Edward Okemwa v Kikuyu Water Company Limited [2015] KEELRC 125 (KLR)

The Court examined the warning letter of 30/11/2012 and the Staff and Welfare Committee findings: although the items were removed from stores without proper authorisation, they were returned, and the Claimant was only warned and sent on compulsory leave. The alleged misconduct did not match any of the Section 44(4) grounds, including suspected criminal offence to the employer's detriment. The Court therefore found no valid reason to warrant summary dismissal.

The Staff and Welfare Committee had recommended only a warning and compulsory leave pending ratification by the full board. The Adhoc Committee recommended dismissal subject to the full board's decision, but the full board never met to deliberate before the dismissal on 25/3/2013. The Court found the delegation of the board's powers to a small Adhoc Committee irregular, and noted the Claimant was never subjected to a disciplinary hearing as envisaged by Section 41 of the Employment Act.

Section 45 places the burden on the employer to prove validity of the reason, its fairness in relation to conduct, capacity or compatibility or operational requirements, and procedural fairness. The Respondent failed on proof of reasons and procedure: board minutes recommending dismissal were never produced, and the process displayed internal reversals and delegation, indicating the dismissal was predetermined rather than procedurally fair.

Having found unfair termination, the Court invoked its remedies jurisdiction, awarding notice pay of KShs 68,000 and the maximum twelve months' compensation of KShs 816,000. Reinstatement was declined because relations between the Claimant and the Managing Director had broken down and reinstatement would be impracticable given the size and capacity of the organisation.