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ELRCDismissedCause No. 16 of 2014· [2016] KEELRC 1123 (KLR)

Peter Kiprop Kemei v Nandi Tea Estates Limited [2016] KEELRC 1123 (KLR)

Employment & Labour Relations Court of Kenya
23 May 2016
DMD. K. Njagi Marete
1,681 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 being acquitted of theft does not save your job if your employer lawfully dismissed you for absenteeism under the contract or CBA.

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 a permanent and pensionable basis, challenged his termination of 20th July 2011 as wrongful, unfair, unlawful and a summary dismissal. His case was that he was arrested and charged in Kapsabet Principal Magistrate's Court with stealing by servant over 279 bags of fertilizer belonging to the respondent, and was acquitted on 8th July 2013 under section 215 of the Criminal Procedure Code. He sought reinstatement, a declaration of wrongful termination, gratuity for 22 years' service, earnings for 10 unworked years, service pay, three months' salary in lieu of notice, costs and interest. The respondent denied the existence of a contract of service as alleged, contended the claimant absconded duty after his arrest contrary to clause 25(f) and (g) of the CBA with KPAWU, and relied on documents showing the claimant applied for, received and acknowledged full gratuity of Kshs.253,980/= and other terminal dues, confirming no further claim. The court framed three issues: whether termination was wrongful, unfair and unlawful; entitlement to relief; and costs. It held that the outcome of criminal proceedings does not bind employment determinations, and that constitutional and Employment Act fairness provisions must be tempered with the employment contract to avoid absurdity. Finding a serious case of breach of duty and trust and absenteeism under the CBA, the court concluded the termination was lawful. The claim was dismissed with each party bearing their own costs, dated and delivered at Kericho on 23rd May 2016.

Key legal issues

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01

Whether termination for absence from duty occasioned by arrest, detention and criminal prosecution was wrongful, unfair and unlawful

Holding

The termination was lawful; the CBA (clause 25) provided for summary dismissal where an employee is not set at liberty within 14 days or commits/suspected of committing a criminal offence against the employer's property, and the claimant's absence amounted to breach of duty and trust

Reasoning

The claimant was arrested, charged with stealing by servant over 279 bags of fertilizer belonging to the respondent, and absconded duty during his detention. The court held the contractual and CBA framework permitting summary dismissal took effect, and substantive/procedural justice provisions must be tempered with the employment contract so as not to occasion absurdity. Acquittal in the criminal trial did not bind the employment determination.

p. 4
02

Whether the claimant was entitled to the reliefs sought (reinstatement, gratuity, earnings for 10 years, service pay, notice pay)

Holding

No; having failed on unlawful termination, the entitlement dissipated. The respondent also demonstrated payment of full gratuity of Kshs.253,980/= and other terminal dues, which the claimant acknowledged

Reasoning

The second issue dissipated following the finding of lawful termination. The respondent's documents showed the claimant applied for and received full gratuity payment and confirmed no further claim. The claimant did not prove entitlement to remaining benefits.

p. 4

Legal principles established

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  • The outcome of criminal proceedings is not conclusive or binding in 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 to avoid absurdity

Court orders

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  1. 1.Dismissal of the 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, 45; Act No. 11 of 2007
  • Criminal Procedure Codesection 215
  • Collective Bargaining Agreement (KPAWU) 2012/2013clause 25(f) and (g)
Jurisdiction invoked
Employment and labour relations jurisdiction of the Employment & Labour Relations Court (employment termination dispute under the 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 1123 (KLR)", Case Analysis (2016). Cause No. 16 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1123/eng@2016-05-23

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