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ELRCDismissedCause No. 2010 of 2013· [2016] KEELRC 1201 (KLR)

Kioko Kithome v Kenya Power Lighting Company [2016] KEELRC 1201 (KLR)

Employment and Labour Relations Court of Kenya
6 May 2016
MNMATHEWS N. NDUMA
951 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court confirmed that an employee fired for fraud must prove the dismissal was unfair, and lost because his own statements admitted the misconduct.

What this practically means

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Executive summary

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The plaintiff, employed by the respondent from 31st May 1983 as an Artisan I, was summarily dismissed on 7th March 2008 over allegations of financial fraud at the Electricity House pay office, in which it was alleged he colluded with a temporary employee, Kitonga, to defraud the respondent of about Kshs 400,000 through forged loan forms and vouchers. He sought general damages for harassment, intimidation and prosecution, and reinstatement with full benefits under the collective bargaining agreement. The suit, commenced by plaint in the High Court on 17th March 2010 and later transferred to this court, was determined on pleadings, documentary evidence and written submissions by consent, without oral evidence. The respondent relied on the claimant's own statements, in which he admitted collecting cash on vouchers presented for colleagues and sharing the proceeds with Kitonga. The court held that the plaintiff bore the onus of proving unlawful and malicious dismissal and failed to discharge it, producing nothing beyond a bare denial, while the respondent's documentary evidence established that the dismissal was for a valid reason and that a fair procedure - suspension, a show cause notice, 72 hours to respond and consideration of his explanation - was followed. The suit was dismissed with costs to the respondent.

Key legal issues

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01

Burden of proof in unlawful dismissal claim

Holding

The plaintiff failed to discharge the onus of proving unlawful and malicious dismissal

Reasoning

Parties dispensed with oral evidence and relied on pleadings and documents. The plaintiff produced no documentary evidence exonerating himself beyond a bare denial, while the respondent produced the claimant's own statements containing admissions of collecting money from forged vouchers. The respondent therefore justified the dismissal on both reason and procedure.

p. 2
02

Validity of summary dismissal for fraud

Holding

Summary dismissal for colluding to defraud the respondent of about Kshs 400,000 was lawful

Reasoning

The claimant admitted in his recorded statement and written response to the show cause notice that he collected cash on forged vouchers and shared the proceeds with Kitonga. He was suspended, issued a show cause notice, given 72 hours to respond, and dismissed after consideration of his explanation, satisfying both valid reason and fair procedure.

p. 2

Legal principles established

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  • The employee bears the onus of proving that dismissal was unlawful and malicious

Court orders

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  1. 1.Plaintiff's case dismissed with costs to the respondent
Jurisdiction invoked
Transfer of suit from the High Court to the Employment and Labour Relations Court

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, "Kioko Kithome v Kenya Power Lighting Company [2016] KEELRC 1201 (KLR)", Case Analysis (2016). Cause No. 2010 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1201/eng@2016-05-06

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