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ELRCDismissedCause No. 97 of 2006· [2007] KEELRC 10 (KLR)

KENYA UNION OF DOMESTIC, HOTELS, EDUCATIONAL INSTITUTIONS, HOSPITALS & ALLIED WORKERS v MOI UNIVERSITY [2007] KEELRC 10 (KLR)

Industrial Court of Kenya
28 March 2007
2,319 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Industrial Court confirmed employers can discipline employees without waiting for criminal cases to end, and an acquittal does not guarantee reinstatement.

What this practically means

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Executive summary

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The Union reported a dispute under Section 14(7) of the Trade Disputes Act, Cap 234, concerning the summary dismissal of its member, Tom Eshitemi Mapesa, a Junior Cashier employed by Moi University since 1987. The grievant was dismissed on 2nd February 1999 for failing to surrender or account for Kshs. 179,300/= collected from students between 11th and 22nd January 1999. He was separately prosecuted for stealing by servant but was acquitted under Section 210 of the Criminal Procedure Code because the prosecution failed to offer evidence. The Minister for Labour, following an investigation, recommended that the dismissal be reduced to normal termination with payment under the Collective Bargaining Agreement; the Union accepted this, while the University accepted it only on condition the money be recovered. Before the Industrial Court, the Union argued the dismissal violated natural justice because the University failed to await the criminal verdict and denied the grievant representation under Clause 9(a) of the collective agreement; it sought reinstatement or, alternatively, normal termination with terminal dues and compensation. The University maintained the grievant was heard repeatedly, failed to account, and was lawfully dismissed for gross misconduct under Section 17 of the Employment Act and Clause 6(g) of the collective agreement. Following the Supreme Court of India's decision in Delhi Cloth & General Mills Ltd v Kushal Bhan, the Court held that natural justice does not require an employer to await a criminal court's verdict before disciplining an employee, and that an acquittal resulting from the prosecution's failure to tender evidence is not an honourable acquittal. Taking exception to the Minister's findings and recommendation, the Court upheld the dismissal and rejected the Union's demand in toto on 28th March 2007.

Key legal issues

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01

Whether an employer must await the outcome of criminal proceedings before disciplining an employee

Holding

No. Natural justice does not require the employer to wait for the decision of the criminal trial court; in a simple case the employer may proceed with the domestic disciplinary process concurrently.

Reasoning

Adopting the Supreme Court of India's reasoning in Delhi Cloth & General Mills Ltd v Kushal Bhan, the Court held that while employers often stay enquiries pending the criminal trial, natural justice does not compel this. Where the case is of a simple nature - an employee who collected money and failed to remit it - the employer cannot be blamed for proceeding without awaiting the criminal verdict.

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02

Whether the grievant's criminal acquittal established innocence and entitled him to reinstatement or mitigation of the dismissal

Holding

No. The acquittal under Section 210 of the Criminal Procedure Code was for lack of evidence, not an honourable acquittal, and carried no blemish-free presumption in disciplinary proceedings.

Reasoning

The Court held that an honourable acquittal exists only where the accusation is found to be malicious and false. Where an accused is acquitted because the prosecutor failed to tender or produce evidence, or on benefit of doubt or compromise, the person cannot be deemed honourably acquitted, and the acquittal does not make the employer's disciplinary action unlawful.

p. 4
03

Whether the summary dismissal for gross misconduct and negligence of duty was lawful and reasonable on the merits

Holding

Yes. The grievant collected Kshs. 179,300/= from students and, despite ample opportunity, refused, neglected or ignored to account for or remit it, justifying summary dismissal under the Employment Act and the collective agreement.

Reasoning

The Court found no dispute that the grievant actually collected the amount. He was given ample opportunity to account for it during disciplinary proceedings but declined, presumably to avoid prejudicing his criminal case. Given the simple and clear facts, his dismissal under Section 17 of the Employment Act and Clause 6(g) of the collective agreement was upheld as lawful, fair and reasonable.

p. 3

Legal principles established

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  • The principles of natural justice do not require an employer to wait for the decision of a criminal trial court before taking disciplinary action against an employee, although it may be advisable in grave or complex cases
  • An acquittal arising from the prosecution's failure to tender evidence is not an honourable acquittal and does not bar or vitiate an employer's disciplinary action

Court orders

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  1. 1.The findings and recommendation of the Minister (that the dismissal be reduced to normal termination with payment under the Collective Bargaining Agreement) are not accepted
  2. 2.The action taken by the University administration against the grievant is upheld
  3. 3.The Union's demand is rejected in toto as untenable
Jurisdiction invoked
Section 14(7) of the Trade Disputes Act, Cap 234, Laws of Kenya, following the statutory certificates from the Labour Commissioner and the Minister for Labour under Section 14(9)(e) and (f)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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

Cite this brief

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Cite this brief

Caselaw, "KENYA UNION OF DOMESTIC, HOTELS, EDUCATIONAL INSTITUTIONS, HOSPITALS & ALLIED WORKERS v MOI UNIVERSITY [2007] KEELRC 10 (KLR)", Case Analysis (2007). Cause No. 97 of 2006. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2007/10/eng@2007-03-28

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