Rotich v Ethics and Anti-Corruption Commission (Cause 514 of 2016) [2023] KEELRC 500 (KLR)
The bottom line
#A Kenyan court ruled the EACC fairly fired an investigator for cause but unlawfully skipped due process, awarding him Kshs 1.34 million.
What this practically means
#Executive summary
#Key legal issues
#Whether termination was for valid and fair reasons
Termination was based on valid and fair reasons and was justified under sections 43, 45 and 47para 5 of the Employment Act
The claimant was found at a colleague's workstation, accessing documents he was not authorised to access, using administrator credentials conferring superior rights, while that colleague was away investigating the anglo-leasing scandal. This was at a time when the respondent was on high alert over information leakage to the media. The respondent genuinely believed the claimant was a probable source of leakage. The criminal acquittal was on a legal technicality and did not bind the employer.
Whether fair procedure was followed
Procedure was flawed and termination was unfair on account of the procedural defects
The respondent's own witnesses, including the Human Resource Assistant Director and the Director of Ethics and Leadership, confirmed that no letter to show cause was issued and no disciplinary hearing was held, contrary to the respondent's own disciplinary policy requiring a show-cause letter. The claimant was never accorded an opportunity to defend himself before summary dismissal, breaching sections 41 and 45 of the Employment Act.
Entitlement to remedies
Notice and gratuity declined; 23 days' leave and 6 months' salary compensation awarded
Summary dismissal for gross misconduct disentitles the claimant to notice. Gratuity had been fully paid for the contractual period and ceased upon conversion to permanent and pensionable terms. Leave was limited to the conceded outstanding 23 days. Compensation was reduced to 6 months' salary because, although the procedure was flawed, the termination rested on valid reasons and the claimant's own conduct precipitated it.
Legal principles established
#- The reason for termination is what the employer genuinely believed to exist at the time of termination, under section 43 of the Employment Act
- An acquittal in criminal proceedings on a legal technicality does not establish that the employer lacked valid and fair reasons for termination
- Even a substantive criminal acquittal would not bind an employer to retain an employee, as the employee was not being tried for an employment offence
- Failure to issue a show-cause letter and to hold a disciplinary hearing breaches the minimum statutory standards of procedural fairness under sections 41 and 45 of the Employment Act
Court orders
#- 1.Declaration that termination was unfair, on account of flawed procedure
- 2.The respondent shall pay the claimant 23 days of annual leave at Kshs 174,673 and the equivalent of 6 months' salary in compensation for unfair termination at Kshs 1,166,742, totalling Kshs 1,341,415
- 3.No order on the costs
- 4.Interest allowed at the court rate from the date of judgment till payment is made in full
- Jurisdiction invoked
- Sections 41, 43, 44, 45, 47[5], 49 of the Employment Act, and section 12 of the Employment and Labour Relations Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Rotich v Ethics and Anti-Corruption Commission (Cause 514 of 2016) [2023] KEELRC 500 (KLR)", Case Analysis (2023). Cause No 514 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/500/eng@2023-02-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.