Edward Aliela Musambayi v Kenya Power And Lighting Company Limited [2013] KEELRC 774 (KLR)
The bottom line
#Kenya Power lost an unfair termination case because it fired an employee using a notice clause after he had been acquitted of theft by a criminal court.
What this practically means
#Executive summary
#Key legal issues
#Constitutionality of clause 13 of the employment agreement
The clause was constitutional and valid in so far as it defined the length of the termination notice rather than a reason for termination; the claimant's prayer was deemed abandoned for lack of submissions.
The claimant advanced no submissions to establish unconstitutionality, so the court treated the averment and corresponding prayer as abandoned. On the merits, the court held the clause valid because it defined the notice period for termination rather than the reason for termination, and thus did not offend the Constitution or the Employment Act.
Unfair labour practice and unfair termination
The termination was an unfair labour practice and unfair: the employer relied on theft allegations decided in the employee's favour by the criminal court, and gave no hearing under section 41 of the Employment Act.
The respondent's pleadings showed theft allegations were the main reason for termination, yet it terminated in disregard of the acquittal under section 210 of the Criminal Procedure Code. As employer, it was bound by that decision and was obliged to accord a hearing under section 41. Using the notice clause to circumvent due process was an unfair labour practice, employment being one of utmost good faith.
Remedies and reinstatement
Reinstatement was refused; the claimant was awarded notice pay, December 2010 gross salary, 64 leave days, retirement benefits, and 6 months' gross pay as compensation.
The respondent opposed reinstatement, asserting the claimant had fallen out of favour. Evaluating the record, the court found no sufficient basis for reinstatement. It instead awarded compensation, taking into account that the claimant was separately entitled to agreed retirement benefits under permanent and pensionable terms.
Legal principles established
#- An employer is bound by the findings of a criminal court in a disciplinary matter arising from the same alleged misconduct and must accord the employee a hearing under section 41 of the Employment Act before termination.
- Invoking a termination notice clause devoid of due process in a case of alleged misconduct constitutes an unfair labour practice.
Court orders
#- 1.A declaration that the termination of the claimant's employment by the respondent was unfair
- 2.The respondent to pay the claimant Kshs.1,336,08.20, plus pay for 64 due leave days as computed by the respondent, and payment for retirement benefits under the agreed Retirement Benefits Scheme
- 3.The respondent to pay the amounts in (b) by 1.12.2013 failing interest to be payable at court rates till full payment
- 4.The respondent to pay costs of the case
- Jurisdiction invoked
- Employment and labour relations jurisdiction under Article 41 of the Constitution and the Employment Act, 2007
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Edward Aliela Musambayi v Kenya Power And Lighting Company Limited [2013] KEELRC 774 (KLR)", Case Analysis (2013). Cause No 115 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/774/eng@2013-09-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.