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ELRCDismissedCivil Case No 508 of 2008 (formerly High Court at Nairobi)· [2018] KEELRC 293 (KLR)

Japheth Shem Muthiani Wambua v National Hospital Insurance Fund [2018] KEELRC 293 (KLR)

Employment and Labour Relations Court
14 December 2018
LNLINNET NDOLOMOMAUREEN ONYANGO
1,523 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 criminal charges does not automatically save your job if your employer's disciplinary process was fair.

What this practically means

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Executive summary

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The Claimant, formerly employed by the National Hospital Insurance Fund as a Clerical Officer, sued for accumulated salaries and salary arrears from November 2003 until retirement, or reinstatement with full benefits, a declaration that the sale of L.R. No NAIROBI/BLOCK 134/1201 (purchased under the Respondent's Staff Mortgage Scheme) was irregular, unprocedural and unlawful, general damages, costs and interest. He was arrested in November 2003 and charged with theft by servant, suspended without pay from 7th November 2003, and his employment was terminated effective 4th November 2003 (later stated as 20th March 2007) by letter dated 15th May 2007 on grounds of gross misconduct, despite his acquittal on 9th October 2006. The Respondent denied wrongdoing, asserting it acted within its Terms and Conditions of Service and that any realization of security was by Savings and Loans Kenya Limited, from which it sought indemnity. The Court framed two issues: whether the termination was lawful and fair, and whether the Claimant was entitled to the remedies sought. Because the cause of action predated the Employment Act, 2007, the Court applied the Respondent's April 2002 Terms and Conditions of Service. It found no fault with the suspension under Clause 14.22.2 or the termination procedure, and held that acquittal did not entitle the Claimant to automatic reinstatement, applying the balance of probability standard following Clement Karuri v Kenya Ports Authority. The claim was dismissed with no order for costs.

Key legal issues

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01

Whether the suspension and termination of the Claimant's employment were lawful and fair

Holding

The Respondent acted lawfully, relying on Clause 14.22.2 of its Terms and Conditions of Service in suspending the Claimant without pay upon his being charged with a criminal offence, and the procedure leading to termination was unobjectionable

Reasoning

The cause of action predates the Employment Act, 2007, so the Respondent's April 2002 Terms and Conditions of Service applied. Clause 14.22.2 expressly permitted suspension without salary upon an employee being charged with a criminal offence. The termination letter followed the Staff Advisory Committee's advice, uplifted the suspension and informed the Claimant of his right of appeal. The Court found no violation of the employment contract or the Terms and Conditions of Service.

p. 3
02

Whether the Claimant's acquittal in the criminal case entitled him to reinstatement or the remedies sought

Holding

No; acquittal does not confer automatic reinstatement, and the disciplinary process conducted on a balance of probability was separate from and lawful despite the acquittal

Reasoning

The Court of Appeal's decision in Clement Karuri v Kenya Ports Authority distinguishes internal disciplinary proceedings, which are contractual and decided on a balance of probability, from criminal proceedings requiring proof beyond reasonable doubt. The Claimant was both acquitted after a criminal trial and separately subjected to a disciplinary process ending in termination. Applying the balance of probability standard, the Court found no wrongdoing by the Respondent and the claim unproved.

p. 3

Legal principles established

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  • Acquittal in criminal proceedings does not entitle an employee to automatic reinstatement, as internal disciplinary proceedings and criminal proceedings apply different standards of proof

Court orders

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  1. 1.The Claimant's claim is dismissed with no order for costs

Authorities

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Legislation

  • Penal CodeSection 281 (theft by servant)
  • Employment Act2007 (referred to as enacted after the cause of action)

Cases cited (1)

  • Clement Karuri v Kenya Ports Authority
    [2018] eKLR
Jurisdiction invoked
Transferred from the High Court at Nairobi by consent of the parties recorded before Mbogholi J on 10th December 2014; Employment and Labour Relations Court jurisdiction

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, "Japheth Shem Muthiani Wambua v National Hospital Insurance Fund [2018] KEELRC 293 (KLR)", Case Analysis (2018). Civil Case No 508 of 2008 (formerly High Court at Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/293/eng@2018-12-14

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