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ELRCPartially AllowedCause No 974 of 2011· [2015] KEELRC 754 (KLR)

Chrispinus Ouma Okiya v City Council of Nairobi & another [2015] KEELRC 754 (KLR)

Employment and Labour Relations Court
3 July 2015
MNMathews Nduma Nderi
1,560 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan driver fired for misusing a government vehicle won back pay for his suspension, but the court upheld his dismissal despite his criminal acquittal.

What this practically means

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Executive summary

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The Claimant was employed by the City Council of Nairobi as a watchman in 1987 and later deployed as a driver in the Department of Health. He was suspended in July 2003 after being found with a jerican of petrol allegedly siphoned from the Government vehicle he was driving, arrested, and charged in Criminal Case No. 1270/2003. He was acquitted under Section 210 of the Criminal Procedure Code for lack of evidence, but was nonetheless summarily dismissed on 19th September 2005 on the same allegations. His appeals and a review to the Public Service Commission confirmed the dismissal, and a request for reinstatement supported by the Joint Staff Committee and the Public Complaints Standing Committee was refused. He sought declarations of unfair and unlawful dismissal, reinstatement, unpaid salary, and in the alternative terminal benefits including twelve months' compensation. The Respondents maintained the dismissal was for gross misconduct following a fair procedure. The Court held that the Claimant's explanation was unsatisfactory - a Government driver has no discretion to take a broken vehicle to a garage of choice and was found with a jerican of petrol - so there was a valid reason for dismissal, and the procedure followed, including two appeals, was fair. The Court reiterated that a criminal acquittal does not automatically exonerate an employee in disciplinary proceedings, the standard of proof differing between the two. However, because the Claimant was kept under suspension throughout the criminal trial, he was awarded Kshs.134,832.00 being salary for the suspension period, with interest at Court rates. The claim for compensation for unlawful dismissal was dismissed, and the Claimant, being partly successful, was awarded costs.

Key legal issues

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01

Validity of reason for summary dismissal

Holding

The Respondent had a valid reason to summarily dismiss the Claimant

Reasoning

The Court was not satisfied with the Claimant's explanation for diverting a Government vehicle to a private garage. No Government driver has discretion to take a broken vehicle to a garage of choice, and the Claimant was found with a jerican full of petrol. His explanation was unsatisfactory.

p. 3
02

Fairness of disciplinary procedure

Holding

The Respondent followed the laid-down procedure, including interdiction, response to charges, and two appeals to the Public Service Commission

Reasoning

The Claimant was interdicted, responded to charges, and was allowed first and second appeals to the Public Service Commission, which confirmed the summary dismissal.

p. 3
03

Effect of criminal acquittal on disciplinary proceedings

Holding

Acquittal does not automatically exonerate the employee in a disciplinary hearing

Reasoning

Criminal prosecution and disciplinary proceedings are separate processes with different standards of proof. This is a settled legal position in most jurisdictions including Kenya.

p. 3
04

Entitlement to salary during suspension

Holding

The Claimant is entitled to salary for the period of suspension pending the criminal case

Reasoning

Because the Respondent kept the Claimant under suspension from May 2003 to September 2005 pending the criminal case, he was entitled to salary of Kshs.134,832.00 for that period.

p. 3

Legal principles established

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  • Acquittal in a criminal trial does not automatically exonerate an employee in disciplinary proceedings
  • The standard of proof differs between criminal trials and disciplinary hearings

Court orders

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  1. 1.The Respondent to pay the Claimant Kshs.134,832.00 being salary for the period of suspension from May 2003 to September 2005
  2. 2.Interest on the award of Kshs.134,832.00 at Court rates until payment in full
  3. 3.The Claim for compensation for unlawful dismissal dismissed
  4. 4.The Claimant awarded costs of the suit

Authorities

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Legislation

  • Criminal Procedure CodeSection 210
  • Public Service Commission Local Service Officers RegulationsClause 32(1)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act (not expressly cited in the judgment excerpt)

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, "Chrispinus Ouma Okiya v City Council of Nairobi & another [2015] KEELRC 754 (KLR)", Case Analysis (2015). Cause No 974 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/754/eng@2015-07-03

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