Whether the employer was bound to await the outcome of the criminal trial before dismissing the Claimant
No. The disciplinary process is an internal, private mechanism distinct from the public criminal process, and the acquittal did not preclude summary dismissal on the same facts.
The court held that the employment disciplinary process is private while the criminal process is public, with different procedures and standards of proof. Unless the contract, governing law or interdiction letter makes the disciplinary process subject to the criminal one, an employee cannot invoke double jeopardy. The two legitimate but different processes were not bound to reach the same outcome.
Whether the Anti-Corruption and Economic Crimes Act and Public Officer Ethics Act applied
They did not; the Claimant was charged under the Penal Code with stealing by servant and attempting to steal, not with corruption or economic crimes in a specialized jurisdiction.
The court noted the charge sheet and ruling made no mention of corruption or economic crimes, and there was no showing of investigation by anti-corruption officers or a specialized court. Section 62 of Cap 65 in any event does not derogate from powers to suspend or dismiss under any other law.
Procedural fairness of the dismissal
The dismissal was procedurally fair; the Claimant was called to show cause but refused to answer the charges, instead raising double jeopardy and sub judice arguments through his advocates.
The Claimant was charged and given a letter to show cause with a deadline; he did not respond personally. The Respondent then held a disciplinary meeting on 21st December 2007, found he had failed to answer the charges, and summarily dismissed him on 2nd January 2008. Nothing in the law or Manual compelled a stay of the disciplinary process.
Applicability of the Employment Act 2007 and limitation
The Employment Act 2007 did not apply to a dismissal of 2nd January 2008, as it came into force on 2nd June 2008; the repealed Employment Act Cap 226 governed, and the Claimant did not invoke the proper procedure under section 84 of the Labour Relations Act.
Dismissal predated the 2007 Act's commencement, so neither the limitation provision (section 90) nor the unfair termination provisions applied. The relevant statute was the repealed Employment Act Cap 226, which the Industrial Court could apply only following the procedure in section 84 of the Labour Relations Act, which the Claimant did not follow.
Legal principles established
#- An employer need not await the outcome of a criminal trial before conducting its own disciplinary process or summarily dismissing an employee, so long as it has reasonable, sufficient and justifiable grounds
- An acquittal in criminal proceedings does not bar a guilty finding in employment disciplinary proceedings; double jeopardy does not arise in the workplace context
Court orders
#- 1.The claim is dismissed in its entirety
- 2.No order on the costs
- Jurisdiction invoked
- Jurisdiction of the Industrial Court over employment disputes; the court held it could only apply the repealed Employment Act Cap 226 via section 84 of the Labour Relations Act Number 14 of 2007
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Job Kunsinjilu Alero v Teachers Service Commission [2020] KEELRC 652 (KLR)[2020] KEELRC 652 (KLR)16 Jul 2020applied
- Elias Omolo Oyoo v Mumias Sugar Co Ltd (Cause 312 of 2015) (Civ) [2016] KEELRC 1450 (KLR)[2016] KEELRC 1450 (KLR)18 Feb 2016
Cite this brief
#Cite this brief
Caselaw, "DAVID KEMEI V ENERGY REGULATION COMMISSION [2013] KEELRC 496 (KLR)", Case Analysis (2013). Cause 1492 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/496/eng@2013-02-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.