Timothy Asudi Malwa v E-Gap Solutions Limited & another [2014] KEELRC 847 (KLR)
The bottom line
#Kenya's Employment Court ruled that an employee's criminal acquittal does not stop an employer from taking disciplinary action, and police conduct cannot be dragged into employment cases.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the Industrial Court over the application for joinder
The Court's jurisdiction is confined to employment and labour relations disputes under Section 12(1)(a) of the Industrial Court Act, 2011; the application concerned the conduct of a criminal prosecution, which is not within that jurisdiction.
The Court held that Section 12(1)(a) donates exclusive original and appellate jurisdiction over disputes relating to or arising out of employment. The Respondent's complaint was essentially about the manner in which the police investigated and prosecuted Criminal Case No. 2687 of 2010, a matter outside the employment dispute between the parties, and therefore the Court had no jurisdiction to entertain it.
Relationship between criminal acquittal and employment disciplinary processes
A criminal trial and internal disciplinary proceedings are distinct; an acquittal does not shield an employee from disciplinary action, nor does departing from a criminal outcome render an employer's decision wrongful.
Relying on Kibe v Attorney General, the Court reasoned that the two processes have different procedural and standards of proof requirements. An employer may rely on a criminal trial outcome but need not follow it. Conversely, the employer must have a solid basis for disciplinary action irrespective of criminal proceedings, and cannot shift that responsibility to the Police.
Whether joinder of the intended Third Party was warranted
No case for joinder was made out; the alleged nexus between the police laxity and the Claimant's acquittal was neither established nor particularised.
The Respondent sought joinder on the basis that the Third Party bungled the criminal case, hoping a conviction would forestall termination claims. The Court found that the alleged laxity was not particularised and that the proper remedy for dissatisfaction with police investigation or prosecution does not lie in joinder to an employment dispute.
Legal principles established
#- Acquittal in a criminal case does not automatically render an employee immune to disciplinary action by an employer
- A criminal trial and internal disciplinary proceedings are distinct processes with different procedural and standard of proof requirements
- An employer cannot abdicate its disciplinary responsibility to the Police, and alleged police laxity is not remedied by joinder in an employment dispute
Court orders
#- 1.The Respondent's application for joinder of the intended Third Party is disallowed
- 2.No order for costs
- Jurisdiction invoked
- Section 12(1)(a) of the Industrial Court Act, 2011 read with Article 162(2) of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Timothy Asudi Malwa v E-Gap Solutions Limited & another [2014] KEELRC 847 (KLR)", Case Analysis (2014). Statement of Claim dated 19th July 2013 (Cause number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/847/eng@2014-03-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.