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ELRCDismissedMCCR E754 of 2021 referred; instant claim filed 25 May 2023 (number not stated in judgment)· [2024] KEELRC 1494 (KLR)

Mbevi v Crystal Bay Resort (Cause E009 of 2022) [2024] KEELRC 1494 (KLR)

Employment and Labour Relations Court
2 February 2024
MMM. Mbarũ
1,699 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Employment Court refused to pause an unfair termination case just because related criminal charges were still pending in a lower court.

What this practically means

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Executive summary

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The respondent, Crystal Bay Resort, applied by notice dated 27 October 2023 for a stay of proceedings in this employment claim, pending the hearing and determination of Criminal Case No. E754 of 2021 – R. v Micah Mbevi, in which the claimant, a former Chief Accountant, is charged with altering cheques and stealing by an officer of the company, with the respondent as complainant. The respondent, through the affidavit of its director Roberto Lenzi, argued that the termination decision was triggered by the criminal charges and that fairness required the criminal case to conclude first. The claimant opposed, contending that employment claims and criminal proceedings are distinct, that the burdens of proof differ, that the court is independent and not bound by a subordinate criminal court, and that the application was a ploy to delay justice. Both parties filed written submissions citing authorities on each side. The court framed a single issue: whether proceedings should be stayed pending the criminal case. Applying Kenya Wildlife Service v James Mutembei, the court held that stay of proceedings is a grave judicial action impinging on access to justice and fair trial, with a high and stringent test. Relying on Attorney General v Andrew Maina Githinji, it held that internal disciplinary and civil employment processes are distinct from criminal proceedings arising from the same facts, and that the standard of proof differs. Since the claim is founded on the employment contract, staying it would not serve justice; nor is this superior court bound by a subordinate court's decisions. The application dated 27 October 2023 was dismissed, with costs to abide the outcome of the main claim.

Key legal issues

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Whether pending criminal charges against the claimant warrant a stay of the employment claim

Holding

The application for stay was dismissed; the criminal case does not bar or necessitate staying the employment claim

Reasoning

The court held that stay of proceedings is an extraordinary remedy impinging on access to justice and fair hearing, with a high and stringent test. An internal disciplinary process and civil employment claims are distinct from criminal proceedings; the standards of proof differ (beyond reasonable doubt versus balance of probabilities). The claim is founded on the employment contract, and this superior court is not bound by the outcome of a subordinate criminal court, so staying the claim would not meet the interests of justice.

p. 4

Legal principles established

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  • Stay of proceedings is a grave judicial action that interferes with a litigant's right to conduct litigation; the test for granting it is high and stringent
  • An employer's internal disciplinary process is distinct from criminal proceedings arising from the same facts, and the institution of one is not a bar to the other; the standard of proof differs
  • This Court is not bound by decisions of a subordinate criminal court, even where criminal proceedings arise out of the employment relationship

Court orders

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  1. 1.Application dated 27 October 2023 dismissed as without merit
  2. 2.Costs shall abide the outcome of the main claim

Authorities

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Legislation

  • Penal CodeSection 356(1) (also referred to as Section 356(a))
  • Penal CodeSection 282 (also referred to as Section 28)
  • Criminal Procedure CodeSection 193A
  • Employment and Labour Relations Court ActSection 3
  • Employment Act2007 (general reference)

Cases cited (8)

  • Amir Lodges Ltd & another v Mohammed Omar Shariff & another
    [2022] eKLR
  • Maina & 4 others v Director of Public Prosecutions & 4 others Petitions No. E106 and 160 of 2021 (consolidated)
    [2022] eKLR
  • Alphonce Shihalo Ngaira v Kenya Stationers Limited (Kensta Group)
    [2019] eKLR
  • Ismail Hassan Abdullahi v Kenya Pots Authority
    [2013] eKLR
  • Gladys Cherono v Board of Trustees NSSF & others
    [2021] eKLR
  • Kenya Wildlife Service v James Mutembei
    [2019] eKLR
  • Geoffrey Kiragu Njogu v the Public Service Commission
    Civil Appeal No. 57 of 2014
  • Attorney General & another v Andrew Maina Githinji & another
    [2016] eKLR
Jurisdiction invoked
Employment and Labour Relations Court Act, 2011, Section 3

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, "Mbevi v Crystal Bay Resort (Cause E009 of 2022) [2024] KEELRC 1494 (KLR)", Case Analysis (2024). MCCR E754 of 2021 referred; instant claim filed 25 May 2023 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1494/eng@2024-02-02

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