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ELRCPartially AllowedMemorandum of claim filed June 21, 2023 (Cause not numbered in judgment)· [2023] KEELRC 1937 (KLR)

Marakalu & another v Kenya Ports Authority (Cause E056 of 2023) [2023] KEELRC 1937 (KLR)

Employment and Labour Relations Court
4 August 2023
2,991 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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Two former employees of the Kenya Ports Authority, a statutory corporation, sued after being summarily dismissed on February 10, 2023 following their involvement in the theft of six Hot Rolled Coils valued at Kshs 3,600,000 from the Port of Mombasa. They had been charged in Criminal Case No E422 of 2022 with stealing goods from a customs bonded warehouse and computer forgery. They sought mandatory injunctions to restore half salary and medical cover, an order restraining eviction of the 1st claimant from a staff house at Makupa Asian quarters, and an order compelling supply of the disciplinary committee minutes and ruling to support pending appeals. The respondent asserted that the dismissal followed due process, that appeals were dismissed by the Board of Directors on May 12, 2023, and that no benefits survive the employment relationship. The court framed four issues. It held that criminal and internal disciplinary processes are independent and may proceed concurrently, that the claimants were accorded hearings under section 41 of the Employment Act, and that summary dismissal was justified under section 44(4)(f) and (g) for gross misconduct. It further held that all employment benefits, including housing, ceased with the employment relationship on February 10, 2023. The claim was dismissed; however, the respondent was ordered to supply the disciplinary minutes and ruling, the 1st claimant was ordered to vacate the staff house and pay rent from February 10, 2023, and the claimants were ordered to meet the respondent's costs.

Key legal issues

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01

Whether pending criminal charges bar the employer's disciplinary process

Holding

No; criminal and disciplinary proceedings are distinct and independent, with different standards of proof, and may run concurrently.

Reasoning

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.

p. 5
02

Whether the summary dismissal was procedurally fair and substantively justified

Holding

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.

Reasoning

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.

p. 5
03

Whether post-employment benefits (half salary, medical cover, housing) could be restored pending appeals

Holding

No; all benefits ceased with the employment relationship upon summary dismissal for lawful cause.

Reasoning

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.

p. 6
04

Whether the claimants were entitled to the disciplinary minutes and ruling

Holding

Yes; the respondent was directed to supply the minutes and ruling, granted for posterity despite dismissal of the claim.

Reasoning

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.

p. 6

Legal principles established

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  • 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

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  1. 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. 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. 3.The claimants shall meet the respondent's costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 35 (including article 35(b))
  • Penal CodeSection 279
  • Computer Misuse and Cybercrime ActSection 25(1)
  • Employment Act, 2007Sections 17(1)(b), 41, 44(4)(f) and (g)
  • Kenya Ports Authority Actnull (incorporation of the respondent)

Cases cited (5)

  • Rebecca Ann Maina & others v Jomo Kenyatta University of Agriculture & Technology
    Cause No 1789 of 2013
  • Teachers Service Commission v Paul Olweny Ngowe
    [2021] eKLR
  • David Ngugi Waweru v Attorney General
    [2017] eKLR
  • James Mugera Igati v Public Service Commission of Kenya
    [2014] eKLR
  • Christopher Amasava v Kenya Revenue Authority & another
    [2021] eKLR
Jurisdiction invoked
Employment and labour relations jurisdiction over a dispute between former employees and a statutory employer (Employment and Labour Relations 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, "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.