Simon Kiprotich Chepchowoi v Nandi Tea Estates Limited [2014] KEELRC 1211 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the claimant was terminated
The claimant was constructively terminated from employment upon the employer's report leading to his arrest and prosecution
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.
Whether the termination was fair
The constructive termination was unfair for want of a valid reason under section 43 of the Employment Act, 2007
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.
Whether the claimant is entitled to the other remedies prayed for
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
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.
Legal principles established
#- 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
#- 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.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.Respondent to deliver to the claimant the certificate of service by 1.09.2014
- 4.Respondent to pay costs of the suit
- Jurisdiction invoked
- Original jurisdiction under the Employment Act, 2007 over the unfair termination claim
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.