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Court of AppealPartially AllowedCourt of Appeal at Nyeri, appeal against ELRC Nyeri judgment of 13th May 2016· [2017] KECA 446 (KLR)

Kenya Power & Lighting Company Ltd v Wasike (Civil Appeal 79 of 2016) [2017] KECA 446 (KLR)

Court of Appeal of Kenya
7 June 2017
PWP. N. WakiWKW. KaranjaPKP. O. Kiage
3,049 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal confirmed employers can fire workers for suspected theft based on reasonable belief, and acquittal in criminal court doesn't reverse the dismissal.

What this practically means

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Executive summary

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The Court of Appeal at Nyeri (Waki, Karanja and Kiage, JJA) allowed KPLC's appeal against the Employment and Labour Relations Court's judgment ordering reinstatement of Wasike, a store man terminated on 22nd October 2013 over the suspected attempted theft of 300 metres of copper cable. The court, sitting as a first appeal by way of rehearing under Rule 29 of the Court of Appeal Rules, held that Wasike received a fair disciplinary hearing in substantial compliance with Section 41 of the Employment Act, and that KPLC genuinely and reasonably believed he had attempted theft, satisfying the employer's burden under Section 43. The court stressed that the standard of proof in disciplinary proceedings is the balance of probabilities, following the South African Avril Elizabeth Home decision, and that Wasike's acquittal of the related criminal charge in Nyeri was irrelevant - criminal and disciplinary processes being separate and distinct. The court further found the trial Judge fell into serious error in ordering reinstatement without considering the mandatory factors in Section 49(4), including the common law principle against specific performance of personal service contracts except in very exceptional circumstances, reiterating the Kenya Airways line of authority that reinstatement is discretionary and not automatic. The appeal succeeded; the ELRC judgment and decree were set aside and the memorandum of claim dismissed in its entirety, with each party bearing its own costs.

Key legal issues

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01

Fair hearing before termination

Holding

Wasike was accorded a fair hearing in substantial compliance with Section 41 of the Employment Act

Reasoning

The court found that Wasike was notified of the charge, invited to attend, advised of his right to representation, attended with a union representative, made representations, and was notified of the decision. The minuted and signed disciplinary proceedings confirmed substantial, if not full, compliance with the statutory hearing requirement, so the process was fair.

p. 3
02

Reasons for termination and employer's burden

Holding

KPLC had a reasonable and genuine belief that Wasike attempted to steal cable wire, satisfying Section 43; the trial Judge erred in undertaking a detailed forensic examination of the discrepancy in the cable lengths

Reasoning

Under Section 43 the onus is on the employer to prove reasons for termination, but the test is partly subjective - the employer need only prove reasons it genuinely believed to exist. KPLC had ample and reasonable basis for believing Wasike attempted theft: concealed cables were found leaving the stores and Wasike could not explain the anomaly. Requiring criminal-trial-grade proof from an employer is improper.

p. 4
03

Standard of proof and effect of criminal acquittal

Holding

The disciplinary standard is balance of probabilities; Wasike's acquittal of the criminal charge was irrelevant to the fairness or validity of the termination

Reasoning

Criminal and disciplinary processes are separate and distinct, with different rules and standards of proof. The trial Judge perpetuated the criminal-standard error by relying on the acquittal. Persuaded by Avril Elizabeth Home, the court held that evidence sufficient on a balance of probabilities can establish an employee's complicity even where criminal prosecution fails.

p. 4
04

Reinstatement as a remedy

Holding

The order of reinstatement was a serious error of law because the Judge gave no consideration to the mandatory factors in Section 49(4), including the common law bar on specific performance of personal service contracts except in exceptional circumstances

Reasoning

Reinstatement under Section 49(3)(a) read with Section 50 is discretionary and not automatic. The court must consider the statutory factors, including practicability and the common law principle against specific performance of personal service contracts. The trial Judge's award was not preceded, accompanied or followed by any such consideration, marking the case as lacking exceptional circumstances.

p. 5

Legal principles established

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  • The standard of proof in employer disciplinary proceedings for alleged criminality by an employee is the balance of probabilities, not the criminal standard, and an acquittal in a criminal trial does not bar or invalidate disciplinary action founded on the same facts.
  • An employer need only prove the reasons it genuinely believed to exist for terminating employment, and a court should not require an employer to conduct a forensic examination to the criminal standard before acting.
  • Reinstatement is a discretionary remedy that must be preceded by consideration of the factors in Section 49(4) of the Employment Act and should be ordered only in very exceptional circumstances.
  • Where an employer acts on reasonable cause with scrupulous adherence to due process, orders of reinstatement against it cannot stand.

Court orders

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  1. 1.The appeal succeeds
  2. 2.The judgment and decree of the Employment and Labour Relations Court is set aside
  3. 3.Substituted therefor is an order dismissing the memorandum of claim in its entirety
  4. 4.Each party to bear its own costs

Authorities

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Legislation

  • Employment ActSection 41(1) and (2)
  • Employment ActSection 43
  • Employment ActSection 44(4)
  • Employment ActSections 49(1)(c), 49(2), 49(3)(a), 49(4)(a)-(m)
  • Employment ActSection 50
  • Industrial Court ActSection 12(3)(vii)
  • Court of Appeal RulesRule 29

Cases cited (7)

  • Avril Elizabeth Home For The Mentally Handicapped vs. CCMA & Others
    [2006] 9 BLLR 833 (LC)
  • Kenya Airways Limited vs. Aviation & Allied Workers Union Kenya & 3 Others
    [2014] eKLR
  • Selle vs. Associated Motor Boat Co.
    [1969] EA 123
  • Ephantus Mwangi & Anor vs. Duncan Mwangi Wambugu
    [1982-88] 1 KAR 278
  • Nelson Mwangi Kibe vs. Attorney-General
    [2003] eKLR
  • Attorney-General & Anor vs. Andrew Maina Githinji & Anor
    [2016] eKLR
  • New Zealand Educational Institute vs. Board of Trustees of Auckland Normal Intermediate School
    [1994] 2 ERNZ 414
On appeal from
Employment and Labour Relations Court at Nyeri
Jurisdiction invoked
First appeal to the Court of Appeal under Rule 29 of the Court of Appeal Rules (rehearing jurisdiction)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (8)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Kenya Power & Lighting Company Ltd v Wasike (Civil Appeal 79 of 2016) [2017] KECA 446 (KLR)", Case Analysis (2017). Court of Appeal at Nyeri, appeal against ELRC Nyeri judgment of 13th May 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/446/eng@2017-06-07

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