Marakalu & another v Kenya Ports Authority (Cause E056 of 2023) [2023] KEELRC 1937 (KLR)
The bottom line
#Kenya Ports Authority workers fired for theft lost their bid to keep salary, medical cover and staff housing, but won access to disciplinary minutes.
What this practically means
#Executive summary
#Key legal issues
#Whether pending criminal charges bar the employer's disciplinary process
No; criminal and disciplinary proceedings are distinct and independent, with different standards of proof, and may run concurrently.
The court relied on David Ngugi Waweru v Attorney General, James Mugera Igati v Public Service Commission of Kenya and Christopher Amasava v Kenya Revenue Authority to hold that disciplinary processes are founded on the employment contract, not criminal law. The claimants' refusal to answer show cause notices on the basis of pending criminal charges had no legal foundation; the disciplinary hearing could not be stayed unless the employer chose to do so.
Whether the summary dismissal was procedurally fair and substantively justified
Yes; the claimants were given hearing and union representation as required by section 41 of the Employment Act, and section 44(4)(f) and (g) justified summary dismissal for gross misconduct involving theft from the employer.
Evidence showed show cause notices were issued, a personal hearing attended with union representatives was held, and the claimants were found culpable of stealing six HRC coils valued at Kshs 3,600,000. The appeals were dismissed by the Board of Directors on May 12, 2023. The pendency of Criminal Case No E422 of 2022 was no bar.
Whether post-employment benefits (half salary, medical cover, housing) could be restored pending appeals
No; all benefits ceased with the employment relationship upon summary dismissal for lawful cause.
The court held that upon termination of employment all benefits accruing to an employee end, even if an appeal is pending. The claimants' appeals had already been concluded and dismissed by the Board. Only the supply of disciplinary minutes was ordered for posterity, and rent was awarded against the 1st claimant under section 17(1)(b) of the Employment Act.
Whether the claimants were entitled to the disciplinary minutes and ruling
Yes; the respondent was directed to supply the minutes and ruling, granted for posterity despite dismissal of the claim.
Although the claim generally failed, the court accepted that the claimants were entitled to the minutes and ruling of the disciplinary committee leading to the February 10, 2023 summary dismissal, echoing the constitutional right of access to information invoked by the claimants.
Legal principles established
#- Internal disciplinary processes and criminal processes are independent and may proceed side by side; neither bars the other.
- Upon summary dismissal for lawful cause, employment benefits such as salary, medical cover and housing cease with the employment relationship.
- An employer may deduct a reasonable amount for loss of property occasioned by an employee's wilful default, including rent for continued occupation of staff housing after dismissal.
Court orders
#- 1.The respondent shall supply the claimants with the minutes of the disciplinary committee and the ruling thereof leading to summary dismissal on the February 10, 2023
- 2.The 1st claimant shall render vacant possession of Block 228 Door 2, Makupa Asian staff quarters and pay rents due from February 10, 2023 until the date of handing over
- 3.The claimants shall meet the respondent's costs
- Jurisdiction invoked
- Employment and labour relations jurisdiction over a dispute between former employees and a statutory employer (Employment and Labour Relations Court)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Marakalu & another v Kenya Ports Authority (Cause E056 of 2023) [2023] KEELRC 1937 (KLR)", Case Analysis (2023). Memorandum of claim filed June 21, 2023 (Cause not numbered in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1937/eng@2023-08-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.