Lamba v Kenya Electricity Generating Company PLC (Civil Appeal E126 of 2021) [2023] KECA 118 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed KenGen lawfully fired an employee who admitted misusing a company vehicle, even though he couldn't cross-examine witnesses.
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 appellant was denied a fair hearing by not being allowed to cross-examine the witnesses against him at the disciplinary hearing
- 2.Whether section 12(3)(vii) of the Employment and Labour Relations Court Act is unconstitutional and unjust for want of enabling rules on reinstatement claims within 3 years
- 3.Whether there were sufficient grounds to support the termination of the appellant's employment
- 4.Whether the trial court disregarded or failed to give reasons on some of the evidence adduced
- 5.Whether the disciplinary process was procedurally unfair
- 6.Whether the appellant's alleged omission to be supplied with documents before the disciplinary hearing rendered the process unfair
- 7.Whether the appeal could rely on the allegation of fabricated disciplinary committee minutes which was never pleaded
- 8.Whether the trial court erred in relying on the appellant's unsigned further statement
- 9.Whether the appellant was terminated on a charge different from the one in the notice to show cause
- 10.Whether the penalty of termination was disproportionate to the offence
Key legal issues
#Right to cross-examine accusers in disciplinary hearings
The disciplinary process was fair despite no cross-examination; the appellant had admitted the misuse, the admission was never recanted, and no prejudice was shown.
The Employment Act does not expressly require a formal hearing, but Article 47 requires procedural fairness in disciplinary processes. Where an employer calls witnesses, the employee should be allowed to challenge their testimony. However, fairness is contextual: cross-examination is warranted only in contested issues. The appellant admitted using the vehicle for private errands and pleaded for clemency; under Slatterie v Pooley an unexplained admission establishes the fact, so no prejudice arose.
Constitutionality of section 12(3)(vii) of the Employment and Labour Relations Court Act
The challenge failed: the issue was not pleaded before the ELRC, and the Court of Appeal lacks original jurisdiction to determine the constitutional validity of statutes.
Courts may only pronounce judgment on issues flowing from the pleadings. Further, the power to determine the constitutional validity of an Act of Parliament is conferred on the High Court by Article 165(3)(d)(i) of the Constitution; this Court cannot entertain such a challenge at first instance.
Sufficiency of grounds for termination
There were sufficient grounds: the appellant misused the respondent's vehicle for personal errands and admitted it.
Under section 43 of the Employment Act the employer bears the onus to prove the reasons for termination, but the test is partly subjective: the employer need only prove the reasons it genuinely believed to exist. The respondent had ample and reasonable basis to believe the appellant used the vehicle for personal errands, a fact the appellant admitted and for which he sought clemency. The requirement is a balance of probabilities, not criminal-trial proof.
Procedural fairness of the disciplinary process
The process substantially complied with the requirements of fair notice, due process, substantial evidence and proportionality, and was substantially procedurally fair.
The Court set out the requisite elements of procedural fairness (fair notice, prior enforcement, due process, substantial evidence, progressive discipline, proportionality). The investigation, NTSC, detailed reply, timely disciplinary hearing, internal appeal, and reduction of summary dismissal to normal termination demonstrated substantial compliance at every stage. Fairness is contextual per section 41 and Menginya Salim Murgani.
Termination on a charge different from the one in the NTSC
The finding on the transport management policy was supported by the facts and evidence; the variance caused no prejudice and did not invalidate the proceedings.
The NTSC gave a detailed 9-point account of the allegations and the appellant responded to all of them, showing he fully understood the charges. Where facts and evidence disclose an offence other than that charged, the proceedings are not invalidated; technicalities that cause no prejudice cannot defeat justice. Moreover, the appellant received the lesser penalty of normal termination instead of summary dismissal for gross misconduct.
Proportionality of the sanction
The penalty of termination was not disproportionate; the respondent had already shown clemency by reducing summary dismissal to normal termination.
Proportionality assesses whether the sanction was proportional to the misconduct, considering mitigating and extenuating circumstances. The test asks whether no reasonable employer would impose such punishment or whether it is shockingly disproportionate. Misuse of company property is a major offence warranting summary dismissal; considering his years of service and disciplinary record, the respondent substituted normal termination, a lesser penalty.
Alleged fabricated minutes and new grounds on appeal
The fabricated-minutes issue was never pleaded nor considered by the ELRC and the Court declined to consider grounds 21-24.
A party cannot be allowed to mount a new suit on appeal; a court cannot be said to have erred on an issue that was never argued before it. As the allegation of fabricated disciplinary committee minutes was not raised in the Statement of Claim and was not considered by the trial court, it fell outside the permissible scope of the appeal.
Reliance on the appellant's unsigned further statement
No basis to fault the trial court's finding that there was no reason to suggest Captain Kazungu would forge the unsigned statement.
