Edward Lisamula Milimu v Farouk Bisbas & 2 others [2018] KEELRC 277 (KLR)
The bottom line
#Kenya's Employment Court upheld World Vision's dismissal of an employee over criminal charges, ruling an employer needs only reasonable suspicion, not a conviction.
What this practically means
#Executive summary
#Key legal issues
#Whether there were valid reasons for summary dismissal under Section 17(g) of Employment Act Cap 226 (repealed)
Yes - the Claimant was charged with a criminal offence of a sexual nature against members of the refugee community under the 3rd Respondent's supervision, and admitted a prohibited relationship with a refugee, constituting gross misconduct under the HR Manual Articles 9.4.1.2 and 9.4.1.20.
The dismissal letter cited unnatural offences and gross indecency under Section 17(g). The Claimant was arrested and charged, and though the conviction was set aside for procedural reasons (unqualified prosecutor), the charge itself constituted reasonable and sufficient grounds for suspicion. His admitted relationship with a Congolese refugee breached the employment terms and brought conflict of interest and disrepute to the organisation and UNHCR.
Whether the Claimant was accorded a fair hearing before dismissal
Yes - although a disciplinary hearing was not mandatory under the repealed Act, the Claimant engaged in multiple sittings with the Country Director and Camp Manager and signed the minutes.
The court noted that under the repealed Employment Act, a formal disciplinary hearing was not mandatory where due notice was given. Here the Respondent held several meetings between April and May 2002 addressing the complaints, and the Claimant participated and signed the records of those meetings, satisfying due process.
Admissibility of criminal proceedings in the civil claim
Criminal case proceedings are admissible under Sections 35 and 36 of the Evidence Act notwithstanding that the conviction was set aside.
The court held that evidence given in criminal proceedings is admissible in civil proceedings, relying on Section 35 of the Evidence Act and a prior decision where criminal proceedings and judgment were admitted in a civil case. Although the High Court declared the trial a nullity for being conducted by a Police Prosecutor, the record remained a correct record of what transpired and thus admissible.
Legal principles established
#- Evidence given in criminal proceedings is admissible in civil proceedings under Sections 35 and 36 of the Evidence Act, even where the conviction has been set aside, provided the record is a correct record of what transpired.
- Under the repealed Employment Act, an employer could dismiss on reasonable suspicion of a criminal offence against the employer's detriment under Section 17(g), and the civil standard of proof, not the criminal standard, applies.
- Under the repealed Employment Act a disciplinary hearing was not mandatory so long as due notice was given.
Court orders
#- 1.The entire claim is dismissed with costs to the Respondents.
- Jurisdiction invoked
- Transferred by consent from the High Court of Kenya at Nairobi (HCCC No. 433 of 2003) to the Employment and Labour Relations Court on 19.1.2014
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Edward Lisamula Milimu v Farouk Bisbas & 2 others [2018] KEELRC 277 (KLR)", Case Analysis (2018). Cause No. 62 of 2014 (formerly HCCC No. 433 of 2003). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/277/eng@2018-12-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.