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ELRCDismissedMemorandum of Claim dated 29th May, 2015· [2016] KEELRC 1106 (KLR)

Leonard Makokha Kwena v Panocal International Ltd [2016] KEELRC 1106 (KLR)

Employment and Labour Relations Court
3 June 2016
DMD.K. Njagi Marete
1,730 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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An Kenyan court ruled that being acquitted of criminal charges does not protect an employee from being fired for the same misconduct at work.

What this practically means

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Executive summary

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The claimant, employed by the respondent as Human Resource Manager from 1st February 2007 to 27th November 2012 on a salary of Kshs. 38,600.00, sued for unfair termination, dismissal, non-payment of terminal dues and damages. He alleged he was implicated on fabricated charges of conspiracy to commit a felony and stealing by servant in Kitale Criminal Case No. 2956 of 2012, which charges were dismissed under section 215 of the CPC, and that he was never afforded a hearing before termination. He sought a declaration of unfair dismissal, terminal dues and damages totalling Kshs. 4,601,120/=, plus costs and interest. The respondent admitted the employment but asserted the claimant committed gross misconduct by listing ghost casual workers and converting their wages to his own use, causing financial loss and loss of confidence. She contended he was served with a show-cause letter and summoned before a disciplinary committee but ignored the summons and made no representation, justifying summary dismissal under sections 44(1), (3) and (4) of the Employment Act. The parties disposed of the matter by written submissions. The court framed three issues: wrongfulness of the termination, entitlement to relief, and costs. Relying on the unchallenged evidence of the disciplinary process and the principle (adopted from cited authorities) that acquittal in a criminal case does not immunise an employee from employer discipline, the court found the termination lawful and procedurally fair, holding the claimant failed to discharge his burden under section 47(5). The claim was dismissed on 3rd June 2016 with each party bearing its own costs.

Key legal issues

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01

Whether the termination was wrongful, unfair and unlawful

Holding

The termination was lawful and procedurally fair; the claimant was summoned before a disciplinary committee, ignored the summons, and gross misconduct under section 44(4) of the Employment Act justified summary dismissal

Reasoning

The court found the respondent's evidence of a show-cause letter and disciplinary committee summons unchallenged. The claimant admitted refusing to appear before the committee. Section 44(1), (3) and (4) permit summary dismissal for gross misconduct, including suspected criminal offences against the employer's substantial detriment. The acquittal in the criminal case did not render the employer's disciplinary decision wrongful, and the claimant failed to discharge the burden under section 47(5) of the Employment Act.

p. 4
02

Whether the claimant is entitled to the relief sought

Holding

No; disentitlement follows from the finding of lawful termination

Reasoning

Because the court found the termination lawful and procedurally fair, the declaratory relief, terminal dues of Kshs. 4,601,120/=, and 12 months' compensation could not be granted. The respondent had computed terminal dues of Kshs. 130,088.00 which the court noted, but the claimant's broader claims were contingent on a finding of unfair termination.

p. 4

Legal principles established

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  • Acquittal in a criminal case does not automatically render an employee immune to disciplinary action by an employer; criminal trial and internal disciplinary proceedings are distinct processes

Court orders

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  1. 1.Dismissal of the claim
  2. 2.Each party to bear its own costs of the claim

Authorities

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Legislation

  • Penal Codesection 393
  • Penal Codesection 281
  • Criminal Procedure Codesection 215
  • Employment Act, 2007section 44(1)
  • Employment Act, 2007section 44(3)
  • Employment Act, 2007section 44(4)
  • Employment Act, 2007section 47(5)

Cases cited (2)

  • Wenslaus Oduki Odinga vs. Kenyatta National Hospital Board
    (2013) eKLR
  • David O. Owino vs. Kenya Institute of Special Education
    (Industrial Court Case No. 453 of 2013)
Jurisdiction invoked
Employment and labour relations jurisdiction over a claim of unfair termination, dismissal, non-payment of terminal dues and damages

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, "Leonard Makokha Kwena v Panocal International Ltd [2016] KEELRC 1106 (KLR)", Case Analysis (2016). Memorandum of Claim dated 29th May, 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1106/eng@2016-06-03

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