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ELRCPartially AllowedCause No. 77 of 2015· [2022] KEELRC 469 (KLR)

Macmillian Njage Nciema v George Mwangi Gichimo [2022] KEELRC 469 (KLR)

Employment and Labour Relations Court of Kenya
17 March 2022
HWHellen Wasilwa
1,960 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employer who fired a worker facing theft charges without a hearing was ordered to pay compensation because criminal charges never excuse skipping fair procedure.

What this practically means

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Executive summary

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The Claimant, employed as an accountant from 2010, was arrested by CID officers on 18 June 2012 on allegations of loss of funds at the Respondent's hotel and charged with stealing by servant in Nakuru CMCC Criminal Case No. 2108 of 2012. He was never taken through any internal disciplinary process and never received a dismissal letter. The Respondent denied the employment relationship, contending the Claimant was a casual engaged through Rosget Management Consultant, and argued he absconded duty to attend his criminal trial rather than being dismissed. The Claimant was acquitted on 19 February 2019 and sued for notice pay, underpayment, overtime, rest days, public holidays, leave, gratuity, salary arrears, compensation under section 49(1)(c) and a certificate of service. The court framed three issues: employment relationship, unfairness of termination, and remedies. RW-1's admission that he employed and paid the Claimant for the Respondent negated the casual-worker defence. Relying on Clement Karuri v KPA, the court held that criminal proceedings do not bar a disciplinary hearing on similar facts, and found the Respondent failed to prove valid reasons or fair procedure, rendering the termination unfair under section 45(2). The court awarded a total of Kshs. 127,600 (notice pay, six months' compensation, service pay, one year's leave and salary arrears for April, May and 18 days of June 2012), less statutory deductions, with costs and interest; claims for overtime, underpayment and public/rest days failed for lack of evidence.

Key legal issues

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01

Whether the Claimant was an employee of the Respondent

Holding

Yes; the Respondent's own witness admitted employing the Claimant, negating the casual-employment denial.

Reasoning

RW-1, the Respondent's agent, testified that he sourced and hired casual workers for the Respondent and that he was the one who employed and paid the Claimant. This admission directly contradicted the Respondent's pleaded position that the Claimant was never its employee, so the defence failed on the employment relationship.

p. 3
02

Whether the termination was unfair

Holding

Yes; termination was substantively and procedurally unfair under section 45(2) of the Employment Act.

Reasoning

Although the Claimant faced criminal charges of stealing by servant, the Respondent never subjected him to any internal disciplinary process and never issued a dismissal letter. Criminal proceedings do not bar a disciplinary hearing on the same facts. Without a hearing or a letter, the reason for dismissal could only be guessed at, and the employer failed to prove a valid reason and fair procedure.

p. 3
03

Whether the Claimant is entitled to the remedies sought

Holding

Partly; notice pay, six months' compensation, service pay, leave and salary arrears awarded; overtime, underpayment and public/rest day claims dismissed for lack of proof.

Reasoning

Having found unfair termination, the court applied section 49 remedies: one month's notice pay, six months' salary as compensation, service pay for two years, one year's leave pay and the unpaid salary for April, May and eighteen days of June 2012. Claims for overtime, underpayment and public holidays/rest days failed as they were not supported by evidence.

p. 4

Legal principles established

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  • Institution of criminal proceedings against an employee is not a bar to civil proceedings or a disciplinary hearing on similar facts.
  • An employer must prove validity of reason and fair procedure under section 45(2) of the Employment Act; dismissal without a disciplinary hearing and without a dismissal letter is unfair.

Court orders

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  1. 1.One month's salary in lieu of notice of Kshs. 11,000
  2. 2.Six months' salary as compensation for unfair and unlawful termination of Kshs. 66,000
  3. 3.Service pay for 2 years of Kshs. 11,000
  4. 4.Leave for 1 year of Kshs. 11,000
  5. 5.Salary for April, May and 18 days of June 2012 of Kshs. 28,600
  6. 6.Total award of Kshs. 127,600 less statutory deductions
  7. 7.Respondent to pay costs of the suit plus interest at court rates from the date of judgment

Authorities

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Legislation

  • Employment Actsection 49(1)(c)
  • Employment Actsection 51
  • Employment Actsection 44(4)
  • Employment Actsection 45(2)
  • Evidence Actsections 107 and 108

Cases cited (4)

  • National Bank of Kenya V Samuel Nguru Mutonya
    [2019] eKLR
  • Florence Wambui Gitau V Eclipse International
    [2019] eKLR
  • Elizabeth Wangare Gathoni and 2 others V Andrew Nightngale and Kembu E.A LTD
    [2014] eKLR
  • Clement Karuri Vs KPA
    (2018) eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (first-instance 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, "Macmillian Njage Nciema v George Mwangi Gichimo [2022] KEELRC 469 (KLR)", Case Analysis (2022). Cause No. 77 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/469/eng@2022-03-17

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