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ELRCDismissedCause No. 16 of 2014· [2016] KEELRC 1120 (KLR)

Peter Kiprop Kemei v Nandi Tea Estates Limited [2016] KEELRC 1120 (KLR)

Employment & Labour Relations Court of Kenya
23 May 2016
1,681 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court upheld a tea estate worker's dismissal, ruling his employment contract's summary dismissal clause outweighed his later criminal acquittal.

What this practically means

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Executive summary

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The claimant, formerly employed by the respondent as Clerk Grade I on permanent and pensionable terms, was charged in Kapsabet Principal Magistrate's Court with stealing by servant over missing bags of fertilizer belonging to the respondent and was acquitted on 8th July 2013 under Section 215 of the Criminal Procedure Code. His services had been terminated on 20th July 2011 while he was in custody, the respondent relying on clause 25(f) and (g) of the CBA with KPAWU which permitted summary dismissal for absence from duty following arrest for a cognizable offence or suspected commission of a criminal offence against the employer's property. The claimant sought reinstatement, a declaration that his dismissal was wrongful, unfair and unlawful, gratuity for 22 years' service, earnings for ten years, service pay and notice pay, contending breach of natural justice and the Employment Act, 2007. The respondent denied liability, asserting the claimant absconded duty after arrest amounting to gross misconduct, and that he had requested, received and acknowledged full gratuity of Kshs.253,980/= confirming no further claim. The court framed three issues: lawfulness of the termination, entitlement to relief, and costs. Holding that the fundamentals of the employment contract take preference and that constitutional and Employment Act protections must be tempered with the contract to avoid absurdity, and that criminal proceedings are not binding in employment disputes, Marete J found the termination lawful given the breach of duty and trust and the CBA's provision for summary dismissal. The claim was dismissed with each party bearing their own costs.

Key legal issues

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01

Whether the claimant's summary dismissal for absence from duty occasioned by his arrest, detention and criminal trial was wrongful, unfair and unlawful

Holding

The termination was lawful; the CBA governing the employment contract provided for summary dismissal where an employee is absent from duty following arrest for a criminal offence against the employer's property

Reasoning

The claimant was dismissed for absenteeism and absconding duty consequent upon his incarceration during criminal proceedings for stealing by servant involving the respondent's fertilizer. The court held that the fundamentals of the employment contract take preference in an employment relationship, and that constitutional and Employment Act protections of substantive and procedural justice must be tempered with the contract to avoid absurdity. The CBA at clause 25 clearly provided for summary dismissal in the circumstances, and the respondent established breach of duty and trust.

p. 4
02

Whether the claimant was entitled to the relief sought

Holding

No; having lost on the issue of unlawful termination, the claimant was not entitled to relief

Reasoning

The claim for reinstatement, declaration, gratuity, earnings for ten years, service pay and notice pay flowed from the finding of unfair termination. Since the court found lawful termination, the claim dissipated. Further, the respondent demonstrated that the claimant had requested, received and acknowledged full gratuity payment of Kshs.253,980/=, confirming no further claim against the respondent.

p. 4

Legal principles established

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  • The outcome of criminal proceedings is not conclusive or binding in a determination of rights under employment or contract law
  • Substantive and procedural justice under the Constitution and the Employment Act must be tempered with the employment contract so as not to occasion absurdity

Court orders

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  1. 1.Dismissal of the claimant's claim
  2. 2.Each party to bear their own costs of the claim

Authorities

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Legislation

  • Constitution of Kenya, 2010Bill of Rights
  • Employment Actsections 41, 44 and 45
  • Criminal Procedure CodeSection 215
Jurisdiction invoked
Employment and labour relations jurisdiction over a claim of wrongful, unfair and unlawful termination of employment (Employment Act, 2007)

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, "Peter Kiprop Kemei v Nandi Tea Estates Limited [2016] KEELRC 1120 (KLR)", Case Analysis (2016). Cause No. 16 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1120/eng@2016-05-23

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