Hamisi Juma Shabani v Tea Warehouses Limited & another [2020] KEELRC 581 (KLR)
The bottom line
#A Kenyan court ruled that being cleared of a crime doesn't stop an employer from fairly dismissing you, though the worker won some unpaid dues.
What this practically means
#Executive summary
#Key legal issues
#Whether the Claimant's dismissal was lawful and fair
The dismissal was lawful and fair; the employer had a valid reason under Section 43 of the Employment Act and followed the procedural safeguards of Section 41
The dismissal letter cited Section 44(4)(c) of the Employment Act. Applying the reasonable responses test, the Court found the employer acted reasonably: the Claimant admitted tea was lost from the warehouse where he was Acting Supervisor, and his responses to the show cause letter did not disprove negligence. Procedural fairness was satisfied through a show cause letter, response, and disciplinary hearing. The acquittal in the criminal case did not bar the disciplinary outcome, and a Section 87(a) discharge is not proof of innocence.
Whether the Claimant proved malicious prosecution
The claim failed; reasonable and probable cause existed and malice was not proved
Relying on Nelles v Ontario as approved in Ayugi, the four elements of malicious prosecution require initiation by the defendant, termination in the plaintiff's favour, absence of reasonable and probable cause, and malice. The burden of proving dishonesty and unreasonableness lay on the Claimant. The Court found that tea was genuinely lost from the warehouse in his charge and that the particulars of malice were merely an attempt to show innocence. Acquittal does not itself attach malice.
Which remedies the Claimant was entitled to
Leave pay for 27 days and salary for 7 days in October 2016 awarded; all other heads dismissed
The 1st Respondent adduced no documentary evidence proving satisfaction of the leave pay claim, which therefore succeeded. The Claimant was also entitled to salary for seven days worked in October 2016 up to dismissal. Salary arrears, acting/responsibility allowance, gratuity and leave allowance had no evidentiary basis, and compensation for unfair termination failed as the dismissal was found lawful and fair.
Legal principles established
#- An acquittal in a criminal case does not automatically absolve an employee from administrative liability at the workplace
- A discharge under Section 87(a) of the Criminal Procedure Code is not proof of innocence and does not bar subsequent proceedings on the same facts
- The Court applies the reasonable responses test and will not substitute its own decision for that of the employer
- Acquittal does not of itself establish malice on the part of the prosecutor
Court orders
#- 1.Judgment entered in favour of the Claimant against the 1st Respondent for leave pay for 27 days of Kshs. 25,371 and salary for 7 days in October 2016 of Kshs. 6,578, totalling Kshs. 31,949
- 2.The decretal amount to attract interest at court rates from the date of judgment until payment in full
- 3.Each party to bear their own costs
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (First Instance Employment Cause)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Hamisi Juma Shabani v Tea Warehouses Limited & another [2020] KEELRC 581 (KLR)", Case Analysis (2020). ELRC Cause (Mombasa), Statement of Claim filed 14th September 2017 (Mombasa Chief Magistrate's Court Criminal Case No 2033 of 2016 referred to within claim). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/581/eng@2020-07-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.