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ELRCPartially AllowedNot stated in the judgment· [2016] KEELRC 176 (KLR)

Douglas Murithi Magiri v Teachers Service Commission [2016] KEELRC 176 (KLR)

Employment and Labour Relations Court
9 December 2016
BOByram Ongaya
2,048 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 employer cannot fire an employee for a crime when a court has already acquitted them of that crime.

What this practically means

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Executive summary

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The claimant, a P1 teacher employed by the Teachers Service Commission on 05.12.1990, was interdicted on 18.07.2011 and dismissed by letter dated 27.09.2011 on allegations of immoral behaviour, namely defilement of a 14-year-old pupil. He was simultaneously removed from the register of teachers. He had been charged with defilement and indecent assault under the Sexual Offences Act and was acquitted on both counts under section 215 of the Criminal Procedure Code on 10.10.2012. He sued for declarations that his termination and removal from the register were unprocedural, unfair and wrongful, reinstatement, and general damages. The respondent counterclaimed for a refund of Kshs.162,380.70 alleged salary overpayment. The court, per Byram Ongaya J, framed three issues: whether the termination was unfair, and the entitlement to remedies by each party. Relying on its earlier decision in David Nyamai v Del Monte Kenya Limited, the court held that only a court of competent jurisdiction may determine criminal liability, and an employer whose sole reason for dismissal is an alleged offence must await the criminal outcome and is bound by it. The claimant's acquittal meant there was no valid reason for dismissal under section 43 of the Employment Act, though procedural fairness under section 41 had been accorded. The Court of Appeal decision in TSC v Joseph Wambugu Nderitu was distinguished. Reinstatement into employment was unavailable under section 12(3)(vii) of the ELRC Act, but the court ordered reinstatement of the claimant's name to the register of teachers and awarded six months' gross salaries (less tax) under section 49(1)(c), considering the claimant's contribution to his predicament. The counterclaim was abandoned in submissions and dismissed with costs. The respondent was ordered to pay the claimant's costs.

Key legal issues

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01

Whether termination was unfair for want of a valid reason

Holding

The termination was unfair for want of a valid reason under section 43 of the Employment Act, 2007 because the sole reason was the alleged offences for which the claimant was subsequently acquitted.

Reasoning

The court held that criminal liability can only be determined by a court of competent jurisdiction, citing its own decision in David Nyamai. Since the employer dismissed the claimant solely on the alleged offences, and the criminal court later acquitted him under section 215 of the Criminal Procedure Code, there was no valid reason at the time of dismissal. The employer should have awaited the criminal outcome while the claimant remained on interdiction or suspension.

p. 3
02

Procedural fairness

Holding

Procedural fairness was accorded: notice and hearing under section 41 were satisfied; the alleged appeal was not delivered.

Reasoning

The claimant attended a disciplinary hearing on 27.09.2011 and had denied the allegations in writing. The court found due process under section 41 was met. The claimant's alleged appeal was not established as delivered, since the respondent denied receipt and no evidence of delivery was produced.

p. 3
03

Counterclaim for salary overpayment

Holding

The counterclaim was abandoned in submissions and declined.

Reasoning

The respondent, in its submissions, abandoned the counterclaim seeking a refund of Kshs.162,380.70 as salary overpayment. The court accordingly declined it and dismissed the counterclaim with costs.

p. 4

Legal principles established

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  • Employers lack power to make findings of criminal liability against an employee; only a court of competent jurisdiction may do so, and where the sole reason for termination is an alleged offence, the employer is bound by the outcome of the criminal trial.
  • Where the sole reason for dismissal is an alleged offence and the employee is acquitted, the employer may not terminate the contract on the same particulars.

Court orders

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  1. 1.Declaration that the claimant's termination from employment and the subsequent removal of his name from the register of teachers was unfair
  2. 2.Declaration that the claimant's name be forthwith reinstated in the register of teachers
  3. 3.Respondent to pay the claimant 6 months' gross salaries (less tax) under section 49(1)(c) of the Employment Act, 2007
  4. 4.Counterclaim dismissed with costs
  5. 5.Respondent to pay the claimant's costs of the suit

Authorities

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Legislation

  • Sexual Offences Act No. 3 of 2006sections 8(1) and (3), 11(1)
  • Criminal Procedure Code Cap 75sections 4, 215
  • Penal Code Cap 63section 281
  • Employment Act, 2007sections 41, 43, 49(1)(c), 90
  • Employment and Labour Relations Court Act, 2007section 12(3)(vii)
  • Constitution of Kenya, 2010Article 50(2)(d)

Cases cited (2)

  • David Nyamai and 7 Others –Versus- Del Monte Kenya Limited
    [2015]eKLR
  • Teachers Service Commission –Versus- Joseph Wambugu Nderitu
    [2016]eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment and Labour Relations Court Act, 2007 and the Employment Act, 2007

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Douglas Murithi Magiri v Teachers Service Commission [2016] KEELRC 176 (KLR)", Case Analysis (2016). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/176/eng@2016-12-09

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