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ELRCDismissedNot stated in the judgment· [2022] KEELRC 392 (KLR)

Daniel Muthoka Muindi v Intex Constructions Co.Ltd [2022] KEELRC 392 (KLR)

Employment and Labour Relations Court
23 March 2022
DMD.K. Njagi Marete
849 words in judgment
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The bottom line

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A Kenyan court confirmed that employees dismissed for fraud at work have no claim, and appeals must overcome strong evidence from the trial court.

What this practically means

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Executive summary

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This is an appeal to the Employment and Labour Relations Court at Nyeri, brought under section 17 of the Employment and Labour Relations Court Act, 2011 against the decision of a Principal Magistrate's Court in an employment claim. The appellant, a former employee summarily dismissed following allegations of fraud at the NSSF leading to his arrest and criminal prosecution, raised eight grounds of appeal. He faulted the learned magistrate for failing to appreciate his evidence, for discarding the respondent's oral testimony, for not finding his termination unlawful and in breach of contract, for failing to award damages and costs, and for not ordering compensation of Kshs.15,000/- which he had deposited at the police station and later surrendered to the respondent. He sought to have the lower court judgment and decree set aside and his claim allowed with costs. The respondent submitted that the summary dismissal was lawful under section 44(4) of the Employment Act, 2007, the appellant having committed, or on reasonable grounds being suspected of committing, a criminal offence to the detriment of his employer. She relied on Oserian Development Company Limited v Jackson Oteyo Sila (2018) eKLR, which applies Peters v Sunday Post Ltd, affirming the first appellate court's duty to reassess the entire evidence. The Court found the dismissal lawful, the magistrate's judgment a clear analysis of the cause, and dismissed the appeal with costs to the respondent.

Key legal issues

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01

Whether the summary dismissal of the appellant was lawful

Holding

The dismissal was lawful; the appellant was involved in fraud and was criminally charged, amounting to gross misconduct under Section 44(4) of the Employment Act, 2007 justifying summary dismissal

Reasoning

The respondent demonstrated through evidence tendered at the magistrate's court that the appellant was involved in fraud at the NSSF and was subsequently charged. Under Section 44(4)(g) of the Employment Act, committing or being reasonably suspected of committing a criminal offence against or to the detriment of the employer constitutes gross misconduct justifying summary dismissal. The appellant therefore cannot sustain an appeal on this background.

p. 2
02

The scope of the Court's powers on a first appeal from the magistrate's court

Holding

Although appeals lie ordinarily on points of law, the Court as a first appellate court must reassess the entire evidence and make independent findings, but will not disturb findings supported by evidence and the law

Reasoning

Relying on Oserian Development Company Limited v Jackson Oteyo Sila (2018) eKLR and Peters v Sunday Post Ltd (1958) EA 424, the Court confirmed its duty to walk through and scrutinize the evidence afresh. Having done so, the Court found the magistrate's judgment contained an elaborate analysis and determination of the cause, and thus declined to interfere.

p. 2

Legal principles established

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  • The ELRC sitting as a first appeal court over a magistrate's court decision must reassess the entire evidence tendered at trial and make its own independent findings, and will not interfere with a finding supported by evidence and the law
  • An employee who commits, or on reasonable and sufficient grounds is suspected of committing, a criminal offence against or to the substantial detriment of his employer commits gross misconduct justifying summary dismissal under Section 44(4) of the Employment Act, 2007

Court orders

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  1. 1.The appeal is dismissed with costs to the Respondent

Authorities

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Legislation

  • Employment and Labour Relations Court ActSection 17
  • Employment Act, 2007Section 44(4)

Cases cited (2)

  • Oserian Development Company Limited v Jackson Oteyo Sila
    (2018) eKLR
  • Peters versus Sunday Post Ltd
    (1958) EA 424
On appeal from
Principal Magistrate's Court
Not stated
Jurisdiction invoked
Section 17 of the Employment and Labour Relations Court Act, 2011 (appeals from the magistrate's court)

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, "Daniel Muthoka Muindi v Intex Constructions Co.Ltd [2022] KEELRC 392 (KLR)", Case Analysis (2022). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/392/eng@2022-03-23

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