Isaac Nduro Murithi v Mogas Kenya Limited [2018] KEELRC 2590 (KLR)
The bottom line
#A Kenyan employer must hold a fair internal hearing before firing a worker, even if that worker faces criminal charges in court.
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 claimant's employment was lawful, procedural and fair
- 2.Whether the claimant is entitled to notice pay, compensation, salary for the period of the criminal proceedings, service pay and a certificate of service
Key legal issues
#Whether an acquittal in criminal proceedings and absence of internal disciplinary process render termination unfair
The termination was unfair because the employer followed neither due process nor the Employment Act; an acquittal alone does not decide the matter, but the employer must still conduct internal disciplinary measures with notice and hearing
The court relied on authority distinguishing criminal trials from internal disciplinary proceedings: the former requires proof beyond reasonable doubt, the latter a balance of probability. Even where criminal proceedings exist, the employer must address sections 41 and 43 of the Employment Act, 2007. The respondent filed no defence and undertook no disciplinary process, so the termination was unfair under section 45.
Whether the claimant was entitled to salary for the period between his arrest and acquittal
The claim was refused because the claimant admitted he never returned to work after his arrest, and the unfair termination had already been redressed through compensation
Although the claimant pleaded he was advised to await the criminal case outcome, he contradicted this under questioning, confirming he never went back to work. As he offered no labour after 15 August 2015, and compensation for the unfair termination had been awarded, no further salaries were payable for that period.
Legal principles established
#- Even where there are criminal proceedings against an employee, the employer must undertake internal disciplinary measures, with notice and hearing, before terminating employment
- Termination requires a valid and genuine reason under section 43 and notice and hearing under section 41 of the Employment Act, 2007; failure renders the termination unfair under section 45
Court orders
#- 1.A declaration that the respondent unfairly terminated the claimant's employment
- 2.Compensation awarded at Kshs. 211,680.00
- 3.Notice pay of Kshs. 17,640.00
- 4.Certificate of Service be issued in accordance with section 51 of the Employment Act, 2007
- 5.Costs of the suit to the claimant
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment and Labour Relations Court Act and the Employment Act, 2007
Relief refused
#Payment of salary from June 2015 to June 2017 (Kshs. 405,720.00)
The claimant testified he never went back to work after his arrest, so he offered no labour for that period; the unfair termination was already redressed through compensation
Service pay of Kshs. 79,380.00
The respondent paid statutory dues to NSSF and NHIF, which are payable to the statutory bodies, not to the claimant
Costs
Costs of the suit awarded to the claimant
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.
Even where there are criminal proceedings against an employee, internal disciplinary measures must be undertaken by the employee to address any misconduct at work.
Where the employer fails to follow due process, such as happened in this case, the termination of employment is unfair in terms of section 45 of the Employment Act, 2007.
Accordingly, judgement is entered for the claimant against the respondent; a) A declaration that the respondent unfairly terminated the claimant’s employment; b) Compensation awarded at Kshs.211, 680.00; c) Notice pay Kshs.17, 640.00; d) Certificate of Service be issued in accordance with section 51 of the Employment Act, 2007. e) Costs of the suit.
Issues in the judgment
#The judgment states the claim for salary runs 'from August, 2015 to June, 2017' in paragraph 19, whereas the claim as pleaded (paragraph 5(d)) is for salary 'from June, 2015 to June, 2017'
Paragraph 12 contains an apparent typographical error, 'termination of employment between an employer and employer', and paragraph 15 refers to 'dismissing an employer' where an employee is meant
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Isaac Nduro Murithi v Mogas Kenya Limited [2018] KEELRC 2590 (KLR)", Case Analysis (2018). Cause No. 270 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/2590/eng@2018-09-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.