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ELRCPartially AllowedMemorandum of Claim dated 12th January, 2012, filed 17th January, 2012· [2015] KEELRC 1551 (KLR)

John Kennedy Ongadi v Kenya Power & Lighting Co Limited [2015] KEELRC 1551 (KLR)

Industrial Court (Employment and Labour Relations Court)
25 February 2015
3,524 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya Power was ordered to pay a former engineer over KSh 2.4 million because it fired him without holding a proper disciplinary hearing.

What this practically means

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Executive summary

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The Claimant, employed by the Respondent from 1986 and serving as Acting Chief Engineer, Customer Service, Coast Region, was terminated by letter dated 18th July, 2011 following allegations that he demanded a bribe from a customer (M/s Sapore), fraudulently cancelled two Journal Vouchers, wrongfully disconnected supply at Sai Rock Hotel, and left his station twice on unapproved emergency leave. He sought a declaration that the termination was unlawful and unfair, reinstatement or re-engagement, or in the alternative damages including salary to retirement age, plus costs and interest. The Respondent maintained the termination was for valid reasons and followed a fair procedure. The court framed three issues: valid reason, fair procedure, and remedy. On the evidence it found no valid reason: the alleged loss of Ksh.3,229,045.20 was disproved, the Sai Rock Hotel suit was decided in the Respondent's favour, and the emergency leave absences were reasonably explained, with the court noting a sour relationship between the Claimant and his supervisor. On procedure, the Claimant was never summoned to a disciplinary hearing, and the court held that written representations are not a substitute for a hearing under Section 41 of the Employment Act. The termination was therefore unlawful and unfair. Reinstatement was time-barred under Section 12(3)(vii) of the Employment and Labour Relations Act, more than three years having elapsed. The court awarded ten months' salary (Ksh.2,406,031.90) plus three months' pay in lieu of notice, less Ksh.715,038.18 owed to the Respondent, giving a net award of Ksh.2,414,803.29, with interest at court rates and costs to the Claimant.

Key legal issues

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01

Valid reason for termination

Holding

The termination was not for a valid reason; the Respondent did not lose Ksh.3,229,045.20, the Sai Rock Hotel suit was decided in the Respondent's favour, and the leave explanations were reasonable

Reasoning

The court evaluated the audit allegations and found the claimed loss unsubstantiated, since the customer was credited for amounts paid in excess of what was owed. The Sai Rock Hotel disconnection litigation was decided in the Respondent's favour, vindicating the Claimant. The emergency leave absences were reasonably explained, including a near-fatal accident involving the Claimant's son. Complaints originated from subordinates supported by a supervisor in a sour relationship with the Claimant.

p. 5
02

Fair procedure under Section 41 of the Employment Act

Holding

The termination did not follow a fair procedure because the Claimant was never summoned to a disciplinary hearing

Reasoning

Although the Claimant responded in writing to the various Notices to Show Cause, the Respondent never convened an actual disciplinary hearing where he could be heard and make representations in person. Section 41 mandates explanation of reasons, the opportunity to have a representative present, and a hearing. Written responses do not satisfy this requirement, so the procedure was automatically unfair under Section 45(2)(a) and (c).

p. 5
03

Remedy

Holding

Reinstatement unavailable (lapsed three-year window); compensation of 10 months' salary plus notice pay awarded, less debts owed to the employer

Reasoning

Section 12(3)(vii) of the Employment and Labour Relations Act confines reinstatement to three years from termination, which period had expired. Applying Section 49(4) factors — 25 years of diligent service, 14 years lost to retirement, and the Claimant's debts to the employer — the court awarded 10 months' salary compensation plus three months' pay in lieu of notice, offset by the amounts owed, with interest and costs.

p. 8

Legal principles established

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  • The employer bears the burden of proving valid reasons for termination on a balance of probabilities; failure renders the termination unfair under Section 45
  • Written representations are not a substitute for a disciplinary hearing under Section 41
  • Once the employee shows a prima facie case of unfair termination, the burden shifts to the employer to justify the reasons and procedure

Court orders

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  1. 1.Award of 10 months' salary (Ksh.2,406,031.90) as compensation for unlawful and unfair termination
  2. 2.Payment of three months' salary in lieu of notice (Ksh.721,809.57), giving total award of Ksh.3,127,841.47
  3. 3.Deduction of amounts owed to the Respondent (Ksh.715,038.18), yielding net award of Ksh.2,414,803.29
  4. 4.Interest at court rates from date of Judgment till payment in full
  5. 5.Respondent to pay the costs of the suit
  6. 6.Pension payable upon reaching retirement age

Authorities

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Legislation

  • Employment Act, 2007Section 43(1)
  • Employment Act, 2007Section 45(1), 45(2)(a) and (c)
  • Employment Act, 2007Section 41(1) & (2)
  • Employment Act, 2007Section 47(5)
  • Employment Act, 2007Sections 49 and 50; Section 49(4)
  • Employment and Labour Relations ActSection 12; Section 12(3)(vii)
  • Code of Conduct and Ethics (KPLC)Clause 6(b) and 6(d)
  • Employment Agreement (Claimant)Clause 13
Jurisdiction invoked
Employment and Labour Relations Act, Section 12; Employment Act, 2007 (Sections 41, 43, 45, 47(5), 49, 50)

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, "John Kennedy Ongadi v Kenya Power & Lighting Co Limited [2015] KEELRC 1551 (KLR)", Case Analysis (2015). Memorandum of Claim dated 12th January, 2012, filed 17th January, 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/1551/eng@2015-02-25

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