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ELRCPartially AllowedCause No 1622 of 2014· [2016] KEELRC 1518 (KLR)

Jonathan Masila Mutia v Leo Investments Limited [2016] KEELRC 1518 (KLR)

Employment and Labour Relations Court
18 March 2016
LNLinnet Ndolo
1,050 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 even employees accused of theft must get a fair hearing before dismissal, awarding the worker 12 months' salary.

What this practically means

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Executive summary

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The Claimant, formerly employed by the Respondent as a gardener and later swimming pool attendant/caretaker, was summarily dismissed on 4th April 2014 on allegations that he colluded with other employees to siphon fuel from the Respondent's generator. He sought salary arrears, notice pay, leave pay, twelve months' compensation for unlawful termination and general damages. At trial the Respondent admitted all claims save compensation for unlawful termination and general damages. The Claimant had been arrested and charged in the Chief Magistrate's Court at Kiambu but was acquitted under Section 210 of the Criminal Procedure Code. The court held, following Mbaru J in Kenya Union of Commercial Food and Allied Workers v Meru North Farmers Sacco Limited, that the procedural fairness requirements of Section 41 of the Employment Act, 2007 are mandatory even in cases of gross misconduct, and that criminal proceedings are distinct from internal disciplinary proceedings, per Milkah Khakayi Kulati v Sandstorm (Africa) Limited. The court found no reasonable grounds linking the Claimant to the alleged theft and held that the Respondent had no valid reason for dismissal and failed to observe procedural fairness. The Respondent's past warning letters were disregarded for want of proof of service. The court awarded the Claimant twelve months' salary (Kshs.216,000) with interest at court rates from the date of the award until payment in full, and costs of the case. The claim for general damages was dismissed.

Key legal issues

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01

Whether the dismissal was for a valid reason and with procedural fairness

Holding

The Respondent had no valid reason for dismissal and failed to comply with Section 41 procedural fairness; the Claimant was awarded 12 months' salary as compensation.

Reasoning

The Claimant was acquitted under Section 210 of the Criminal Procedure Code, and the court found no reasonable grounds linking him to the alleged siphoning of generator diesel. Valid reasons for termination must be established in the internal disciplinary process, which the employer failed to conduct. The employer also did not comply with the mandatory Section 41 hearing requirements. The court therefore found the termination both substantively and procedurally unfair.

p. 2
02

Whether pendency of criminal charges justifies dismissal

Holding

Criminal proceedings are distinct from internal disciplinary proceedings and cannot by themselves justify dismissal.

Reasoning

Relying on Milkah Khakayi Kulati v Sandstorm (Africa) Limited, the court held that an employer cannot rely on the pendency of criminal proceedings to justify disciplinary action, save where the law or internal disciplinary rules expressly provide for interdiction or suspension of an employee facing criminal proceedings.

p. 2

Legal principles established

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  • Even in cases of gross misconduct, the procedural fairness requirements of Section 41 of the Employment Act are mandatory
  • An employer cannot rely on pending criminal proceedings to justify disciplinary action; the two are distinct
  • The Court reviews the employer's disciplinary decision and process; it does not re-enact the internal disciplinary process

Court orders

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  1. 1.Award of Kshs.216,000 being twelve (12) months' salary in compensation for unjustifiable and unfair termination of employment
  2. 2.Interest on the award at court rates from the date of the award until payment in full
  3. 3.Claimant to have the costs of the case

Authorities

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Legislation

  • Employment ActSection 41(1) and (2)
  • Criminal Procedure CodeSection 210

Cases cited (2)

  • Kenya Union of Commercial Food and Allied Workers v Meru North Farmers Sacco Limited
    [2014] eKLR
  • Milkah Khakayi Kulati v Sandstorm (Africa) Limited
    [2014] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under Article 162(2) of the Constitution (as the court seized of the employment dispute; not expressly quoted in the award)

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, "Jonathan Masila Mutia v Leo Investments Limited [2016] KEELRC 1518 (KLR)", Case Analysis (2016). Cause No 1622 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1518/eng@2016-03-18

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