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ELRCDismissedNot stated in judgment· [2016] KEELRC 312 (KLR)

Joash Mongare National Oil Co-operation of Kenya [2016] KEELRC 312 (KLR)

Employment and Labour Relations Court
14 November 2016
DMD.K. Njagi Marete
1,317 words in judgment
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The bottom line

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A Kenyan court dismissed an employee's unfair dismissal claim because the old, repealed Employment Act governed his 2001 firing and allowed termination based on suspicion of theft.

What this practically means

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Executive summary

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The claimant, employed by the respondent as an Accounts Clerk from 1997, was suspended on 12th April, 2001 and charged with stealing by servant in Eldoret Cr.C. No. 2793 of 2001 over an alleged theft of Kshs.163,000. He was never paid during the suspension and trial, and after the criminal proceedings he sought resolution of the employment dispute without success. By an Amended Memorandum of Claim he sought a declaration that the indefinite suspension was a harsh, wrongful and unfair dismissal, compensation of gross salary for 20 years (Kshs.6,543,360 plus increments), a certificate of service, leave allowance, costs and interest. The respondent denied the claim, relying on s.17 of the repealed Employment Act, Cap 226, which permitted termination without notice of an employee reasonably suspected of a criminal offence against the employer, and pleaded limitation. The court framed three issues: lawfulness of the termination, entitlement to relief, and costs. Holding that the law applicable at the time of the 2001 termination was the repealed Act, and that s.17 sanctioned the termination on the suspicion of criminal offending (the repealed law lacking the fair-hearing safeguards of sections 41, 43 and 45 of the Employment Act, 2007), the court found the termination lawful. The claimant's reliance on the criminal case outcome was held unhelpful. The claim was dismissed with each party bearing their own costs. Judgment delivered on 14th November, 2016 by D.K. Njagi Marete, Judge.

Key legal issues

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01

Whether the termination of the claimant's employment was wrongful, unfair and unlawful

Holding

The termination was lawful because it was effected under s.17 of the repealed Employment Act, Cap 226, which permitted termination where the employee was reasonably suspected of a criminal offence against the employer, and the repealed law did not require the fair-hearing safeguards of the current Act

Reasoning

The court held that the law applicable at the time of the 2001 termination was the repealed Employment Act, Cap 226. Section 17(g) permitted termination without notice where an employee committed, or was on reasonable and sufficient grounds suspected of committing, a criminal offence against or to the detriment of the employer. The claimant had been charged with stealing by servant over alleged theft of Kshs.163,000. The repealed law, unlike the Employment Act 2007, did not provide the section 41 and 43 fair-procedure and proof safeguards, so the claimant's reliance on the current Act did not assist him.

p. 3
02

Whether the claimant is entitled to the relief sought

Holding

No; on a finding of lawful termination, the claimant is not entitled to the relief sought and the second issue lapses

Reasoning

Having found the termination lawful, the court held the claimant could not obtain the declaratory finding of unfair dismissal, the 20 years' salary compensation, certificate of service or leave allowance. The issue for determination on entitlement therefore lapsed. The court noted the claimant's reliance on the outcome of the criminal case at Eldoret would not offer much assistance in the circumstances.

p. 3

Legal principles established

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  • The law applicable at the time of termination governs the validity of the termination; under the repealed Employment Act, Cap 226, s.17, an employer could lawfully terminate employment where the employee commits or on reasonable and sufficient grounds is suspected of having committed a criminal offence against the employer or to the employer's substantial detriment

Court orders

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  1. 1.The claim is dismissed
  2. 2.Each party to bear their own costs of the claim

Authorities

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Legislation

  • Employment Act, 2007Section 41(1) and (2)
  • Employment Act, 2007Section 43(1) and (2)
  • Employment Act, 2007Section 45(1) and (2)
  • Employment Act, Cap 226 (repealed)Section 17, including s.17(g)

Cases cited (1)

  • Pius Ngao Mwenga v Kenya Tourist Development Corporation
    (2013) eKLR
Jurisdiction invoked
Jurisdiction as a first-instance employment and labour relations cause (Employment Act, 2007 claims); no specific constitutional or statutory jurisdictional provision cited in the judgment

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, "Joash Mongare National Oil Co-operation of Kenya [2016] KEELRC 312 (KLR)", Case Analysis (2016). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/312/eng@2016-11-14

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