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ELRCPartially AllowedCause No. 277 of 2017 (Formerly Cause No. 50 of 2016 – Kisumu)· [2018] KEELRC 2598 (KLR)

Erick Kamau v New Kenya Co-operative Creamaries Limited [2018] KEELRC 2598 (KLR)

Employment and Labour Relations Court of Kenya
26 September 2018
3,948 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The claimant, employed by the respondent as a General Clerk/Machine Operator under successive fixed-term contracts from May 2010, was arrested on 25th July 2013 over the disappearance of 12 cartons of powdered milk and charged with theft by servant in Criminal Case No. 3345 of 2013 at Eldoret. He was suspended the same day, attended an internal disciplinary hearing on 23rd December 2013 at the respondent's Nairobi head office, and was dismissed by letter dated 21st January 2014 backdated to the date of suspension. He was acquitted under section 215 of the Criminal Procedure Code on 30th October 2015. He claimed terminal dues of Kshs.1,809,937.86, general and special damages and a Certificate of Service. The respondent maintained the dismissal followed due process and the CBA. The court framed three issues: fairness of the dismissal, grave harm, and available remedies. It held the procedure was fair, as the claimant was heard, and that an acquittal does not immunise an employee from disciplinary action, the two processes being distinct. However, the employer failed to prove valid and fair reasons for dismissal - the alleged admission bore different names and dates - so the termination was substantively unfair contrary to section 45(2) of the Employment Act. The court awarded three months' compensation, overtime, six months' salaries despite the lapsed contract, unpaid rest days limited to 2013, and gratuity per the CBA. Damages for grave harm, salaries until retirement, leave and time-barred rest-day claims were refused. Costs were awarded to the claimant.

Key legal issues

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01

Whether summary dismissal was procedurally fair

Holding

Procedurally fair - the claimant was invited to and attended a disciplinary hearing, satisfying section 41(2) of the Employment Act.

Reasoning

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.

p. 4
02

Whether the reasons for dismissal were valid and fair (substantive fairness)

Holding

Not valid or fair - the evidence of product loss and the claimant's alleged admission were not substantiated; termination was substantively unfair.

Reasoning

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.

p. 4
03

Effect of acquittal in criminal proceedings on disciplinary dismissal

Holding

Acquittal does not bar or invalidate internal disciplinary findings; the two processes are distinct with different standards of proof.

Reasoning

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.

p. 4
04

Whether damages for grave harm were payable

Holding

No - the claim failed for lack of specific evidence, and the unfairness was redressed through compensation under section 49.

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 1.Judgment entered for the claimant with a declaration that termination of employment was substantively unfair
  2. 2.Compensation awarded at Kshs. 47,514.00 (three months' notice pay)
  3. 3.Overtime pay awarded at Kshs. 15,940.00
  4. 4.Unpaid salaries awarded at Kshs. 95,028.00
  5. 5.Unpaid rest days awarded at Kshs. 9,969.00
  6. 6.Gratuity to be assessed and paid in accordance with the CBA within 30 days
  7. 7.Claimant awarded costs
  8. 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

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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, "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.