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ELRCDismissedNot stated in the judgment as provided· [2015] KEELRC 772 (KLR)

Esther Wangari Waithaka v County Government of Nyandarua [2015] KEELRC 772 (KLR)

Employment and Labour Relations Court
17 July 2015
BOByram Ongaya
804 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled that an employee suspended for theft who is later convicted loses the right to salaries withheld during suspension.

What this practically means

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Executive summary

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The claimant, employed by the County Council of Nyandarua on 16 November 1984 as a cleaner and later promoted to market master, was suspended on 14 November 1997 on account of stealing from the employer. She was charged in Nyahururu Principal Magistrate's Court Criminal Case No. 3363 of 1997 with stealing by servant of Kshs. 28,418.00 by reason of her employment, and was convicted before 5 October 1998. She remained on suspension until 15 November 2006 when the council dismissed her without payment of the salaries and allowances withheld during the suspension. Through an amended statement of claim filed on 2 September 2014 substituting the County Government of Nyandarua for the council, she sought Kshs. 429,037.05 in unpaid salaries and allowances, interest, and costs. The respondent opted not to call a witness; the claimant testified and both parties filed submissions. The sole issue was whether the claimant was entitled to the withheld salaries and allowances. Relying on Grace Gacheri Muriithi v Kenya Literature Bureau, the court held that payment during suspension depends on the outcome of the disciplinary process, and since the claimant had been convicted of stealing by servant she had not exculpated herself. The belated 2006 termination was held valid and the claim was dismissed. However, considering the respondent's failure to respond to the demand letter and the belated termination, the court ordered each party to bear its own costs. Judgment was delivered at Nyeri on 17 July 2015 by Byram Ongaya, Judge.

Key legal issues

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01

Entitlement to salaries and allowances withheld during suspension where the employee was convicted of a criminal offence arising from the employment

Holding

The claimant is not entitled to the withheld salaries and allowances because she was suspended for theft and convicted of stealing by servant, and did not exculpate herself; the belated termination in 2006 was valid.

Reasoning

The court adopted the principles in Grace Gacheri Muriithi v Kenya Literature Bureau that an employee on suspension has a legitimate expectation of pay only if exculpated at the end of the disciplinary process. The claimant was convicted of stealing by servant in Principal Magistrate's Court Criminal Case No. 3363 of 1997, so she remained culpable. The court nonetheless considered the respondent's failure to reply to the demand letter and the belated 2006 termination in deciding on costs.

p. 2

Legal principles established

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  • Whether an employee is paid for a period of suspension or interdiction depends on the outcome of the disciplinary process; an employee found culpable is not entitled to pay for that period.

Court orders

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  1. 1.The amended statement of claim is dismissed
  2. 2.Each party shall bear own costs of the suit

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 41(1) (as cited within the quoted authority)

Cases cited (1)

  • Grace Gacheri Muriithi –Versus- Kenya Literature Bureau
    (2012) eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over the employment claim (constitutional reference to Article 41(1) arises only in the cited authority, not as the basis of the suit)

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, "Esther Wangari Waithaka v County Government of Nyandarua [2015] KEELRC 772 (KLR)", Case Analysis (2015). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/772/eng@2015-07-17

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