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ELRCDismissedCause No. 1197 of 2013· [2018] KEELRC 286 (KLR)

Peterson Njue Njeru v Attorney General [2018] KEELRC 286 (KLR)

Employment and Labour Relations Court
20 December 2018
HWHellen S. Wasilwa
2,154 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court ruled a teacher official's sacking for misappropriating Kshs.683,651 was fair, dismissed his entire claim, and ordered him to repay the money.

What this practically means

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Executive summary

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The Claimant, formerly a District Human Resource Officer with the Teachers Service Commission at Nandi, claimed he was wrongfully dismissed after being maliciously reported to police for stealing Kshs.681,651.15, interdicted without salary from December 2005, acquitted of criminal charges on 7/8/2009, then subjected to a flawed disciplinary process and dismissed on 20th August 2010. He sought withheld salary from 2005 to 2010, one month's salary in lieu of notice, payment for 77 accrued leave days, pension benefits of Kshs.73,457.79, compensation equivalent of 12 months' salary, and a declaration that his dismissal was unfair. The Respondent defended the dismissal, alleging the Claimant encashed cheques meant for teachers' salaries totalling Kshs.820,651.25 and fraudulently converted Kshs.683,651.25, and counterclaimed for that amount. The court framed three issues: valid reasons, due process, and entitlement to remedies. On the evidence, including the Claimant's admissions that cheques marked 'pay Peterson Njeru' bore his signature, his written acknowledgements of receipt of three cheques totalling Kshs.241,982.05, and audit evidence that a bank cashier identified him, the court found the Respondent had valid reasons for dismissal. The disciplinary process was found fair under Section 41 of the Employment Act 2007, the Claimant having cross-examined witnesses. The claim was dismissed in its entirety, judgment was entered for the Respondent on the counterclaim for Kshs.683,651.25, and each party was ordered to bear its own costs.

Key legal issues

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01

Whether the Claimant was dismissed for valid reasons

Holding

Yes - the Respondent proved misappropriation of Kshs.683,651.25 through the Claimant's written acknowledgements of debt, admissions on cross-examination, and audit evidence

Reasoning

The dismissal letter alleged breach of Regulations 55/4 and 55/3 of the TSC Code of Regulations for encashing cheques meant for teachers and failing to pay them. The Claimant admitted signing the reverse of cheques marked 'pay Peterson Njeru', and had written acknowledgements of receipt of three cheques totalling Kshs.241,982.05 and commitment to pay. An internal auditor testified that a bank cashier identified the Claimant as encashing cheques. These acknowledgements and evidence established valid reasons for dismissal.

p. 4
02

Whether the Claimant was subjected to due process

Holding

Yes - the disciplinary process complied with Section 41 of the Employment Act 2007

Reasoning

The Claimant admitted he was taken through the disciplinary process. Minutes were annexed by the Respondent, witnesses were called and the Claimant was allowed to cross-examine them. Although the Claimant alleged the process was flawed and discriminatory, the court found it was conducted fairly as envisaged under Section 41 of the Employment Act 2007, and accordingly found the dismissal fair and justified.

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03

Whether the Respondent's counterclaim succeeds

Holding

Yes - the Respondent proved misappropriation of Kshs.683,651.25

Reasoning

The Respondent counterclaimed for Kshs.683,651.25 being monies fraudulently put to the Claimant's own use from teachers' salary cheques. The court found the Respondent proved the Claimant misappropriated this amount by failing to pay the teachers as expected, and entered judgment for the Respondent on the counterclaim as prayed.

p. 4

Legal principles established

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  • A disciplinary process conducted in compliance with Section 41 of the Employment Act 2007, allowing the employee to cross-examine witnesses and be heard, is fair.
  • An employer who proves misappropriation of funds by an employee has valid reasons to dismiss the employee.

Court orders

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  1. 1.Dismissal of the Claimant's case
  2. 2.Judgment for the Respondent on the counterclaim for Kshs.683,651.25
  3. 3.Each party to bear its own costs

Authorities

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Legislation

  • Penal CodeSection 280
  • Penal CodeSection 116
  • TSC ActCap 212
  • Public Officer Ethics Act
  • TSC Code of Regulations for Secretariat StaffRegulation 55/4; Regulation 55/3
  • Employment ActSection 41
  • Police Act
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act 2007 and related labour laws

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, "Peterson Njue Njeru v Attorney General [2018] KEELRC 286 (KLR)", Case Analysis (2018). Cause No. 1197 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/286/eng@2018-12-20

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