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ELRCPartially AllowedCause No 1502 of 2010· [2014] KEELRC 1018 (KLR)

Grace Wairimu Watene v Kenya Power and Lighting Company Ltd [2014] KEELRC 1018 (KLR)

Industrial Court of Kenya
29 May 2014
LNLINNET NDOLO
2,174 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled Kenya Power fairly had reason to dismiss an employee over cable theft, but still owed her Kshs. 1.37 million for denying her a proper hearing.

What this practically means

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Executive summary

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The Claimant, employed by the Respondent from 1989 as an Electrical Wire Lady III and later promoted to Inspector III, was summarily dismissed on 28th January 2009 over allegations that she schemed the theft of 1700 metres of aluminium cables from the Respondent's Nairobi South Store, which were sold to a tenderer supplying Kenya Ports Authority, with the Claimant and her business partner allegedly receiving Kshs. 700,000. She claimed notice pay, salary for February to May 2009, twelve months' compensation for unfair termination, a recommendation letter, certificate of service, costs and interest. The court framed three issues: justifiability of the reason for termination, fairness of procedure, and entitlement to reliefs. On reason, the court held the Respondent discharged its burden under Section 43 of the Employment Act on a balance of probability, relying on the Claimant's own admissions that she facilitated her cousin's access to cables; the absence of a criminal charge did not invalidate the dismissal, criminal trial and disciplinary proceedings being distinct processes. On procedure, however, the court found that beyond the show cause letter and the Claimant's response, there was no compliance with Section 41 - no hearing with representation and consideration of explanations - and no hearing under the applicable Collective Bargaining Agreement. The termination was therefore unfair for want of due process. The court awarded 8 months' salary (Kshs. 973,886) in compensation plus 3 ¼ months' notice pay (Kshs. 395,641), totaling Kshs. 1,369,527, with interest at court rates from the date of the award. The claims for salary for February to May 2009 and for leave pay were dismissed for want of proof and pleading respectively. The Claimant also received a certificate of service and costs, the award being subject to statutory deductions.

Key legal issues

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01

Validity of reason for termination

Holding

The Respondent had a valid reason to terminate the Claimant's employment based on her involvement in the theft of cables

Reasoning

Section 43 requires the employer to prove reasons it genuinely believed existed. The court evaluated the Claimant's own statement admitting she asked her business partner to help her cousin access cables, and her partner's statement, and concluded a reasonable employer would terminate on those facts. Acquittal or absence of criminal charge does not bar a valid disciplinary finding.

p. 5
02

Fairness of procedure

Holding

The termination was procedurally unfair for want of a hearing under Section 41 and the CBA

Reasoning

Apart from the show cause letter and the Claimant's response, there was no evidence of compliance with Section 41 - no hearing where explanations were given and considered, no presence of a representative. There was also no evidence of a hearing as envisaged by the applicable Collective Bargaining Agreement, making the dismissal unfair for want of due process.

p. 5
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Remedies for unfair termination

Holding

Claimant awarded 8 months' salary in compensation and notice pay; other claims dismissed

Reasoning

Having found valid reason but unfair procedure, the court exercised discretion under Section 49 to award 8 months' salary as compensation plus 3 ¼ months' notice pay per the CBA. Claims for salary for February to May 2009 and leave pay failed for want of proof and pleading respectively.

p. 5

Legal principles established

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  • A criminal trial and internal disciplinary proceedings are distinct processes with different procedural and standard of proof requirements
  • Under Section 43 of the Employment Act the employer must prove a valid reason for termination on a balance of probability
  • A hearing and notification under Section 41 of the Employment Act is mandatory even in cases of summary dismissal

Court orders

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  1. 1.Award of Kshs. 973,886 being 8 months' salary in compensation for unfair termination
  2. 2.Award of Kshs. 395,641 being 3 ¼ months' salary in lieu of notice
  3. 3.Total award of Kshs. 1,369,527
  4. 4.Claimant entitled to a certificate of service
  5. 5.Respondent to pay costs of the case
  6. 6.Interest at court rates from the date of the award until payment in full
  7. 7.Award subject to statutory deductions in accordance with Section 49(2) of the Employment Act, 2007

Authorities

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Legislation

  • Employment Act, 2007Section 43
  • Employment Act, 2007Section 45(2)
  • Employment Act, 2007Section 41
  • Employment Act, 2007Section 12
  • Employment Act, 2007Section 49(2)

Cases cited (2)

  • David O. Owino Vs Kenya Institute of Special Education
    Industrial Court Cause No 453 of 2012
  • Shankar Saklani Vs DHL Forwarding (K) Limited
    [2012] eKLR
Jurisdiction invoked
Employment Act, 2007 (Industrial Court jurisdiction over employment disputes)

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, "Grace Wairimu Watene v Kenya Power and Lighting Company Ltd [2014] KEELRC 1018 (KLR)", Case Analysis (2014). Cause No 1502 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/1018/eng@2014-05-29

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