The trial court had the benefit of seeing and hearing the witnesses first hand and was satisfied with the respondent's witnesses' evidence. An appellate court will not interfere with the exercise of judicial discretion unless the judge misdirected himself, arrived at a wrong decision, or was clearly wrong and occasioned injustice; the appellant failed to demonstrate that the finding was capricious or prejudicial.
Legal principles established
#- Where an employer calls witnesses at a disciplinary hearing, the employee should be allowed to challenge their testimony, but whether a fair hearing was given is contextual; cross-examination is only warranted in contested issues, and an unrecanted admission by the employee may render cross-examination unnecessary.
- Disciplinary proceedings are governed by the contextual right to fair administrative action under Article 47 of the Constitution, not the Article 50 fair-hearing right applicable to courts and tribunals.
- An admission by a party is strong evidence of the facts admitted, shifting the burden to the party making the admission to explain it away.
- A court may not determine issues that were not pleaded; parties cannot raise new issues on appeal.
- The Court of Appeal lacks original jurisdiction to determine the constitutional validity of a statutory provision; that mandate vests in the High Court under Article 165(3)(d)(i).
- Under section 43 of the Employment Act, the employer's burden is to prove on a balance of probabilities the reasons it genuinely believed to exist for termination.
- Where facts and evidence adduced at a disciplinary hearing disclose an offence other than the one charged, the proceedings are not invalidated, provided no prejudice is caused; the employee is entitled to the lesser severe penalty.
- A dismissal sanction must be proportionate to the gravity of the offence, assessed contextually against mitigating, extenuating, or aggravating circumstances.
- A first appellate court will not interfere with the exercise of judicial discretion unless the judge misdirected himself and arrived at a wrong decision, or was clearly wrong and occasioned injustice.
Court orders
#- 1.Confirmation of the Judgment of the ELRC
- 2.Dismissal of the appeal with costs to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Employment & Labour Relations Court
- Jurisdiction invoked
- First appellate jurisdiction under Rule 31(1)(a) of the Court of Appeal Rules, 2022
Relief refused
#Reinstatement as administration manager without loss of salary and benefits
The appeal was found to have no merit and the termination was substantively justified and procedurally fair
Re-engagement in any capacity without loss of salary and benefits
Flowing from the dismissal of the appeal against the termination
A declaration that section 12(3)(vii) of the Employment and Labour Relations Court Act is unconstitutional
The issue was not pleaded before the ELRC and the Court of Appeal lacks original jurisdiction to determine constitutional validity of statutes, which vests in the High Court under Article 165(3)(d)(i)
Recommendation for amendment of section 12(3)(vii) of the Employment and Labour Relations Act, 2011
Not granted; the appeal was dismissed in its entirety
Costs
The appeal was dismissed with costs to the respondent (costs of the appeal and in the ELRC).
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.
during disciplinary hearings, where an employer decides to call a witness (es), it is imperative that after their testimony, the employee should be allowed to challenge the testimony.
The disciplinary proceedings are largely governed by the procedural safeguards under Article 47 of the Constitution.
An employer is required to prove on a balance of probabilities that the reasons for termination are those that it genuinely believed to exist.
We find and hold that at all the stages, the proceedings substantially complied with the requirements discussed above. The entire process was substantially procedurally fair.
Technicalities or irregularities which do not cause prejudice, cannot be allowed to defeat the ends of justice.
Punishment must be proportionate to the gravity of the ofiense, taking into account any mitigating, extenuating, or aggravating circumstances.
A party cannot on appeal be allowed to mount a new suit.
Accordingly, we confirm the Judgment of the ELRC and dismiss this appeal with costs to the respondent.
Issues in the judgment
#Internal inconsistency on the date of termination: the letter of termination is dated 19th July, 2018 while the internal appeal is recorded as upholding it on 4th April, 2018, an earlier date
The judgment refers to the trial as having been before the 'High Court' although the suit was filed in the Employment & Labour Relations Court
Multiple typographical errors, e.g. 'With find and hold' and repeated misspelling of 'offence'/'sufficient' as 'ofience'/'suficient', affecting quote accuracy
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (3)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Judicial Service Commission & another v LMN[2025] KESC 53 (KLR)15 Aug 2025
- Juma v Ayuda Ninos De Africa Kenya (Appeal E027 of 2023) [2025] KEELRC 74 (KLR)[2025] KEELRC 74 (KLR)23 Jan 2025applied
- Ng’etich v Kenya Breweries Limited (Cause E829 of 2022) [2024] KEELRC 1177 (KLR)[2024] KEELRC 1177 (KLR)17 May 2024
Cite this brief
#Cite this brief
Caselaw, "Lamba v Kenya Electricity Generating Company PLC (Civil Appeal E126 of 2021) [2023] KECA 118 (KLR)", Case Analysis (2023). Court of Appeal Civil Appeal (Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/118/eng@2023-02-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.