Kalvince Ochieng Akelo v Bulkstream Limited (Consolidated with ELRC Cause Nos. E098 of 2025, E103 of 2025 and E112 of 2025)
The bottom line
#Kenya's Employment Court upheld the dismissal of four Bulkstream employees for taking kickbacks, ruling a second disciplinary process on fresh evidence was not double jeopardy.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the termination of the Claimants' respective contracts of employment was fair
- 2.Whether the Claimants are entitled to the reliefs sought
Key legal issues
#Whether the second disciplinary process breached section 41 of the Employment Act (procedural fairness)
The process was procedurally fair; notices were sufficiently precise, time allowed was reasonable in context, and documents were available for review
The notices identified the specific act (remittances to Bryton Oluoch), the period, and the Code clauses breached. Facts were peculiarly within the Claimants' knowledge; they responded within time, attended with representatives, and did not object or seek adjournment. The hearing was over two months after the notices, so the three days' notice of the hearing date was not the totality of preparation time. No prescribed timeline in any manual or contract was breached.
Whether the Respondent proved a valid and fair reason for dismissal (substantive fairness, sections 43, 45 and 44(4)(g))
Yes; the remittances to the overtime clerk evidenced collusion amounting to gross misconduct justifying summary dismissal
Section 43(2) requires proof of matters the employer genuinely believed to exist on reasonable grounds. The DCI report, M-Pesa analysis and the Claimants' own statements and refunds established a scheme of kickbacks for fraudulently allocated overtime. Kimambo admitted the arrangement at the hearing. Akelo's sugar cane farming explanation was uncorroborated and improbable. The dismissal fell within the band of reasonable responses.
Whether the second disciplinary process amounted to double jeopardy
No; the first process addressed passive receipt and retention of overpayments, the second on fresh DCI evidence addressed active collusion
The August 2024 warnings were for failing to report excess overtime, at a time when management believed the overpayments were an inadvertent error. The DCI report of 16th December 2024 disclosed a distinct, graver misconduct. Unlike Yator, the second process rested on new facts from an independent investigation. To hold otherwise would reward concealment. The refund was restitution, not punishment.
Whether the Claimants' admissions by refund and undertaking precluded them from demanding proof of the overpayments
Yes; by their conduct, signed documents and pleadings they admitted receipt of overtime for hours not worked and the quantum
Under section 17 of the Evidence Act, admissions may be proved against their makers. The Claimants refunded computed sums, signed consents and recovery letters without protest, and never pleaded coercion, fraud or mistake. They cannot approbate and reprobate by relying on the refund as completed punishment while seeking its return.
Legal principles established
#- Section 47(5) of the Employment Act creates a sequential burden: the employee must first show unfair termination occurred before the employer is called to justify the grounds
- Reasonableness of time to prepare for a disciplinary hearing is contextual, not arithmetical; section 41 prescribes no minimum notice period
- An employer who sanctions an employee for a lesser wrong in ignorance of facts later disclosing a graver wrong is not estopped from acting on the fresh facts; double jeopardy does not apply
- Recovery of wrongfully obtained overpayments is restitution, not punishment, and does not bar subsequent discipline for the misconduct by which the money was obtained
- The standard for dismissal is whether the decision fell within the band of reasonable responses of a reasonable employer
Court orders
#- 1.The claims in ELRC Cause No. E097 of 2025, ELRC Cause No. E098 of 2025, ELRC Cause No. E103 of 2025 and ELRC Cause No. E112 of 2025 are dismissed in their entirety
- 2.Each party shall bear its own costs
- 3.A copy of the judgment to be placed in each of the consolidated files
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Article 162(2) of the Constitution; Employment and Labour Relations Court Act, section 3
- Consolidated with
- ELRC Cause No. E098 of 2025 (Rambo Mwema v Bulkstream Limited), ELRC Cause No. E103 of 2025 (Raphael Ogutu v Bulkstream Limited), ELRC Cause No. E112 of 2025 (Wato Josi Kimambo v Bulkstream Limited)
Relief refused
#Declaration that the terminations were unlawful and unfair
Termination found both procedurally and substantively fair
Compensation under section 49(1)(c) and pay in lieu of notice
Summary dismissal for gross misconduct justifiably and fairly carried out carries no entitlement to notice or compensation
Refunds of sums deducted from salaries
Deductions were restitution of money that never belonged to the Claimants, refunded without protest
Salary for March 2025
Pay slips and terminal dues computations show March 2025 salary was processed and paid; not controverted
Costs
Each party shall bear its own costs
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The claims in ELRC Cause No. E097 of 2025, ELRC Cause No. E098 of 2025, ELRC Cause No. E103 of 2025 and ELRC Cause No. E112 of 2025 lack merit, and they are hereby dismissed in their entirety
Each party shall bear its own costs.
A termination that is substantively justified but procedurally unfair is unfair, and so is a termination that is procedurally impeccable but without a valid reason.
An employer that sanctions an employee for a lesser wrong, in ignorance of facts which, when later discovered through a proper investigation, disclose a graver wrong, is not thereby estopped from acting on those facts.
The Claimants cannot, in one breath, rely on the refund as the completed punishment for the overtime and, in the next, seek its return as money unlawfully deducted. They cannot approbate and reprobate.
The essence of consolidation is to facilitate the efficient and expeditious disposal of disputes, and to provide a framework for a fair and impartial dispensation of justice to the parties.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kalvince Ochieng Akelo v Bulkstream Limited (Consolidated with ELRC Cause Nos. E098 of 2025, E103 of 2025 and E112 of 2025)", Case Analysis (2026). ELRC Cause No. E097 of 2025 (Consolidated). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2730/eng@2026-09-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.