Nyakongo v Kenya Forestry Research Institute (KEFRI) (Cause E018 of 2024) [2025] KEELRC 653 (KLR)
The bottom line
#A Kenyan employer can fire an employee even while criminal charges are pending, but skipping proper disciplinary procedure made this dismissal unfair.
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 respondent could undertake disciplinary proceedings against the claimant during the pendency of the criminal case
- 2.Whether termination of the claimant's employment by the respondent was unfair
- 3.Whether the claimant is entitled to the reliefs sought
Key legal issues
#Concurrent disciplinary and criminal proceedings
The disciplinary process is not tied to the criminal process; an employer need not await the outcome of criminal proceedings based on the same facts, and an acquittal does not bind the employer
The court held that internal disciplinary proceedings are a private process between employer and employee aimed at protecting the business, while a criminal trial is a public process by the state. The two processes are independent with different standards of proof, and no provision of the Employment Act or PSC Regulations requires an employer to follow criminal investigations, findings or court decisions. Here the respondent's internal audit and interdiction preceded the charge by over a year.
Substantive justification for termination
The respondent demonstrated on a balance of probabilities that it genuinely believed the claimant was guilty of gross misconduct, justifying summary dismissal under Section 44(4) of the Employment Act
An internal audit report implicated the claimant in forging the ARD's signature on payment vouchers, irregular payment of DSA using duplicate work tickets, and improper custody of the fuel card. Applying Section 43 and the range of reasonable responses test, the court found a reasonable employer could dismiss on those facts; the criminal standard did not apply to the employer's determination.
Procedural fairness of termination
Termination was procedurally unfair: no notice to show cause, no proof of service of the hearing invitation, deficient minutes, and no proper handling of the appeal
The court found the respondent failed to show service of the hearing notice (the copy bore no acknowledgment), that no notice to show cause was proved, that the minutes of the disciplinary meeting lacked essential details, and that the Board dealt with a reinstatement request rather than the appeal, over a year after dismissal. Section 41 compliance is mandatory and Section 45(4) and (5) require justice and equity including proper handling of appeals.
Appropriate reliefs and compensation
Reinstatement and most monetary claims declined; compensation limited to three months' gross salary under Section 49, plus commuter allowance for days reported to office during interdiction
Reinstatement was impracticable given the claimant's contribution to the separation and lack of evidence of a vacant position. Anticipatory earnings claims (salary, house allowance, leave pay to 2030) were rejected. Compensation was fixed at three months' gross salary because although the claimant served about 32 years, he substantially contributed to his dismissal by his conduct and refusal to provide a specimen signature or clear.
Legal principles established
#- An employer may institute and conclude disciplinary proceedings against an employee during the pendency of a criminal case based on similar charges; the acquittal does not bind the employer's disciplinary process
- The standard of proof in employer disciplinary proceedings is on a balance of probability, not beyond reasonable doubt, testing reasons the employer genuinely believed to exist
- The range of reasonable responses test governs whether a dismissal is fair
- A notice to show cause and actual service of the disciplinary hearing notice are essential to procedural fairness under Section 41 of the Employment Act
Court orders
#- 1.Declaration that termination of the claimant's employment by the respondent was unfair for want of procedural propriety
- 2.Commuter allowance for the days he reported to the office during interdiction; respondent shall compute and pay
- 3.Equivalent of three months gross salary, Kshs.277,188.00
- 4.Claimant awarded 50% of the costs of the suit
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 Employment Act (specific enabling provision not quoted in judgment)
Relief refused
#Reinstatement
Not practicable; claimant contributed to the separation, declined to provide a specimen signature, gave no evidence the position exists and is vacant, and no exceptional circumstance displacing the rule against specific performance of personal service contracts
Unpaid half salary and salary to retirement (Kshs.845,802.00 and Kshs.10,981,592.00)
Claim for unearned, anticipatory earnings with no anchorage in law
Leave pay allowance from 21.08.2020 to 04.04.2030 (Kshs.60,000.00)
Claim lacks particulars as to the nature, days, years or rate of leave pay claimed
House allowance from dismissal till retirement (Kshs.1,592,600.00)
Patently unsustainable anticipatory earnings with no legal or factual justification
Commuter allowance for the whole period of interdiction (Kshs.600,000.00)
Allowance not payable where claimant was not commuting; only payable for days he reported to the office during interdiction
Reasonable damages for unlawful termination
No action in damages lies for termination of a contract of employment; compensation governed by Section 49 of the Employment Act, and only three months' gross salary awarded
Retirement benefits
Respondent operated a contributory pension scheme administered separately; claimant to pursue the scheme administrator
Reasonable severance pay
No particulars provided and severance pay is only payable in redundancy, not summary dismissal
Costs
The claimant is awarded 50% of the costs of the suit
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.
nothing prevents an employer from instituting disciplinary proceedings against an employee during the pendency of a criminal case based on similar charges
acquittal in a criminal case does not automatically render an employee immune to disciplinary action by an employer
In sum, it is the finding of the court that the respondent has failed to prove on a preponderance of probabilities that the termination of the claimant's employment was procedurally fair
a. Declaration that termination of the claimant's employment by the respondent was unfair for want of procedural propriety.
c. Equivalent of three months gross salary, Kshs.277,188.00
d. In the circumstances the claimant is awarded 50% of the costs of the suit.
A notice to show cause is essential as it notifies the employee the charges against him or her and accords the employee time and facilities to prepare a response
Issues in the judgment
#Name of the respondent employer is never stated in the judgment; parties are referred to only as claimant and respondent
Claimant's name appears inconsistently as 'Seth Nyakango' and 'Seth Nyakangi'
Date of the hearing notice is inconsistently given as 23rd February 2020 in the respondent's evidence and 23rd February 2002 in the analysis
DK Njagi Marete V Teachers Service Commission citation year is misprinted as [202] eKLR
Case title of James Mugera Igati cited with conflicting years [2014] and [2015] eKLR
Judgment bears the word 'DRAFT' at its foot
Relief prayers contain typographical dates extending to '4.4.30' and '4.4.20230'
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nyakongo v Kenya Forestry Research Institute (KEFRI) (Cause E018 of 2024) [2025] KEELRC 653 (KLR)", Case Analysis (2025). Not stated in judgment (memorandum of claim filed 22nd March 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/653/eng@2025-03-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.