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ELRCPartially AllowedCause No 1892 of 2016· [2019] KEELRC 944 (KLR)

Alice Nyanduko Omwancha v Kenya Industrial Estates Limited [2019] KEELRC 944 (KLR)

Employment and Labour Relations Court
31 July 2019
OMOnesmus N. Makau
4,555 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~18 min to read original · ~4 min brief

The bottom line

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A Kenyan court confirmed an employer can fairly dismiss an employee for bribery even after a criminal acquittal, though the employee still received her contractual dues.

What this practically means

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Executive summary

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The claimant, formerly Regional Manager Coast of the respondent, was interdicted in April 2012 over allegations of soliciting and receiving a Kshs.30,000 bribe from a casual employee, Grace Mwaka, to secure her permanent appointment, and was summarily dismissed for gross misconduct on 3.9.2013. She was acquitted of the corresponding criminal charges in March 2015 and thereafter sued for a declaration that her dismissal was unfair and wrongful, reinstatement, compensation of Kshs.23,490,490, general damages, allowances for her suspension period, leave, gratuity and a certificate of service. The respondent maintained that it had a valid reason and followed its HR Policy disciplinary procedure, and that the acquittal did not invalidate the dismissal. The court held that the respondent proved on a balance of probability that the claimant solicited and received the bribe, amounting to gross misconduct under section 44(4)(g) of the Employment Act, and that the criminal acquittal did not bind the civil process given the lower standard of proof. It further found that a fair procedure was followed: the claimant received a show cause letter, responded in writing, and was heard by the Staff Committee without objection. The declaration of unfair dismissal, reinstatement, section 49 compensation and other statutory reliefs were accordingly declined, reinstatement also being barred by the lapse of the three-year limitation period. The court however awarded contractual dues: 30 days' leave (Kshs.63,192.30), medical allowance for the 16-month suspension (Kshs.60,000), withheld half basic salary (Kshs.407,800), plus costs, interest and a certificate of service.

Key legal issues

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01

Whether the summary dismissal was grounded on a valid and fair reason

Holding

Yes - the respondent proved on a balance of probability that the claimant solicited and received a bribe of Kshs.30,000 to secure a permanent appointment, amounting to gross misconduct under section 44(4)(g) of the Employment Act

Reasoning

The claimant admitted receiving Kshs.30,000 from Grace Mwaka on 23.4.2012, after Mwaka's interview but before her appointment letter issued, while a vacancy existed in the position Mwaka held in acting capacity. The court rejected the claimant's loan explanation and held the acquittal in the criminal case did not bind the court given the lower civil standard of proof. The bribe constituted gross misconduct under section 44(4)(g) of the Employment Act and the respondent's HR Policy.

p. 6
02

Whether a fair procedure was followed before the dismissal

Holding

Yes - the claimant was served with a suspension/show cause letter stating the charges, responded in writing, and was heard orally before the Staff Committee without objection

Reasoning

The claimant was served with a suspension letter dated 27.4.2012 citing the charges and given the opportunity to respond in writing; she was then invited to and attended an oral hearing before the Staff Committee of Management on 12.7.2013 and raised no objection. The court found the respondent proved on a balance of probability that a fair procedure under section 41 of the Employment Act was followed, and rejected the claimant's after-the-fact denial following her acquittal.

p. 6
03

Whether the claimant is entitled to the reliefs sought

Holding

Partially - terminal and contractual dues (30 days' leave, medical allowance, withheld half basic salary and certificate of service) awarded; statutory claims for compensation, reinstatement and other allowances dismissed

Reasoning

Having found the dismissal fair and justified, the court declined the declaration of unfairness, reinstatement and section 49 compensation. It however awarded contractual dues: 30 days' leave (respondent admitted leave was due but failed to prove only 23 days), medical allowance for the 16-month suspension period per clause 6.3.3 of the HR Policy Manual and section 62(2) of the Anti-Corruption and Economic Crimes Act, and the withheld half basic salary for which no legal, contractual or evidential basis for denial existed.

p. 8

Legal principles established

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  • Criminal process and internal disciplinary mechanisms run in parallel and the burden of proof in the disciplinary process is lower (balance of probabilities) than in criminal proceedings; an acquittal does not invalidate disciplinary action on the same facts
  • Termination is unfair unless the employer proves both substantive justification and procedural fairness under sections 43, 44, 45 and 41 of the Employment Act

Court orders

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  1. 1.Judgment entered for the claimant against the respondent for 30 days' leave Kshs.63,192.30
  2. 2.Medical allowance Kshs.60,000.00
  3. 3.Withheld half basic salary Kshs.407,800.00 (total Kshs.531,792.30, less statutory deductions)
  4. 4.Costs of the suit to the claimant
  5. 5.Interest at court rates from the date of filing the suit
  6. 6.Certificate of Service to be issued to the claimant

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 41; Chapter Six on Leadership and Integrity (part 75 1(a,b,c))
  • Employment Act, 2007Sections 35(1)(c), 41(1), 43, 44(4)(g), 44(g), 45, 45(2)(a) and (b), 49(c), 51
  • Anti-Corruption and Economic Crimes ActSection 62(2)
  • Public Officers Ethics Act, 2003Section 11(1)
  • Evidence ActSection 107
  • ELRC ActSection 12

Cases cited (3)

  • Mary Chemwono Kiptui –v- Kenya Pipeline Company Limited
    [2014] eKLR
  • Mbagga Wetangula –v- Co-operative Bank of Kenya
    Cause 325 of 2015; [2017] eKLR
  • Samsung Electronics East Africa Ltd -v- K M
    [2017] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the ELRC Act (reinstatement limitation under section 12 thereof invoked); Employment Act, 2007

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Alice Nyanduko Omwancha v Kenya Industrial Estates Limited [2019] KEELRC 944 (KLR)", Case Analysis (2019). Cause No 1892 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/944/eng@2019-07-31

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