Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealDismissedCivil Appeal No. 22 of 2017

Clement Karuri v Kenya Ports Authority [2018] KECA 607 (KLR)

Court of Appeal
17 May 2018
2,041 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

#

Kenyan employers can fire you over workplace misconduct even if you were never charged in court, because disciplinary hearings use a lower standard of proof.

What this practically means

#

Executive summary

#
The Court of Appeal at Mombasa (Visram, Karanja and Koome, JJ.A) dismissed an appeal by Clement Karuri against the judgment of Rika, J. of the Employment and Labour Relations Court, which had dismissed his claim for unfair termination against the Kenya Ports Authority. The appellant, a security officer, was summarily dismissed in April 2009 after a consignment of whisky was found in a vehicle at the port gate allegedly belonging to him. His core complaints were that the allegations were criminal in nature and required proof beyond reasonable doubt; that the employer was bound by the outcome of criminal proceedings (which proceeded only against his co-accused); and that his termination was unfair. The court reaffirmed that internal disciplinary proceedings are distinct from criminal proceedings, being anchored in the employment contract and decided on a balance of probability, and that the institution of criminal proceedings is no bar to a disciplinary hearing on similar facts. On procedure, it found the respondent complied with its Disciplinary Handbook and Section 41 of the Employment Act, that the committees of inquiry and appeal were not shown to be impartial, and that the appellant never objected to their composition. On the substantive grounds, the court adopted the trial judge's findings that the appellant communicated with Eboso and was untruthful, and, drawing on the Canadian Supreme Court's contextual test in McKinley v B.C.Tel., held the dismissal was on valid grounds. The court stressed it would not substitute its decision for that of an employer. The appeal was dismissed with costs.

Questions the Court framed

#

The issues the Court set itself to decide, in its own words.

  1. 1.Whether criminal allegations against an employee must be proved beyond reasonable doubt in an internal disciplinary hearing
  2. 2.Whether the employer was bound by the outcome of criminal proceedings, which were not instituted against the appellant
  3. 3.Whether the appellant's services were unfairly terminated

Key legal issues

#
01

Distinction between disciplinary and criminal proceedings

Holding

Disciplinary hearings are contractual in nature and require proof only on a balance of probability; the absence of criminal proceedings against the appellant did not bar the disciplinary process.

Reasoning

The court drew on its own precedents to hold that employer disciplinary processes are anchored in the employment contract and governed by a lower standard of proof than criminal trials. Since criminal proceedings had only been instituted against Mr. Eboso, the respondent was entitled nonetheless to conduct a disciplinary hearing against the appellant on the same facts, and was not bound by the outcome of any criminal process.

p. 2
02

Fairness of procedure under Section 41 of the Employment Act

Holding

The respondent complied with its disciplinary manual and Section 41 of the Employment Act; the committees were not shown to be impartial, and the appellant never objected to their composition.

Reasoning

The court examined the record and found the disciplinary procedure laid down in the respondent's manual had been followed, as the appellant admitted in cross-examination. Alleged bad blood with a supervisor was immaterial because that supervisor sat on neither committee, and the appellant raised no objection to committee composition when he appeared before them.

p. 2
03

Validity of grounds for dismissal

Holding

The appellant was dismissed on valid grounds; evidence of text messages to Eboso and his conduct at the gate supported the employer's loss of confidence.

Reasoning

The court adopted the learned Judge's findings that the appellant communicated with Eboso, advised him 'the coast is clear', and was untruthful in evidence. Drawing on the Canadian Supreme Court's contextual approach in McKinley v B.C.Tel., dishonesty that breaks down the employment relationship justifies dismissal. The dismissal was accordingly on valid grounds.

p. 3

Legal principles established

#
  • Internal disciplinary proceedings are distinct from criminal proceedings and are decided on a balance of probability, not beyond reasonable doubt.
  • The institution of criminal proceedings is not a bar to disciplinary hearings or civil proceedings on the same facts.
  • On an unfair termination claim, the employee bears the burden of proving unfair termination while the employer must justify the grounds for termination.
  • An appellate court will not substitute its decision for that of an employer; it only determines whether the dismissal was valid and fair in the circumstances.

Court orders

#
  1. 1.Appeal dismissed with costs

The bench

#

One judgment of the whole court — no separate or dissenting opinions.

majority
majority
Martha Karambu Koome
M.K. KoomeJA
Currently serving
majority
On appeal from
Employment and Labour Relations Court at Mombasa
Cause No. 283 of 2013
Jurisdiction invoked
First appeal from the Employment and Labour Relations Court under the Employment and Labour Relations Court Act / Court of Appeal's appellate jurisdiction

Relief refused

#

Set-aside of dismissal and declarations/damages for unfair termination

Disciplinary hearing followed proper procedure, and dismissal was on valid grounds

p. 3

Costs

Appeal dismissed with costs to the respondent

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.

Internal disciplinary proceedings are anchored on the contract of employment and the burden of proof therein is on a balance of probability, while in criminal proceedings, proof beyond reasonable doubt is required.
p. 2Standard of proof in disciplinary proceedings
the institution of criminal proceedings is not a bar to civil proceedings or disciplinary hearings on similar facts.
p. 2Criminal proceedings as no bar to disciplinary process
the burden of proving that an unfair termination of employment or wrongful dismissal has occurred rests on the employee, while the burden of justifying the grounds for the termination of employment rests on the employer.
p. 2Burden of proof under Section 47(5) of the Employment Act
we ought not to substitute our decision for that of an employer. Our duty is to determine whether the decision to dismiss was valid and fair within the circumstances of the employer.
p. 3Appellate restraint in employment disputes
The upshot of the foregoing is that the appeal lacks merit and is hereby dismissed with costs.
p. 3Final orders

Issues in the judgment

#
minor

The judgment refers to the appellant's supervisor variously as 'Mr. Kioki' in counsel's submissions and 'Mr. Patrick Kioko' in the court's analysis.

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (2)

#

Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

#

Cite this brief

Caselaw, "Clement Karuri v Kenya Ports Authority [2018] KECA 607 (KLR)", Case Analysis (2018). Civil Appeal No. 22 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/607/eng@2018-05-17

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