Erick Kamau v New Kenya Co-operative Creamaries Limited [2018] KEELRC 2598 (KLR)
The bottom line
#A Kenyan court ruled that following fair disciplinary procedure isn't enough — an employer must also prove valid reasons for dismissal, or the termination is unfair.
What this practically means
#Executive summary
#Key legal issues
#Whether summary dismissal was procedurally fair
Procedurally fair - the claimant was invited to and attended a disciplinary hearing, satisfying section 41(2) of the Employment Act.
The court found the claimant was invited by notice to the internal disciplinary hearing on 23rd December 2013 and attended. This amounted to compliance with section 41(2) of the Employment Act, 2007, which requires an employer to hear and consider the employee's representations in defence of allegations. The dismissal for negligence of duty followed section 44(4) which permits summary dismissal for a criminal offence against the employer's property on reasonable and sufficient grounds of suspicion.
Whether the reasons for dismissal were valid and fair (substantive fairness)
Not valid or fair - the evidence of product loss and the claimant's alleged admission were not substantiated; termination was substantively unfair.
Section 43, 45(2), 45(4) and 47(5) of the Employment Act require the employer to prove valid and fair reasons. The respondent's own witness on the disciplinary panel relied on a statement admitting loading of goods, but the claimant denied making the admission and the filed statement bore different names and dates inconsistent with the allegations. The respondent thus failed to prove genuine, valid and justifiable grounds for dismissal notwithstanding procedural compliance.
Effect of acquittal in criminal proceedings on disciplinary dismissal
Acquittal does not bar or invalidate internal disciplinary findings; the two processes are distinct with different standards of proof.
Relying on Court of Appeal authority (Kibe v AG, JSC v Shollei, AG v Githinji), the court held internal disciplinary proceedings are anchored on the employment contract and require proof on a balance of probability, while criminal proceedings require proof beyond reasonable doubt. The claimant's acquittal under section 215 of the Criminal Procedure Code did not therefore render the employer's decision wrongful, though here the dismissal ultimately failed for lack of substantiated reasons.
Whether damages for grave harm were payable
No - the claim failed for lack of specific evidence, and the unfairness was redressed through compensation under section 49.
The court found that having addressed the lack of substantive justice through compensation, the claim for harm to the person lacked specific evidence. Further, the claimant had already commenced separate proceedings against the Attorney General and the respondent for damages arising from the criminal proceedings, so no material justified a separate damages award in this cause.
Legal principles established
#- An acquittal in a criminal case does not automatically render an employee immune to disciplinary action by an employer; criminal trial and internal disciplinary proceedings are distinct processes with different standards of proof.
- An employer who follows due process but lacks valid and fair reasons for termination effects a substantively unfair termination contrary to section 45(2) of the Employment Act.
Court orders
#- 1.Judgment entered for the claimant with a declaration that termination of employment was substantively unfair
- 2.Compensation awarded at Kshs. 47,514.00 (three months' notice pay)
- 3.Overtime pay awarded at Kshs. 15,940.00
- 4.Unpaid salaries awarded at Kshs. 95,028.00
- 5.Unpaid rest days awarded at Kshs. 9,969.00
- 6.Gratuity to be assessed and paid in accordance with the CBA within 30 days
- 7.Claimant awarded costs
- 8.Certificate of Service claim and general/special damages claims not awarded
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (employment cause)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Erick Kamau v New Kenya Co-operative Creamaries Limited [2018] KEELRC 2598 (KLR)", Case Analysis (2018). Cause No. 277 of 2017 (Formerly Cause No. 50 of 2016 – Kisumu). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/2598/eng@2018-09-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.