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ELRCDismissedCause 1492 of 2011· [2013] KEELRC 496 (KLR)

DAVID KEMEI V ENERGY REGULATION COMMISSION [2013] KEELRC 496 (KLR)

Industrial Court of Kenya
19 February 2013
2,953 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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David Kemei, a Financial Analyst employed by the Energy Regulation Commission from 2000, was interdicted in November 2006 after being charged in Nairobi Chief Magistrate's Court with stealing by servant, and was summarily dismissed on 2nd January 2008 on the same facts. He was acquitted in the criminal trial on 6th January 2011 and thereafter sued for declarations that his dismissal was unfair and unlawful, claiming over Kshs. 73 million in notice pay, severance, salary arrears, damages and projected earnings, plus reinstatement-type benefits. The Respondent conceded the employment and dismissal but contended the disciplinary process followed its Human Resource Manual, that it was not bound to await the criminal trial, that the claimant refused to answer the show-cause letter, and that the claim was time-barred. Rika J held that the employment disciplinary process is a private mechanism independent of the public criminal process; an acquittal does not tie the employer's hands, and double jeopardy does not arise absent an express contractual or legal link between the two processes. The anti-corruption statutes did not apply because the charges were ordinary Penal Code offences, and section 62 of the Anti-Corruption and Economic Crimes Act does not derogate from dismissal powers under other laws. The Employment Act 2007 did not apply to a 2008 dismissal, and the claimant failed to invoke the proper procedure for claims under the repealed Act. The court also faulted the claimant for concealing a parallel High Court malicious prosecution suit. The claim was dismissed in its entirety with no order on costs.

Key legal issues

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01

Whether the employer was bound to await the outcome of the criminal trial before dismissing the Claimant

Holding

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.

Reasoning

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.

p. 4
02

Whether the Anti-Corruption and Economic Crimes Act and Public Officer Ethics Act applied

Holding

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.

Reasoning

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.

p. 4
03

Procedural fairness of the dismissal

Holding

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.

Reasoning

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.

p. 5
04

Applicability of the Employment Act 2007 and limitation

Holding

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.

Reasoning

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.

p. 5

Legal principles established

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  • 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

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  1. 1.The claim is dismissed in its entirety
  2. 2.No order on the costs

Authorities

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Legislation

  • Energy ActNumber 12 of 2006
  • Public Officer Ethics ActCap 183; section 2
  • Anti-Corruption and Economic Crimes ActCap 65; section 62
  • Employment Act 2007sections 18, 35(6), 44(4)(g), 45, 90
  • Employment Act (repealed)Cap 226; section 84 referenced re Labour Relations Act procedure
  • Labour Relations ActNumber 14 of 2007; section 84
  • Penal Codecharges of Stealing by Servant and Attempting to Steal
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

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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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.