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ELRCPartially AllowedNot stated in the judgment as reproduced· [2014] KEELRC 1211 (KLR)

Simon Kiprotich Chepchowoi v Nandi Tea Estates Limited [2014] KEELRC 1211 (KLR)

Industrial Court (Employment and Labour Relations Court)
31 July 2014
1,771 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employer who reports an employee to police and then sacks them after an acquittal must pay full wages for the entire period the employee was kept out of work.

What this practically means

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Executive summary

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The claimant, employed by the respondent as a clerk from 1.02.2003, was arrested on 5.11.2008 following the respondent's report that he had stolen tea leaves valued at Kshs.1,200,000.00. He was charged with stealing by clerk but acquitted under section 215 of the Criminal Procedure Code on 3.10.2012 after the trial court found he had no case to answer. His advocates demanded redress; the respondent's advocates replied that termination was on account of gross misconduct. The court framed three issues: whether the claimant was terminated, whether the termination was fair, and what remedies were due. It found the claimant was constructively terminated because, having been kept away from work since the 2008 arrest, he was entitled to consider himself terminated once the employer made the criminal complaint. Applying principles it had set out in Mathew Kipchumba Koskei v Baringo Teachers SACCO, the court held that an employer who makes a criminal complaint is bound by the outcome of the criminal process and may not punish on the same grounds after an acquittal. The termination was therefore unfair for want of a valid reason under section 43 of the Employment Act, 2007, and 12 months' compensation of Kshs.95,748.00 was awarded. The court further awarded underpayment of Kshs.13,849.00, two months' notice pay of Kshs.15,958.00, full salary of Kshs.380,164.00 for the period 5.11.2008 to 3.10.2012 on the basis of entitlement to at least partial reinstatement, and CBA gratuity of Kshs.56,840.00. Leave was refused as it never accrued. Judgment was entered for the claimant for a total of Kshs.562,559.00 payable by 1.09.2014, with interest, a certificate of service, and costs of the suit to the claimant.

Key legal issues

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01

Whether the claimant was terminated

Holding

The claimant was constructively terminated from employment upon the employer's report leading to his arrest and prosecution

Reasoning

Since his arrest in 2008 over the respondent's complaint, the claimant was never allowed back to work. The court held the claimant was entitled to consider himself terminated once the employer made the complaint leading to arrest and prosecution, amounting to constructive termination.

p. 2
02

Whether the termination was fair

Holding

The constructive termination was unfair for want of a valid reason under section 43 of the Employment Act, 2007

Reasoning

Applying the principles in Koskei v Baringo Teachers SACCO, once the employer made the criminal report it was bound by the outcome of the criminal process. The claimant was acquitted under section 215 of the Criminal Procedure Code, so the respondent had no valid reason to terminate. Considering 10 years' service and the claimant's non-contribution, 12 months' compensation was awarded.

p. 3
03

Whether the claimant is entitled to the other remedies prayed for

Holding

Underpayment (Kshs.13,849.00), notice pay (Kshs.15,958.00), full salary for the excluded period (Kshs.380,164.00) and CBA gratuity (Kshs.56,840.00) were awarded; accrued leave was refused

Reasoning

The court found entitlement to the underpayment difference, two months' notice pay under clause 28(b) of the CBA, and 21 days' pay per year gratuity under clause 21(a). Relying on its decision in the Timber Treatment case, it awarded salaries for the period the claimant was kept away from work. Leave was refused because leave could not accrue while he was away from work and already compensated for those periods.

p. 3

Legal principles established

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  • Where an employer makes a criminal complaint against an employee instead of concluding its own disciplinary process, it is bound by the outcome of the criminal process
  • Where an employee is exculpated by the criminal process, the employer may not impose punishment on substantially the same grounds
  • An employee unlawfully or unfairly suspended or terminated is entitled to at least partial reinstatement and payment of salaries for the period kept away from work, unless he took other gainful employment or failed to exculpate himself

Court orders

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  1. 1.Declaration that the constructive termination of the employment of the claimant was contrary to the Employment Act No. 11 of 2007 and CBA signed on 26.11.2008
  2. 2.Respondent to pay the claimant a sum of Kshs.562,559.00 by 1.09.2014, failing which interest at court rates from the date of judgment till full payment
  3. 3.Respondent to deliver to the claimant the certificate of service by 1.09.2014
  4. 4.Respondent to pay costs of the suit

Authorities

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Legislation

  • Penal Codesection 281
  • Criminal Procedure Codesection 215
  • Employment Actsection 43
  • Employment Actsection 49(4)(f)

Cases cited (3)

  • Mathew Kipchumba Koskei v Baringo Teachers SACCO
    [2013] eKLR, Industrial Cause No. 37 of 2013 at Nakuru
  • John Kirui Torongei v National Cereals and Produce Board
    [2013] eKLR
  • Kenya Union of Printing, Publishing, Paper Manufacturers and Allied Workers v Timber Treatment International Limited
    [2013] eKLR, Industrial Cause No. 21 of 2012 at Nakuru
Jurisdiction invoked
Original jurisdiction under the Employment Act, 2007 over the unfair termination claim

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Simon Kiprotich Chepchowoi v Nandi Tea Estates Limited [2014] KEELRC 1211 (KLR)", Case Analysis (2014). Not stated in the judgment as reproduced. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/1211/eng@2014-07-31

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.