Lessons from Vipingo Beach Limited v Makokha [2025] KEELRC 395 (KLR)
Imagine this: you’re the HR Manager, and one of your employees has just confessed to stealing company property. Your disciplinary policy says, “No dismissal without a hearing,” but you already have a signed confession on your desk. Do you still need to go through the motions of a full disciplinary process?
This is the dilemma that played out in Vipingo Beach Limited v Makokha (2025).
Case Summary
Mr. Shaban Makokha was employed by Vipingo Beach Limited (the Company) as a security officer since 1st October 2019. On 24th September 2022, some water pipes went missing from the estate. On 4th October 2022, Mr. Makokha confessed in writing that he had stolen the pipes and that he received Kshs. 3,000 from the proceeds of sale. He was summarily dismissed on 18th October 2022 on grounds of the admitted theft.
However, the Trial Court held that the dismissal was unfair and unlawful. It awarded Mr. Makokha over Kshs. 1 million, including 12 months’ compensation, notice pay, overtime, a certificate of service, and costs of the suit.
Findings on Appeal
Aggrieved by the decision, the Company appealed to the Employment and Labour Relations Court. Justice Monica Mbaru reviewed the evidence and found that the Trial Court’s determination was flawed and made the following key findings:
- A Disciplinary Hearing is Unnecessary where the Employee Admits Culpability
The learned judge noted that Mr. Makokha had recorded a written confession dated 4th October 2022 which clearly detailed how the pipes were stolen, how they were sold, and how the proceeds were shared with third parties.
She highlighted that theft by an employee amounts to gross misconduct under Section 44(4) of the Employment Act which constitutes a fundamental breach of the employment contract. This gives the employer the right to summarily dismiss the employee.
Once an employee voluntarily admits to such gross misconduct and is called to account for their actions, disciplinary action may be taken at that point. The requirement to conduct a formal disciplinary hearing before dismissing the employee under Section 41(2) of the Employment Act is not mandatory.
The judge found that the Company had even gone further than required by convening a meeting on 12th October 2022 to discuss the issue with Mr. Makokha, which was not necessary in light of the written confession.
- Disciplinary Hearings are Not Criminal Trials
Relying on the Court of Appeal decision in Kenya Revenue Authority v Reuwel Waithaka Gitahi & 2 others [2019] KECA 300 (KLR), the judge also highlighted that the motions of a disciplinary hearing/meeting at the shop floor are not similar to a criminal trial where the allegations must be proved beyond any reasonable doubt. All the employer is called to do is allow the employee to respond, for the employer to determine whether there are any genuine reasons to terminate the employee.
- Other Claims (Overtime and Public Holidays)
The appellate court also found that the trial court erred in awarding overtime. As a security supervisor, Mr. Makokha was not entitled to overtime, as his role was supervisory and salaried.
As for public holidays, the court held that these are specific days that must be clearly particularized by the claimant for the employer to assess in their reply and for the court to verify against the Minister’s official publications. A vague, general claim without particulars cannot suffice.
The Outcome
The Court ultimately allowed the appeal and set aside the lower court’s judgment, and awarded costs to the Company.
What Does This Mean for Employers?
A clear and voluntary confession can justify summary dismissal without the need for a full disciplinary hearing. However, it is still important to ensure that the employee is treated fairly. Ensure that:
- The admission is unequivocal, voluntary, and in writing;
- It is signed and properly documented;
- The process from confession to dismissal is transparent, including issuing the termination letter and settling all final dues.
What Does This Mean for Employees?
Your words matter. A signed confession can, on its own, lead to lawful dismissal. Before signing:
- Understand the content and implications of what you are admitting to;
- Seek clarification or representation if unsure.
Even where dismissal follows a confession, you remain entitled to fair treatment, including:
- Payment of your terminal dues;
- Issuance of a certificate of service.
At HRFLEEK, we help organisations navigate the delicate balance between compliance and fairness in disciplinary processes. This case reminds us that while a confession may simplify the process, employers must still uphold fair labour practices, and employees should fully understand their rights before making any admission. Contact us today to ensure your processes remain fair, compliant, and defensible.
