Macharia v Cellulant Kenya Limited (Cause E6514 of 2020) [2025] KEELRC 466 (KLR)
The bottom line
#Kenya's Employment Court upheld Cellulant's dismissal of an employee facing theft charges, but refused to make her repay the disputed millions without proof of her exact share.
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 summary dismissal of the claimant was unfair in procedure and in substance, including whether the pending criminal case barred or should have deferred the disciplinary process
- 2.Whether the claimant was entitled to terminal dues of Kshs. 8,380,500.00 comprising notice pay, 12 months' compensation, house allowance and service gratuity
- 3.Whether the claim for house allowance was time-barred under section 89 of the Employment Act
- 4.Whether the respondent's counterclaim to recover Kshs. 13,621,299/= from the claimant was established
Key legal issues
#Fairness of the summary dismissal procedure and reason
The dismissal was procedurally fair and substantively justified under sections 41, 43, 44(4)(g) and 45 of the Employment Act
The Court found the court order the claimant relied on did not bar attendance at the disciplinary hearing. Criminal charges constituted well-founded reasonable suspicion under section 44(4)(g). The claimant admitted preparing a payment list including her brother, a non-artist, as a beneficiary. Notice and hearing opportunities were given, and the reason for dismissal was valid and fair.
Whether the pending criminal case barred or should have deferred the disciplinary process
No - criminal proceedings do not bar disciplinary proceedings, and the claimant had no valid reason to skip the hearing
The Court considered the claimant's reliance on the criminal-case order to avoid the hearing and held there was no valid reason founded on that order for non-attendance. She acknowledged that a criminal case differs from a disciplinary case, and the respondent had accommodated her on suspension with pay throughout.
The respondent's counterclaim for Kshs. 13,621,299/=
The counterclaim failed; the liquidated claim was not strictly proved and the criminal judgment did not apportion liability between the two accused
The respondent's witness confirmed no cash was recovered from the claimant's accounts and no artist complained of non-payment. The criminal judgment directed refund without apportioning amounts between the accused, with a civil suit to be filed. The respondent failed to establish the extent of the claimant's individual liability and the sum she should pay, making a joint award unjustified.
House allowance claim and limitation
The admitted Kshs. 469,950.00 was not payable in cash but operated as a set-off against the amounts the claimant was found partly liable for stealing
The respondent argued the claim was time-barred under section 90 but pleaded and admitted Kshs. 469,950.00 on a pro-rata computation. The Court allowed that amount only as a set-off against the stealing liability found in the criminal judgment, balancing justice between the parties.
Legal principles established
#- Pending criminal proceedings do not bar an employer from conducting disciplinary proceedings against an employee
- A liquidated claim must be strictly proved on a balance of probability, and joint criminal liability must be apportioned before individual civil liability can be enforced
- An employer may summarily dismiss under section 44(4)(g) of the Employment Act upon reasonable suspicion that the employee committed a criminal offence against the employer's substantial detriment
Court orders
#- 1.Dismissal of the claimant's claim
- 2.Dismissal of the respondent's counterclaim
- 3.Each party to bear own costs of the claim and counterclaim
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 Act, 2007 over the summary dismissal, terminal dues claim and counterclaim
Relief refused
#Declaration that the summary dismissal was unlawful, unfair and inhuman, and terminal dues of Kshs. 8,380,500.00 with interest and costs
The Court found the procedure fair and the reason for dismissal valid and fair; the summary dismissal was not unfair either in procedure or substance
Claimant's claim for house allowance of Kshs. 469,950.00 as actual payment
The admitted amount was treated only as a set-off against the amounts the claimant was found partly liable for stealing, and not actually payable
Respondent's counterclaim for Kshs. 13,621,299/= plus interest
The liquidated claim was not strictly proved and the respondent failed to establish the claimant's individual liability and the amount she should pay
Costs
Each party to bear own costs of the claim and counterclaim
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.
In conclusion judgment is accordingly entered for the parties for dismissal of both the counterclaim and claim and each party to bear own costs of the proceedings.
The Court finds that the procedure adopted to dismiss the claimant was fair per section 41 and 45 of the Act. Further, the respondent has established that the reason of dismissal was valid and fair per sections 43 and 45 of the Act.
On a balance of probability, the Court finds that the claimant has failed to strictly prove the liquidated claim as per applicable trite law.
Holding her liable to pay all the amount as claimed and as prayed for is found unjustified.
Issues in the judgment
#The judgment inconsistently refers to the claimant's gender, using both 'he/him' and 'she/her' in describing the same person's evidence
The judgment refers to the criminal case inconsistently, citing Criminal Case No. 216 of 2019 in one place and Kibera Criminal Case 550 of 2019 in another for what appears to be the same prosecution
The alleged stolen amount varies between Kshs. 13,856,849.00 and Kshs. 13,621,299/= within the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Macharia v Cellulant Kenya Limited (Cause E6514 of 2020) [2025] KEELRC 466 (KLR)", Case Analysis (2025). Not stated in the judgment (Employment and Labour Relations Court claim and counterclaim). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/466/eng@2025-02-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.