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ELRCDismissed· [2021] KEELRC 978 (KLR)

Gregory Kwabi Wekulo & 2 others v Musoni Kenya Limited [2021] KEELRC 978 (KLR)

Employment and Labour Relations Court
22 September 2021
NMNzioki Wa Makau
2,481 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court confirmed that being acquitted of a crime does not stop your employer from fairly dismissing you if they follow the proper process.

What this practically means

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Executive summary

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Three employees of Musoni Kenya Limited, employed in 2013 and 2015 as Wealth Creation Officers and a Customer Service Assistant, sued for wrongful termination following their summary dismissal on 24th February 2016. They alleged that after being issued with notices for a disciplinary hearing on 22nd February 2016 over allegations of fraud and stealing, they were arrested at the hearing, detained, and charged in Narok Criminal Case No. 329 of 2016 with stealing by servant, without being heard. They sought 12 months' salary, one-month notice pay, untaken leave, exemplary damages, certificates of service, costs and interest. The Respondent maintained that the Claimants attended the disciplinary hearing, admitted violating its credit and lending policy by colluding with a client to forge loan application forms, causing losses, and that summary dismissal under Section 44 of the Employment Act was justified. The Respondent relied on the Chief Human Resources Officer's evidence of admissions, internal audit findings and paid terminal dues. The court held that although the Claimants were acquitted under Section 215 of the Criminal Procedure Code, a criminal acquittal does not absolve an employee from the employer's disciplinary prerogative. The Respondent had conducted hearings in compliance with Section 41 and discharged its burden under Section 43 to show just cause and a fair process. The suit was dismissed with each party bearing their own costs, the court noting the insensitive inception of the dismissal process as regards the expectant and lactating Claimants.

Key legal issues

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01

Whether the summary dismissal was for a valid and fair reason

Holding

Yes - the Respondent proved reasons grounded in the Claimants' admissions of violating the credit and lending policy

Reasoning

The court found there was evidence, being the Claimants' admissions, that they engaged in dealings breaching their employment contracts. The Respondent conducted hearings and afforded the Claimants an opportunity to defend themselves as required under Section 41 of the Employment Act. The Respondent therefore discharged its burden under Section 43 to show dismissal for just cause and through a fair process.

p. 3
02

Effect of the Claimants' acquittal in the criminal case on the dismissal

Holding

Acquittal does not bar or invalidate the employer's disciplinary decision

Reasoning

The Claimants were acquitted by the Chief Magistrate's court at Narok under Section 215 of the Criminal Procedure Code, but the court held that an employer may still discipline an employee for a perceived wrong notwithstanding a criminal acquittal. The employer's prerogative to discipline is not subject to parallel criminal proceedings, as the Respondent's cited authority also held.

p. 3

Legal principles established

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  • An acquittal in a criminal trial does not of itself absolve an employee from the employer's right to discipline for a perceived wrong.
  • Where the employer conducts a fair hearing and proves reasons for termination under Sections 41 and 43 of the Employment Act, the dismissal is fair even if the employee was acquitted in criminal proceedings.

Court orders

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  1. 1.Suit dismissed
  2. 2.Each party to bear their own costs

Authorities

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Legislation

  • Constitution of Kenya 2010Article 41(1), (2)(a), (b) and (c)
  • Employment ActSection 41
  • Employment ActSection 43
  • Employment ActSection 44(c) and (g)
  • Employment ActSection 49(1)(c), 49(c), 49(4)(b) and (k)
  • Employment ActSection 50
  • Criminal Procedure CodeSection 215

Cases cited (4)

  • John Ngatia Ndung'u v Kenya Commercial Bank Limited
    [2014] eKLR
  • Abdi Mohamed Daib v Kenya Port Authority
    [2016] eKLR
  • Party of Independent Candidate of Kenya v Mutula Kilonzo & 2 Others
    [2015] eKLR
  • Republic v Rosemary Wairimu Munene Ex-Parte Applicant Ihururu Dairy Farmers Co-operative Society Ltd Judicial Review Application No. 6 of 2014
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over wrongful termination of employment claims under the Employment Act and Article 41 of the Constitution of Kenya 2010

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, "Gregory Kwabi Wekulo & 2 others v Musoni Kenya Limited [2021] KEELRC 978 (KLR)", Case Analysis (2021). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/978/eng@2021-09-22

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