Ochanda v Kenya Hospital Association Ltd t/a Nairobi Hospital (Civil Appeal 121 of 2017) [2019] KECA 889 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that a criminal acquittal does not stop an employer from disciplining or dismissing an employee for the same conduct.
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 appellant was unfairly dismissed
- 2.whether the learned Judge properly exercised her discretion in failing to award him damages for unlawful termination
Key legal issues
#Whether the summary dismissal was for a lawful reason under section 44 of the Employment Act
Yes. Willful neglect, careless performance of duty and reasonable suspicion of a criminal offence against the employer are grounds for gross misconduct under section 44(4)(c) and (g).
The appellant casually and negligently dealt with the delivery of fuel, causing loss to the employer. On those facts the Court found reasonable and sufficient grounds to suspect participation in a crime, and that through willful neglect he failed to diligently perform his work or did so carelessly by failing to alert the Senior Accountant. Transgression was proved, satisfying section 44 of the Employment Act.
Whether the procedure followed satisfied section 41(2) of the Employment Act and the right to be heard
Yes. The appellant was served with a show cause letter, understood the reasons, fully participated in a lengthy disciplinary hearing and made submissions; an oral hearing is not in all cases required for a fair hearing.
Section 41(2) requires an employer to hear and consider representations before summary dismissal. The record showed a show cause letter, notice of the disciplinary hearing, the appellant's full participation without a colleague, and submissions received. Relying on ex-parte Jones and KRA v Murgani, the Court held fairness is not determined solely by the oral nature of a hearing; an exchange of written material can suffice.
Whether the withdrawal of criminal charges and the appellant's discharge precluded disciplinary action
No. Discharge under section 87(a) of the Criminal Procedure Code is not proof of innocence, and an acquittal does not render an employee immune to employer discipline.
The prosecution withdrew charges under section 87(a) after failing to procure witnesses. Such a discharge does not amount to an acquittal on the merits and does not bar subsequent proceedings on the same facts. The Court, adopting Nelson Mwangi Kibe v Attorney General, held that criminal trials and internal disciplinary proceedings are distinct processes with different procedures and standards of proof, so the employer's discipline was not rendered wrongful by the criminal outcome.
Legal principles established
#- An acquittal or discharge in a criminal case does not automatically render an employee immune to employer disciplinary action; the two are distinct processes with different procedures and standards of proof.
- On a first appeal, the Court of Appeal has a duty to re-evaluate the evidence on the record and come to its own independent conclusions.
- The right to be heard in a disciplinary process does not necessarily entail an oral hearing; a written exchange may satisfy the fairness requirement.
- Discharge of an accused under section 87(a) of the Criminal Procedure Code is not proof of innocence and does not bar subsequent proceedings on the same facts.
Court orders
#- 1.The appeal is dismissed with costs to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Employment and Labour Relations Court at Nairobi
- E&LRC No. 1636 of 2013
- Jurisdiction invoked
- First appeal to the Court of Appeal from the Employment and Labour Relations Court
- Consolidated with
- E&LRC No. 636 of 2014
Relief refused
#Declaration that dismissal was unlawful and unfair; damages/compensation of Kshs. 10,000,000
Summary dismissal was for lawful cause under section 44 of the Employment Act and followed a fair procedural hearing; the appellant's discharge under section 87(a) of the Criminal Procedure Code was not proof of innocence
Costs
The appeal is 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.
There is no merit in the appeal. It is accordingly dismissed with costs.
An acquittal in a criminal case does not automatically render an employee immune to disciplinary action by an employer for the reason that a criminal trial and an internal disciplinary proceeding initiated by an employer against an employee are two distinct processes with different procedures and standard of proof requirements.
It is our primary duty to re-evaluate the evidence on the record in order to come to our own independent conclusions on that evidence and the law.
the hearing does not necessarily have to be an oral hearing in all cases. There is ample authority that decision making bodies other than courts and bodies whose procedures are laid down by statute are masters of their own procedure.
the discharge of the appellant in itself was not proof of his innocence and could not operate as a bar to subsequent proceedings against him on account of the same facts.
Issues in the judgment
#The judgment states the alleged fraud occurred on 17th July, 2018, yet the dismissal letter is dated 7th August, 2013 and the show cause letter 19th July, 2013, indicating the date of the alleged scam is misstated (likely 2013).
The disciplinary hearing date (23rd July, 2013) predates the criminal charges being read to the appellant (25th July, 2013), which sits awkwardly with the narrative sequence.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ochanda v Kenya Hospital Association Ltd t/a Nairobi Hospital (Civil Appeal 121 of 2017) [2019] KECA 889 (KLR)", Case Analysis (2019). Civil Appeal No. 121 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/889/eng@2019-03-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.