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ELRCPartially AllowedCause No 45 of 2014· [2015] KEELRC 1444 (KLR)

Daniel Maina Wanyoike v Kenya Power & Lighting Co. Ltd [2015] KEELRC 1444 (KLR)

Employment and Labour Relations Court
20 February 2015
RSRadido Stephen
1,696 words in judgment
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The bottom line

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What this practically means

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Executive summary

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The Claimant, employed by Kenya Power & Lighting Co. Ltd from 1986 and risen to Artisan 1, was terminated on 8 January 2010 following two fatal workplace accidents at Naivasha in March and November 2009, after show cause letters, a disciplinary hearing, and unsuccessful internal appeals and a trade dispute conciliation. He sued claiming unfair termination and denial of termination benefits. The Respondent filed a Statement of Response through the Federation of Kenya Employers but did not attend the hearing, which proceeded ex parte on 27 November 2014 after the court confirmed the date was fixed by consent. The Court, Radido J, identified two issues: whether the termination was fair and what relief was appropriate. On procedure, the show cause letter, the Claimant's response, the hearing notice with the right to be accompanied, and his attendance satisfied section 41 of the Employment Act, 2007, so the termination was procedurally fair. On substance, sections 43 and 45 impose on the employer the burden of proving the reasons for termination and their validity and fairness; the Respondent did not appear to discharge that onerous burden, and the Claimant's unchallenged testimony that he followed safety procedures and acted on instructions from the Controller was accepted. The termination was therefore substantively unfair. The Court awarded 6 months' gross wages, Kshs 871,446/-, as compensation under section 49, weighing his 24 years of service. Lost income, service pay (barred by section 35(5) and (6) given NSSF and pension contributions), incorporeal loss and loss of earning capacity were declined for want of evidential, contractual or statutory basis. The Claimant received costs of the Cause.

Key legal issues

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01

Procedural fairness of termination

Holding

Termination was procedurally fair; show cause, hearing notice and right to be accompanied complied with section 41 of the Employment Act, 2007

Reasoning

The Claimant was issued a show cause letter stating the allegations, responded to it, was notified of a hearing with the right to be accompanied by a colleague, and attended the hearing as scheduled. The Court was satisfied this met the section 41 requirements, and so the process leading to termination was fair.

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02

Substantive fairness of termination

Holding

Termination was substantively unfair because the employer failed to prove valid and fair reasons

Reasoning

Sections 43 and 45 of the Employment Act place on the employer the burden of proving reasons for termination and that they are valid and fair. The Respondent filed a Statement of Response but did not attend the hearing to discharge that burden. The Claimant's unchallenged testimony denied negligence and asserted he followed safety procedures and took instructions from the Controller.

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Remedies for unfair termination

Holding

6 months' gross wages (Kshs 871,446/-) awarded under section 49 based mainly on 24 years of service; other heads declined for want of basis

Reasoning

Compensation of up to 12 months' gross wages is a primary remedy under section 49, exercised discretely per section 49(4) factors. The Claimant served 24 years, justifying an award of 6 months' gross wages at Kshs 145,241.96 per month. Service pay was barred by section 35(5) and (6) given NSSF and pension contributions; other heads lacked foundation.

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Legal principles established

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  • An employer bears a statutory burden to prove reasons for termination and their validity and fairness; failure to attend hearing to discharge that burden renders unchallenged testimony acceptable and termination substantively unfair.
  • Where a party fails to appear at hearing, the other side's unchallenged oral testimony will be accepted.

Court orders

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  1. 1.Declaration implied by findings that the termination was procedurally fair but substantively unfair
  2. 2.Respondent to pay the Claimant 6 months gross wages as compensation, Kshs 871,446/-
  3. 3.All other heads of claim dismissed
  4. 4.Claimant to have costs of the Cause

Authorities

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Legislation

  • Employment Act, 2007section 41
  • Employment Act, 2007section 43
  • Employment Act, 2007section 45
  • Employment Act, 2007section 49(4)
  • Employment Act, 2007section 35(5) and (6)
  • Evidence Actreferred to extensively by the Claimant (not applied strictly)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (dispute arising from termination of employment)

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, "Daniel Maina Wanyoike v Kenya Power & Lighting Co. Ltd [2015] KEELRC 1444 (KLR)", Case Analysis (2015). Cause No 45 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/1444/eng@2015-02-20

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