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ELRCPartially AllowedCause No. 270 of 2017· [2018] KEELRC 2590 (KLR)

Isaac Nduro Murithi v Mogas Kenya Limited [2018] KEELRC 2590 (KLR)

Employment and Labour Relations Court of Kenya at Eldoret
26 September 2018
1,278 words in judgment
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The bottom line

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A Kenyan employer must hold a fair internal hearing before firing a worker, even if that worker faces criminal charges in court.

What this practically means

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Executive summary

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The claimant, employed by the respondent from 11 July 2008 as a Pump Attendant and later Team Leader in Eldoret, was arrested and charged in Criminal Case No. 4713 of 2015 (Eldoret Magistrates' Court) after a fellow employee under his supervision disappeared with the respondent's cash on 15 June 2015. He was acquitted on 9 June 2017, but upon reporting to work he was informed he had been dismissed, with no terminal dues paid. The respondent, though served on 24 October 2017 as confirmed by an Affidavit of Service, filed no appearance or defence, and the court proceeded under Rule 15(3) of the ELRC (Procedure) Rules, 2016, hearing the claimant's unchallenged evidence. The court held that even where an employee faces criminal proceedings, the employer must undertake internal disciplinary measures with a valid reason (section 43) and notice and hearing (section 41) under the Employment Act, 2007, relying on authorities distinguishing criminal trials from disciplinary proceedings on the standard of proof. Having followed no due process, the respondent's termination was unfair under section 45. The court declared the termination unfair, awarded the maximum 12 months' gross salary compensation of Kshs. 211,680, notice pay of Kshs. 17,640 and an unconditional certificate of service under section 51, with costs to the claimant. Claims for salaries from the date of arrest to acquittal and for service pay were refused, the former because the claimant admitted never returning to work and the unfairness was already redressed, and the latter because statutory dues went to NSSF and NHIF.

Key legal issues

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01

Whether an acquittal in criminal proceedings and absence of internal disciplinary process render termination unfair

Holding

The termination was unfair because the employer followed neither due process nor the Employment Act; an acquittal alone does not decide the matter, but the employer must still conduct internal disciplinary measures with notice and hearing

Reasoning

The court relied on authority distinguishing criminal trials from internal disciplinary proceedings: the former requires proof beyond reasonable doubt, the latter a balance of probability. Even where criminal proceedings exist, the employer must address sections 41 and 43 of the Employment Act, 2007. The respondent filed no defence and undertook no disciplinary process, so the termination was unfair under section 45.

p. 2
02

Whether the claimant was entitled to salary for the period between his arrest and acquittal

Holding

The claim was refused because the claimant admitted he never returned to work after his arrest, and the unfair termination had already been redressed through compensation

Reasoning

Although the claimant pleaded he was advised to await the criminal case outcome, he contradicted this under questioning, confirming he never went back to work. As he offered no labour after 15 August 2015, and compensation for the unfair termination had been awarded, no further salaries were payable for that period.

p. 2

Legal principles established

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  • Even where there are criminal proceedings against an employee, the employer must undertake internal disciplinary measures, with notice and hearing, before terminating employment
  • Termination requires a valid and genuine reason under section 43 and notice and hearing under section 41 of the Employment Act, 2007; failure renders the termination unfair under section 45

Court orders

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  1. 1.A declaration that the respondent unfairly terminated the claimant's employment
  2. 2.Compensation awarded at Kshs. 211,680.00
  3. 3.Notice pay of Kshs. 17,640.00
  4. 4.Certificate of Service be issued in accordance with section 51 of the Employment Act, 2007
  5. 5.Costs of the suit to the claimant
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment and Labour Relations Court Act and the Employment Act, 2007

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, "Isaac Nduro Murithi v Mogas Kenya Limited [2018] KEELRC 2590 (KLR)", Case Analysis (2018). Cause No. 270 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/2590/eng@2018-09-26

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