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ELRCDismissedNot stated in the judgment (Memorandum of Appeal lodged 1 December 2023)

Arunga v Kisumu Water & Sewerage Co Ltd (Appeal E065 of 2023) [2024] KEELRC 1013 (KLR)

Employment and Labour Relations Court
17 April 2024
1,332 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~5 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court upheld the dismissal of a Kisumu Water employee caught taking company items, ruling no criminal charges are needed before discipline.

What this practically means

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Executive summary

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The Appellant was summarily dismissed by Kisumu Water & Sewerage Co Ltd after being caught, in a security trap, loading items at the back gate of the premises during the COVID-19 lockdown period. His claim for unfair termination and breach of contract was dismissed by the Principal Magistrate's Court on 20 November 2023, and he appealed to the Employment and Labour Relations Court at Kisumu. On first appeal, the Court, guided by the Court of Appeal's directive that a first appellate court must re-evaluate, re-assess and reanalyse the record, considered procedural and substantive fairness and the contractual heads of claim. On procedure, the Court held the hearing was fair: the invitation was copied to the trade union, the Appellant did not indicate witnesses, and a same-day decision was not shown to be unfair or prejudicial. On substance, the Court found the Appellant's accounts inconsistent and that he was caught red-handed in a laid trap; it held that the absence of criminal charges does not bar disciplinary action since the two processes have distinct purposes and thresholds. The Court affirmed that the magistrate did not err. The contractual heads all failed: gratuity was admitted not to be provided for in the contract, the gross wage provision precluded house allowance, and the pleaded leave allowance of Kshs 104,943 lacked contractual or legal foundation, the Employment Act prescribing annual leave of at least 21 days on full pay instead. The appeal was dismissed with costs on 17 April 2024.

Questions the Court framed

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

  1. 1.Whether the disciplinary and dismissal process accorded with procedural fairness (trade union representation, timing of decision, witnesses)
  2. 2.Whether the Respondent had valid and fair reasons to summarily dismiss the Appellant
  3. 3.Whether the Appellant was entitled to compensation, pay in lieu of notice, gratuity, house allowance and leave allowance
  4. 4.Whether the Principal Magistrate erred in evaluation of evidence and law

Key legal issues

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01

Procedural fairness of the disciplinary process

Holding

Process was fair: union was invited, no witnesses were indicated, and same-day decision caused no prejudice

Reasoning

The invitation to the disciplinary hearing was copied to the trade union and there was no suggestion it was not delivered, so the employer could not be expected to compel union attendance. The record did not show the Appellant had witnesses. Deciding on the day of the hearing depends on circumstances, and the Appellant showed no unfairness or prejudice.

p. 3
02

Substantive fairness of the dismissal

Holding

Valid and fair reasons established; Appellant caught in a laid trap with inconsistent accounts

Reasoning

The Appellant gave inconsistent versions across the disciplinary hearing, witness statement and court testimony. Security guards laid a trap after noticing items, and the Appellant was caught loading them; his supervisor was called. Absence of criminal prosecution does not invalidate discipline since the criminal threshold is higher. The magistrate did not err in finding valid reasons.

p. 3
03

Breach of contract heads (gratuity, house allowance, leave allowance)

Holding

All failed for want of contractual or legal foundation

Reasoning

The Appellant admitted on cross-examination that the contract made no provision for gratuity. The contract provided a gross wage, precluding a separate house allowance claim. The pleaded leave allowance had no contractual or statutory basis, as the Employment Act prescribes annual leave of at least 21 days on full pay rather than a leave allowance.

p. 4

Legal principles established

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  • A first appellate court must re-evaluate, re-assess and reanalyse the evidence and determine whether the trial court's conclusions should stand
  • Failure to lay criminal charges does not bar an employer from taking disciplinary action on the same allegations; the thresholds differ
  • A disciplinary hearing is not unfair merely because the employer decides on the same day, absent prejudice

Court orders

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  1. 1.The Appeal is dismissed
  2. 2.The Appellant to pay the Respondent's costs

The bench

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

majority

Wrote the judgment

On appeal from
Principal Magistrates Court
Jurisdiction invoked
First appellate jurisdiction under the Employment Act/Civil procedure from the Principal Magistrates Court (not expressly cited)

Relief refused

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Compensation and pay in lieu of notice

Respondent proved valid and fair reasons for dismissal

p. 3

Gratuity

Contract of employment did not provide for gratuity

p. 4

House allowance

Contract provided for gross wage

p. 4

Leave allowance

No contractual or legal basis; Employment Act provides for annual leave on full pay, not leave allowance

p. 4

Costs

The Appeal is dismissed with costs (Appellant to pay Respondent's 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.

The Court has re-evaluated the evidence placed before the Principal Magistrate and finds that she did not fall into an error of law or fact.
p. 4First appellate re-evaluation
The purposes and objectives of a criminal process and a disciplinary process are difierent, and the mere fact that criminal charges have not been laid against an employee cannot stop an employer from taking disciplinary action on the same allegations.
p. 3Disciplinary process vs criminal process
The Appeal is dismissed with costs.
p. 4Final orders

Issues in the judgment

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minor

Case number of the appeal not stated in the judgment text

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, "Arunga v Kisumu Water & Sewerage Co Ltd (Appeal E065 of 2023) [2024] KEELRC 1013 (KLR)", Case Analysis (2024). Not stated in the judgment (Memorandum of Appeal lodged 1 December 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1013/eng@2024-04-17

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