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Court of AppealDismissedCivil Appeal 453 of 2018· [2022] KECA 859 (KLR)

Kitema v Kenya Power and Lighting Company Limited

Court of Appeal
10 June 2022
KMK. M'InotiSKS. ole KantaiKLDr. K.I. Laibuta
1,632 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed that reinstatement after unfair dismissal is an exceptional remedy, not an automatic right, even when dismissal is unfair.

What this practically means

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Executive summary

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The appellant, Paul Kitema, was employed by Kenya Power and Lighting Company Limited from about 1991 as a clerk. Following allegations of absenteeism and misconduct, and his refusal to accept letters concerning disciplinary issues, his services were terminated by letter dated 27th February 2015, and his internal appeals were dismissed. He sued at the Employment and Labour Relations Court, claiming unfair termination and principally seeking reinstatement, with alternative prayers for compensation, unpaid salary and payment in lieu of notice. Makau, J. found the dismissal substantially unfair and, noting that three years had lapsed since dismissal, declined reinstatement but awarded the appellant salary in lieu of notice, twelve months' compensation (the statutory maximum) and unpaid salary, totalling KSh.1,725,882.50 with costs and interest. The appellant appealed on eleven grounds, contending that reinstatement remained available and should have been ordered, and challenging procedural aspects of the trial. The Court of Appeal (M'Inoti, ole Kantai and Laibuta, JJA) held that reinstatement is discretionary, in the nature of specific performance, and grantable only in exceptional circumstances; that the trial Judge had properly considered the circumstances, including the appellant's poor service record, absenteeism and insubordination; and that, applying Mbogo v Shah, an appellate court will not interfere with discretion unless wrongfully exercised. Finding no merit in any ground, the Court dismissed the appeal with costs to the respondent, affirming the judgment below.

Key legal issues

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01

Whether reinstatement should have been ordered despite the lapse of three years since dismissal

Holding

The trial Judge properly exercised discretion in declining reinstatement; maximum statutory compensation was awarded instead

Reasoning

The Judge considered the circumstances, including the appellant's poor service record, absenteeism and insubordination, found reinstatement unsuitable, and awarded the maximum compensation envisaged by statute. The Court of Appeal found no wrongful exercise of discretion warranting interference.

p. 3
02

Standard for appellate interference with discretionary decisions

Holding

Discretion will not be disturbed unless wrongfully exercised

Reasoning

Relying on Mbogo v Shah, the Court held that an appellate court should not interfere with the exercise of discretion by a trial judge unless it is demonstrated that the discretion was exercised wrongfully, which was not shown here.

p. 3

Legal principles established

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  • The grant of an order of reinstatement is discretionary and in the nature of specific performance, to be granted only in exceptional circumstances
  • An appellate court will not interfere with the exercise of discretion by a lower court unless it is shown to have been wrongfully exercised

Court orders

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  1. 1.Appeal dismissed with costs to the respondent

Authorities

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Legislation

  • Employment ActSection 49

Cases cited (2)

  • Kenya Revenue Authority v James Omondi Were
    [2020] eKLR

    That the grant of an order for reinstatement is discretionary in nature

  • Mbogo v Shah
    [1968] E.A. 93

    That an appellate court should not interfere with the exercise of discretion unless it was wrongfully exercised

On appeal from
Employment and Labour Relations Court of Kenya at Nairobi
ELRC Cause No. 747 of 2015
Jurisdiction invoked
First appeal to the Court of Appeal under the Employment and Labour Relations Court Act / Appellate jurisdiction (not expressly stated in the judgment)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Kitema v Kenya Power and Lighting Company Limited", Case Analysis (2022). Civil Appeal 453 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/859/eng@2022-06-10

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