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ELRCDismissedNot stated in the judgment as provided· [2024] KEELRC 955 (KLR)

Njinju v Kisii Bottlers Limited & another (Cause 1125 of 2016) [2024] KEELRC 955 (KLR)

Employment and Labour Relations Court
25 April 2024
MOMaureen Onyango
6,406 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~26 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court upheld an employer's dismissal of an employee suspected of theft, ruling that reasonable suspicion of a criminal offence can justify summary dismissal.

What this practically means

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Executive summary

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The Claimant, formerly an ICT administrator with the 1st Respondent, sued for declarations that his summary dismissal and subsequent prosecution (Kisii Criminal Case No. 646 of 2013) were unfair and malicious, together with damages for false imprisonment, malicious prosecution, discrimination, wrongful dismissal, loss of future earnings, and unpaid dues. The claim arose from the theft of a PG Programmer from his office while he attended a seminar, after which he was arrested, charged, acquitted under section 210 of the Criminal Procedure Code, and summarily dismissed following a Staff Advisory Committee hearing on 24th June 2013. The 1st Respondent justified the dismissal under section 44(4)(g) of the Employment Act; the 2nd Respondent maintained the prosecution followed proper investigations and the DPP's advice. Maureen Onyango, J, framed the principal issue as whether the termination was unfair and whether the reliefs were due. Applying section 47(5) of the Employment Act and the Court of Appeal's guidance in Janet Nyandiko v Kenya Commercial Bank, the court found valid and justifiable reasons for dismissal — the loss of the machine in the claimant's custody, his failure to hand it over, and his unreported damaged secure lock — and found the procedure compliant with sections 41 and 45. The malicious prosecution and false imprisonment claims failed for want of proof of malice or spite. The claim was dismissed in its entirety except that the 1st Respondent was directed to release the Claimant's terminal dues forthwith, with each party bearing its own costs. Dated, signed and delivered virtually on 25th April 2024.

Key legal issues

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01

Validity of the reasons for termination

Holding

The employer had valid and justifiable grounds: loss of a valuable programmer in the claimant's custody, failure to hand it over, and the unreported damaged secure lock

Reasoning

The court found it common ground that an expensive programmer was lost while in the claimant's custody. He was negligent in not handing it over before leaving for a two-day seminar, and the secure lock to his office was found damaged from the inside without any report made. An investigation report recommended disciplinary action, making suspicion of his involvement neither farfetched nor baseless.

p. 11
02

Fairness of the disciplinary procedure

Holding

The procedure complied with sections 41 and 45 of the Employment Act; the claimant understood the meeting as a disciplinary hearing and was heard

Reasoning

The claimant was suspended, invited to a Staff Advisory Committee, and admitted in cross-examination that he was subjected to a disciplinary hearing. The minutes recorded he appeared without a witness and declined to answer questions or give submissions. Though it was not clear he was expressly told he could bring a colleague, the committee was aware of that requirement. The court applied the Court of Appeal's summary in Janet Nyandiko v Kenya Commercial Bank.

p. 12
03

Malicious prosecution and false imprisonment

Holding

Not proved; the arrest and prosecution were justified on the information available and no spite was demonstrated

Reasoning

The court held that acquittal following arrest and prosecution is not sufficient proof of malicious arrest or false imprisonment. There was a genuine theft complaint, investigations, and a charge on the DPP's advice. The claimant failed to prove spite or improper motive on the part of those who reported, arrested, or prosecuted him.

p. 13

Legal principles established

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  • Reasonable suspicion that an employee committed a criminal offence against the employer's property is a justifiable ground for summary dismissal
  • Section 41 of the Employment Act requires a hearing but does not prescribe the form it must take

Court orders

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  1. 1.The claim is dismissed
  2. 2.The 1st Respondent is directed to release the Claimant's terminal dues forthwith
  3. 3.Each party shall bear its own costs

Authorities

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Legislation

  • Employment Act, 2007sections 41, 44(4)(g), 45, 45(2)(c), 47(5), 49
  • Penal Codesection 281
  • Criminal Procedure Codesection 210
  • Limitation of Actions Actsection 4(1)

Cases cited (8)

  • Ol Pejeta Ranching Limited v David Wanjau Muhoro
    [2017] eKLR
  • GMV v Bank of Africa Limited
    [2013] eKLR
  • Catherine Wanjiku Kariuki v Attorney General & Another
    (2011) eKLR
  • Douglas Odhiambo Apel & Another v Telkom (K) Ltd
    CA 115/2006
  • Muruga vs AG
    (1982-88) KLR 133
  • Susan Mutheu Mutua
    (2018) eKLR
  • Nzoia Sugar Company Limited v Funguti
    (1988) KLR 399
  • Janet Nyandiko v Kenya Commercial Bank Limited
    [2017] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007

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, "Njinju v Kisii Bottlers Limited & another (Cause 1125 of 2016) [2024] KEELRC 955 (KLR)", Case Analysis (2024). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/955/eng@2024-04-25

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