Hosea Kipkorir Serem v Moi Teaching and Referral Hospital [2017] KEELRC 1673 (KLR)
The bottom line
#A Kenyan court ruled that being acquitted of a crime does not protect an employee from being dismissed for misconduct at work.
What this practically means
#Executive summary
#Key legal issues
#Whether termination was wrongful, unfair and unlawful
Termination was lawful; the claimant was dismissed for gross misconduct after evading service of disciplinary notices, and his acquittal in the criminal case did not clear him internally
The court found the claimant was implicated in theft and fraudulent encashment of cheques belonging to the employer. He was invited to a disciplinary committee but evaded service, while his co-accused attended. Acquittal in the criminal trial conferred no automatic clearance because the standards of proof differ. The employer acted in good faith and the claimant could not benefit from his own wrongdoing.
Entitlement to pay during suspension
No entitlement to pay during suspension where the disciplinary process found the employee culpable
Relying on Grace Gacheri Murithi v Kenya Literature Bureau and Cabiakman, the court held that payment during suspension depends on the outcome of the disciplinary process. A culpable employee has no legitimate expectation of pay for the suspension period, so the claim for salary from 8th May 2012 failed.
Protection under Article 236 of the Constitution
Article 236 does not protect an employee terminated for gross misconduct
Article 236 protects public officers performing their functions in accordance with the law from victimisation and dismissal without due process. The claimant's services were terminated for gross misconduct, and he did not demonstrate harassment while innocent and diligent in his work, so the constitutional guarantee did not avail him.
Legal principles established
#- There is no nexus between a criminal trial and internal disciplinary proceedings at the workplace, even where the charges are identical, because the standards of proof differ
- Whether an employee will be paid during suspension depends on the outcome of the disciplinary proceedings
- An Acting Director of a public institution can lawfully exercise disciplinary functions of a Director unless expressly barred
Court orders
#- 1.The claim is dismissed with costs to the respondent.
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the employment relationship between a public hospital and its employee; claimant relied on Articles 27, 28, 41(1), 47, 48, 50 and 236 of the Constitution of Kenya, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Achuchi v Kenya Power & Lighting Co Ltd (Cause 1982 of 2017) [2024] KEELRC 617 (KLR)[2024] KEELRC 617 (KLR)13 Mar 2024
- Nyagena v Mwilu & another (Petition E051 of 2021) [2021] KEELRC 914 (KLR)[2021] KEELRC 914 (KLR)20 Sept 2021
Cite this brief
#Cite this brief
Caselaw, "Hosea Kipkorir Serem v Moi Teaching and Referral Hospital [2017] KEELRC 1673 (KLR)", Case Analysis (2017). Cause No. 9 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2017/1673/eng@2017-02-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.