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ELRCDismissedNot stated in the judgment text provided· [2024] KEELRC 2598 (KLR)

Gicharu v Safaricom Limited & 3 others (Cause 884 of 2019) [2024] KEELRC 2598 (KLR)

Employment and Labour Relations Court
25 October 2024
9,735 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~39 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ruled that an employer acted fairly in dismissing an employee over missing cash, and an acquittal alone doesn't prove malicious prosecution.

What this practically means

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Executive summary

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The Claimant, a Team Leader at the 1st Respondent's Thika Road Mall retail shop, was summarily dismissed on 8th January 2018 after being accused of failing to account for Kshs 250,000 during end-of-day reconciliation on 27th September 2017. He alleged the money was banked that evening, that his arrest, overnight detention and prosecution in Kiambu Criminal Case No. 1581 of 2017 (terminated under section 210 of the Criminal Procedure Code) were malicious, and that his dismissal was procedurally and substantively unfair. He sought declarations, 12 months' salary as compensation, notice pay, reinstatement and general damages. The 1st Respondent maintained the dismissal was for gross misconduct - the claimant had personally banked cash contrary to the Retail Cash Handling Procedure, which required banking through Cash in Transit - and that a fair procedure was followed. The 2nd and 3rd Respondents denied any role in malicious prosecution. The court framed three issues: substantive and procedural fairness of the dismissal; malice of the arrest, detention and prosecution; and entitlement to reliefs. It held valid and justifiable reasons existed for the dismissal, applying the band of reasonableness test from British Leyland v Swift; that although no show cause letter was issued, section 41 was satisfied since the claimant interacted with the accusations through interrogation, a recorded statement and a disciplinary hearing; and that malicious prosecution was not proved, acquittal per se being insufficient under Nzoia Sugar v Funguti and Murunga v Attorney General. The entire suit was dismissed with costs on 25th October 2024.

Key legal issues

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01

Whether the summary dismissal was substantively fair

Holding

The court found the claimant guilty of gross misconduct for banking cash directly contrary to the Retail Cash Handling Procedure and held the dismissal justified

Reasoning

The claimant conceded familiarity with the procedure under which only CIT conducted banking, and did not exhibit any alternative procedure allowing a Team Leader to bank cash. His conduct - hesitation to account for the money, the unexplained resignation email, and delayed banking - was viewed as dishonest and indicative of a guilty conscience. The employer's reason was plausible and within the band of reasonableness, so the court would not interfere.

p. 15
02

Whether the dismissal was procedurally fair despite absence of a show cause letter and presence of the accuser on the disciplinary panel

Holding

Procedure was fair; the claimant interacted with the accusations through interrogation, statement and a disciplinary hearing, and no egregious omission was shown

Reasoning

Section 41 does not prescribe format; the claimant was interrogated by the Ethics and Compliance Department, recorded a statement, was invited to a hearing with the accusations outlined, and attended. The show cause letter is industry practice, not a statutory requirement. The court stressed the substance of interaction with allegations over formal steps, holding that no termination process can achieve the precision of a drone missile.

p. 16
03

Whether the arrest, detention and prosecution were malicious

Holding

Not proved; the employer had reasonable and probable cause to report the matter to police, and the acquittal did not establish malice

Reasoning

Applying Murunga v Attorney General, the claimant had to prove prosecution by a responsible person, favourable termination, absence of reasonable and probable cause, and malice. The employer had justifiable cause to report after the claimant failed to account for missing money and attempted to resign. Returning the money later is no defence to suspected theft. No evidence of false report, spite or ill will was adduced.

p. 17

Legal principles established

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  • Termination must satisfy both substantive and procedural fairness; the employer must prove valid reasons under section 43 Employment Act
  • The court will not substitute its view for the employer's on the reason for termination where the reason is plausible, applying the band of reasonableness test
  • Section 41 of the Employment Act does not prescribe the format of explanation or mode of hearing; decision-making bodies are masters of their own procedures provided they achieve appropriate fairness
  • Acquittal per se is not sufficient basis for a malicious prosecution claim; spite, ill will and lack of reasonable and probable cause must be proved

Court orders

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  1. 1.Claim for unfair termination dismissed (valid and justifiable reasons for termination existed)
  2. 2.Holding that the termination of the claimant's service was in accordance with a fair procedure
  3. 3.Claim for unlawful detention and malicious prosecution dismissed for insufficient proof
  4. 4.The suit in its entirety dismissed with costs
Jurisdiction invoked
Section 12 of the Employment and Labour Relations Court Act (cited by the Claimant's counsel as conferring jurisdiction over malicious prosecution as a matter arising from the employment relationship); claim brought under Article 41 of the Constitution and the Employment Act

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, "Gicharu v Safaricom Limited & 3 others (Cause 884 of 2019) [2024] KEELRC 2598 (KLR)", Case Analysis (2024). Not stated in the judgment text provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2598/eng@2024-10-25

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