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ELRCDismissedCause No 383 of 2011· [2016] KEELRC 1706 (KLR)

Nahashon Muriithi Wambugu v Teachers Service Commission [2016] KEELRC 1706 (KLR)

Employment and Labour Relations Court of Kenya
12 February 2016
LNLinnet Ndolo
2,119 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 a crime does not automatically save your job when your employer's disciplinary process found misconduct.

What this practically means

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Executive summary

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The Claimant, a Senior Clerical Officer with the Teachers Service Commission, was dismissed on 24 April 2006 after being accused of presenting false payslips and a fraudulent Purchase Check Off Scheme Agreement to a hire purchase firm. He had been interdicted without pay in October 2005 but declined to attend the disciplinary hearings, asking instead that the pending criminal case be determined first. He was acquitted in April 2008 under Section 210 of the Criminal Procedure Code and sought reinstatement, which the Respondent declined. He sued seeking declarations that the interdiction and termination were unlawful, re-engagement or alternatively gratuity, twelve months' salary as compensation, and allowances for the interdiction period. The Respondent maintained that the Claimant was afforded ample opportunity to defend himself, declined to attend, and that his criminal acquittal did not oust the Commission's disciplinary mandate. The Court framed two issues: whether the termination was justifiable and fair, and whether the remedies sought were available. Applying the repealed Employment Act (Cap 226) and the Respondent's Code of Regulations, and citing its own precedents, the Court held there is no nexus between criminal proceedings and internal discipline, that the acquittal did not automatically exonerate the Claimant internally, and that an internal tribunal is not held to criminal standards of proof. The Claimant's unexplained connection to the forged documents gave the Respondent a valid reason, and Regulation 59 permitted interdiction without pay for fraud charges. The claim was dismissed with each party bearing their own costs.

Key legal issues

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01

Whether an employee may decline to attend internal disciplinary proceedings on the ground that a criminal trial on the same facts is pending

Holding

No; absent an express legal or disciplinary rule linking the two, the employer may proceed with the disciplinary process, and the employee's failure to attend forfeits the claim of not being heard.

Reasoning

The Court found no provision in the Respondent's Code of Regulations for Secretariat Staff connecting a criminal trial and internal disciplinary proceedings. Citing its own precedents, it held there is no nexus between the criminal trial and internal discipline, that acquittal does not confer automatic internal clearance, and that an internal tribunal is not held to court-of-law standards. The Claimant therefore had no justification for skipping the hearings.

p. 5
02

Whether the dismissal was for a valid reason and in accordance with fair procedure

Holding

Yes; the Claimant's unexplained involvement in the forged payslip and Purchase Check Off Scheme Agreement constituted gross misconduct, and due procedure under Cap 226 and the Code of Regulations was observed.

Reasoning

The Claimant denied knowledge of the forged payslip but could not explain the origin of the Purchase Check Off Scheme Agreement bearing his name and an apparently matching signature, and the salary figure tallied with the forged payslip. The Court rejected his denial, found reasonable grounds to believe he was involved, and held the Respondent observed due procedure. Interdiction without pay was lawful under Regulation 59 of the Code of Regulations.

p. 5

Legal principles established

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  • There is no obvious nexus between a criminal trial and internal disciplinary proceedings at the workplace, even when the charges and particulars are identical; acquittal does not automatically clear the employee internally.
  • An internal disciplinary tribunal is not held to the same standards as a court of law.
  • In reviewing disciplinary action, the Court does not apply the 'beyond reasonable doubt' standard but asks whether a reasonable employer would have taken the action.

Court orders

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  1. 1.The Claimant's claim is dismissed in its entirety
  2. 2.Each party will bear their own costs

Authorities

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Legislation

  • Penal CodeSection 347(a)
  • Criminal Procedure CodeSection 210
  • Employment Act (repealed) (Cap 226)Section 17
  • Employment Act, 2007noted as not yet enacted at material time
  • Teachers Service Commission Actadministrative functions
  • Code of Regulations for Secretariat Staff (Revised 2006)Regulation 59

Cases cited (3)

  • Wilberforce Ojiambo Oundo v Regent Management Limited
    [2013] eKLR
  • Milkah Khakayi Kulati v Sandstorm (Africa) Limited
    [2014] eKLR
  • Constantine Simati v Teachers Service Commission and Another
    [2011] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment and Labour Relations Court Act and the repealed Employment Act (Cap 226)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (4)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Nahashon Muriithi Wambugu v Teachers Service Commission [2016] KEELRC 1706 (KLR)", Case Analysis (2016). Cause No 383 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1706/eng@2016-02-12

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