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Court of AppealDismissedCivil Appeal No E131 of 2021· [2024] KECA 1036 (KLR)

Nyaga v Kenya Power & Lighting Company Limited (Civil Appeal E131 of 2021) [2024] KECA 1036 (KLR)

Court of Appeal of Kenya
26 April 2024
WKW. KaranjaLKL. KimaruAMA. O. Muchelule
2,311 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed that Kenya Power lawfully fired an employee who authorized an illegal connection, because the company followed fair disciplinary procedure.

What this practically means

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Executive summary

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The appellant, a Senior Technician I employed by Kenya Power and Lighting Company Limited for twenty-four years, was terminated on 24th May 2018 after disciplinary proceedings found he had used company resources to connect power illegally to a customer's premises without payment of the quoted Kshs.521,079, resulting in eighteen concrete poles going missing. The ELRC (D. K. Marete, J.) dismissed his claim for a declaration that the disciplinary process was wrongful, reinstatement, or general damages, holding that disciplinary proceedings are elementary in nature and that the termination followed legal procedure. On first appeal to the Court of Appeal at Nyeri, the appellant contended that no witnesses or documentary evidence were called to prove lawful termination under Section 47(5) of the Employment Act, that he was denied a fair hearing, and that one Bernard Ambaka acted as witness, investigator, prosecutor and judge. The Court, comprising W. Karanja, L. Kimaru and A. O. Muchelule, JJ.A, in a single unanimous judgment, re-evaluated the evidence as required on a first appeal. It found the authorization documents bore the appellant's signature, that he had short-circuited the quotation-and-payment procedure, and that his claim of acting on another's instructions and of a vendetta was unsupported. It held that the show-cause letter, the disciplinary hearing, time to prepare a defence, and the internal appeal process substantially satisfied Section 41 of the Employment Act, 2007. The appeal was dismissed with costs to the respondent.

Key legal issues

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01

Whether the appellant's termination was substantively justified

Holding

Yes - the respondent was justified in concluding that the appellant authorised an illegal power connection contrary to company procedures.

Reasoning

On re-evaluation, the authorization documents bore the appellant's own signature. He was aware of the procedure requiring quotation and payment before connection, but short-circuited it. His claim that he acted on another's instruction was unsupported: he failed to avail that evidence to the disciplinary panel or the internal Appeal Tribunal, which had urged him to give his true side of the story.

p. 4
02

Whether the appellant was accorded a fair hearing before termination

Holding

Yes - the disciplinary process substantially complied with Section 41 of the Employment Act, 2007.

Reasoning

The appellant received a notice to show cause, was given the opportunity to answer the charges before the disciplinary committee, ample time to prepare and present his defence, and access to the respondent's internal appeal process. He chose instead to blame others and allege a vendetta without producing any evidence of it, even before the Appeal Tribunal. The fair-hearing complaint therefore failed.

p. 4

Legal principles established

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  • A first appellate court must re-consider, re-assess and re-evaluate the evidence adduced before the trial court and reach its own independent determination, while making allowance for the fact that it neither saw nor heard the witnesses.
  • Procedural fairness under Section 41 of the Employment Act, 2007 is satisfied where an employee facing disciplinary action is asked to respond to a notice to show cause letter and to attend an oral disciplinary hearing; the employee may not decline to respond and later impeach the process in court.
  • An employer who issues a show-cause notice, affords the employee an opportunity to answer charges before a disciplinary committee, allows time to prepare a defence, and provides an internal appeal process substantially complies with Section 41 of the Employment Act, 2007.

Court orders

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  1. 1.The appeal is dismissed
  2. 2.Costs of the appeal awarded to the respondent

Authorities

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Legislation

  • Employment Act, 2007Section 41
  • Employment Act, 2007Section 47(5)
  • Employment Act, 2007Section 49

Cases cited (2)

  • Kenya Airports Authority vs Kuston (Kenya) Ltd
    [2009] 2EA 212
  • Mary Wagikuyu Komu –v- The Kenya Hospital Association t/a Nairobi Hospital
    [2016] eKLR
On appeal from
Employment and Labour Relations Court
Not stated in the judgment
Jurisdiction invoked
First appellate jurisdiction over the ELRC (the judgment identifies the appeal as 'a first appeal'; no specific constitutional or statutory provision is cited)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Nyaga v Kenya Power & Lighting Company Limited (Civil Appeal E131 of 2021) [2024] KECA 1036 (KLR)", Case Analysis (2024). Civil Appeal No E131 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1036/eng@2024-04-26

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