Introduction
Must an employer put workplace discipline on hold until the criminal process runs its course? Kenyan courts have consistently held that criminal proceedings and internal disciplinary processes are distinct, independent, and governed by different legal standards. As a result, an acquittal in a criminal case does not automatically shield an employee from disciplinary action, just as the pendency of criminal proceedings does not bar an employer from instituting internal disciplinary measures.
This principle was recently reaffirmed in Ogola v Bamburi Cement PLC [2026] KEELRC 1294 (KLR), where the Employment and Labour Relations Court held that an employer could lawfully summarily dismiss an employee for gross misconduct despite the Director of Public Prosecutions declining to institute criminal charges.
Recent Jurisprudence – The Ogola Case
In the Ogola (supra), the claimant, an electrical technician employed by Bamburi Cement PLC, was found leaving the employer’s premises with electronic spare parts allegedly belonging to the company. Although police investigations did not culminate in prosecution, the employer conducted internal disciplinary proceedings and summarily dismissed him for breach of trust and gross misconduct. The claimant argued that since he had not been charged criminally, the dismissal was unfair.
The Court rejected this argument and emphasised that employment discipline is separate from criminal justice. The Court held that under sections 41, 43, and 44 of the Employment Act, an employer only needs to demonstrate that it genuinely believed, on reasonable grounds, that the employee committed misconduct warranting dismissal.
Judicial Precedent
The foundation of this doctrine in Kenyan jurisprudence can be traced to James Mugera Igati v Public Service Commission of Kenya [2014] KEELRC 735 (KLR). In that decision, the Court categorically stated that there is nothing in the Employment Act or Public Service Commission Regulations tying disciplinary proceedings to criminal proceedings arising from the same facts. The Court distinguished the two processes by observing that disciplinary proceedings are private employment processes intended to protect the employer’s operational integrity, while criminal proceedings are public processes aimed at protecting society and maintaining public order.
The Court of Appeal subsequently endorsed this reasoning in Attorney General & another v Andrew Maina Githinji & another [2016] KECA 817 (KLR). The Court held that an acquittal in a criminal case does not prevent an employer from instituting disciplinary proceedings based on the same facts. The Court emphasised that the standards of proof are fundamentally different; criminal liability must be established beyond reasonable doubt, whereas employment discipline is determined on a balance of probabilities.
This distinction is critical. Criminal courts are concerned with whether an accused person committed an offence punishable by law, while employers are concerned with whether an employee’s conduct has destroyed trust, breached workplace rules, or undermined the employment relationship. An employee may therefore be acquitted because the prosecution failed to meet the high criminal threshold, yet the employer may still possess sufficient evidence to justify disciplinary sanctions.
The Court of Appeal reiterated this principle in Judicial Service Commission & another v Nyagol [2024] KECA 198 (KLR), where it held that criminal proceedings and disciplinary proceedings are founded on entirely different legal regimes. The Court observed that disciplinary proceedings arise from the contract of employment and internal workplace regulations, while criminal proceedings arise from statutory criminal law. The Court of Appeal further clarified that neither of the two processes binds the other. Thus, an acquittal does not automatically invalidate disciplinary action, nor does a criminal conviction automatically justify dismissal without compliance with section 41 of the Employment Act. Employers must still observe procedural fairness, including issuing a notice to show cause and accord the employee an opportunity to be heard.
Kenyan courts have also cautioned employers against indefinitely suspending disciplinary proceedings merely because criminal investigations are pending. In Teachers Service Commission v Makokha [2023] KEELRC 2518 (KLR), the Court rejected the proposition that disciplinary proceedings should automatically await the conclusion of criminal trials. The Court reasoned that employers cannot hold employees in disciplinary limbo indefinitely due to slow-moving criminal processes. This position reflects practical workplace realities. Criminal investigations and prosecutions in Kenya may take years to conclude. Requiring employers to await criminal outcomes before taking action would paralyse workplace discipline and undermine operational integrity, particularly in cases involving dishonesty, theft, fraud, or breach of trust.
The doctrine is especially significant in cases involving breach of trust. In Bamburi Cement Limited v William Kilonzi [2016] KECA 546 (KLR), cited extensively in Ogola (supra), the Court of Appeal held that the essential question is whether the employer had reasonable and sufficient grounds to suspect misconduct resulting in a breakdown of trust and confidence in the employment relationship. The Court stated that dishonesty or misconduct need not be proved to the criminal standard for dismissal to be justified.
Conclusion
The overarching lesson from Kenyan jurisprudence is therefore balanced. Employers are not required to await criminal prosecution before disciplining employees. However, employers must still comply fully with sections 41, 43, and 45 of the Employment Act by ensuring substantive justification and procedural fairness.
Ultimately, the Kenyan courts have developed a coherent and commercially practical doctrine: criminal law protects public order, while disciplinary processes protect workplace integrity. Although the two may arise from the same facts, they serve different objectives, apply different standards of proof, and operate independently. For employers, the message is clear, disciplinary action need not await the outcome of the criminal process, provided the requirements of fairness under employment law are met.
Download the Alert here.
