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ELRCDismissedStatement of Claim dated 19th July 2013 (Cause number not stated in judgment)

Timothy Asudi Malwa v E-Gap Solutions Limited & another [2014] KEELRC 847 (KLR)

Industrial Court of Kenya (Employment and Labour Relations Court)
13 March 2014
839 words in judgment
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The bottom line

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Kenya's Employment Court ruled that an employee's criminal acquittal does not stop an employer from taking disciplinary action, and police conduct cannot be dragged into employment cases.

What this practically means

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Executive summary

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The Claimant sued the Respondent for wrongful dismissal by a Statement of Claim dated 19th July 2013. The Respondent filed a Response and Counterclaim and subsequently applied for joinder of an intended Third Party, alleging that the Third Party's laxity in investigating and prosecuting Criminal Case No. 2687 of 2010, in which the Claimant was the Accused and the Respondent the Complainant, contributed to the Claimant's acquittal on a technicality. The intended Third Party opposed the application through grounds of opposition and submissions, questioning the Court's jurisdiction over the conduct of the criminal prosecution and asserting that no nexus between alleged laxity and the acquittal had been established, nor had the alleged laxity been particularised. The Court, per Linnet Ndolo, Judge, first addressed jurisdiction, holding that Section 12(1)(a) of the Industrial Court Act, 2011 confines the Court to employment and labour relations disputes. It held that a criminal trial and internal disciplinary proceedings are distinct processes with different procedural and standard-of-proof requirements, and that acquittal in a criminal case does not render an employee immune from disciplinary action, applying the Court of Appeal decision in Kibe v Attorney General. The Court found that the Respondent had banked on a conviction to forestall termination claims, that an employer cannot abdicate its disciplinary responsibility to the Police, and that alleged police laxity is not remedied by joinder in an employment dispute. The application for joinder was disallowed with no order for costs on 13th March 2014.

Questions the Court framed

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

  1. 1.Whether the Industrial Court has jurisdiction to entertain the Respondent's application for joinder of the intended Third Party
  2. 2.Whether the Respondent has made out a case for joinder of the intended Third Party in the Cause filed by the Claimant against the Respondent

Key legal issues

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01

Jurisdiction of the Industrial Court over the application for joinder

Holding

The Court's jurisdiction is confined to employment and labour relations disputes under Section 12(1)(a) of the Industrial Court Act, 2011; the application concerned the conduct of a criminal prosecution, which is not within that jurisdiction.

Reasoning

The Court held that Section 12(1)(a) donates exclusive original and appellate jurisdiction over disputes relating to or arising out of employment. The Respondent's complaint was essentially about the manner in which the police investigated and prosecuted Criminal Case No. 2687 of 2010, a matter outside the employment dispute between the parties, and therefore the Court had no jurisdiction to entertain it.

p. 2
02

Relationship between criminal acquittal and employment disciplinary processes

Holding

A criminal trial and internal disciplinary proceedings are distinct; an acquittal does not shield an employee from disciplinary action, nor does departing from a criminal outcome render an employer's decision wrongful.

Reasoning

Relying on Kibe v Attorney General, the Court reasoned that the two processes have different procedural and standards of proof requirements. An employer may rely on a criminal trial outcome but need not follow it. Conversely, the employer must have a solid basis for disciplinary action irrespective of criminal proceedings, and cannot shift that responsibility to the Police.

p. 2
03

Whether joinder of the intended Third Party was warranted

Holding

No case for joinder was made out; the alleged nexus between the police laxity and the Claimant's acquittal was neither established nor particularised.

Reasoning

The Respondent sought joinder on the basis that the Third Party bungled the criminal case, hoping a conviction would forestall termination claims. The Court found that the alleged laxity was not particularised and that the proper remedy for dissatisfaction with police investigation or prosecution does not lie in joinder to an employment dispute.

p. 2

Legal principles established

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  • Acquittal in a criminal case does not automatically render an employee immune to disciplinary action by an employer
  • A criminal trial and internal disciplinary proceedings are distinct processes with different procedural and standard of proof requirements
  • An employer cannot abdicate its disciplinary responsibility to the Police, and alleged police laxity is not remedied by joinder in an employment dispute

Court orders

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  1. 1.The Respondent's application for joinder of the intended Third Party is disallowed
  2. 2.No order for costs

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Section 12(1)(a) of the Industrial Court Act, 2011 read with Article 162(2) of the Constitution

Relief refused

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Joinder of the intended Third Party to the employment Cause

The Court found no legal basis for joinder; the proper remedy for alleged police laxity in the criminal case does not lie in joining the Third Party to an employment dispute

p. 2

Costs

No order for costs - each party to bear own costs

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

A plain reading of this provision leads to the conclusion that the business of the Industrial Court is to deal with the whole gamut of employment disputes.
p. 2Jurisdiction of the Industrial Court
a criminal trial and internal disciplinary proceedings initiated by an employer against an employee are two distinct processes with different procedural and standard of proof requirements
p. 2Criminal proceedings versus disciplinary proceedings
The employer cannot abdicate this responsibility to the Police and where an employer feels that the Police has failed to discharge its investigation and prosecution mandate in a criminal trial, the proper remedy does not lie in joiner in an employment dispute between an employer and an employee.
p. 2Employer's independent disciplinary responsibility
For the foregoing reasons I find no legal basis for joiner of the intended Third Party and the Respondent's application is therefore disallowed with no order for costs.
p. 2Final orders - application disallowed

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, "Timothy Asudi Malwa v E-Gap Solutions Limited & another [2014] KEELRC 847 (KLR)", Case Analysis (2014). Statement of Claim dated 19th July 2013 (Cause number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/847/eng@2014-03-13

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