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ELRCPartially AllowedNot stated in the judgment as provided· [2016] KEELRC 1216 (KLR)

Aggrey Lukorito Wasike v Kenya Power And Lighting Company Limited [2016] KEELRC 1216 (KLR)

Employment and Labour Relations Court
13 May 2016
735 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 reinstated an unfairly dismissed worker with full back pay because his employer had no records proving the theft allegations.

What this practically means

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Executive summary

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The claimant, employed by the respondent and assigned to issue cables to customers, was dismissed on 22.10.2013 on the allegation that he failed to document 300mm of copper cables issued to Dakika Company Contractor at the respondent's Kingongo stores. He was prosecuted for stealing contrary to section 275 of the Penal Code but the prosecution was unsuccessful. The court noted there was no dispute that the claimant received notice and a hearing as envisaged in section 41 of the Employment Act, 2007; the dispute was whether the respondent had a valid reason for the dismissal. On the evidence, the claimant had issued and recorded 1,100 metres of copper wire to the contractor, and the alleged 300 metres was part of that recorded quantity. RW1 testified he had no records, inventory or written documentation showing that any cables were missing or that any discrepancy existed. The court therefore found no valid or genuine reason for the dismissal and held the dismissal unfair under section 43 of the Employment Act, 2007, the unsuccessful prosecution confirming that the allegations were unfounded. As the claimant's position remained vacant and no bar to reinstatement was established, the court entered judgment for the claimant, ordering his reinstatement with effect from 22.10.2013 without a break in service and with full prevailing benefits until retirement or lawful separation, payment of all withheld monthly salaries and allowances from 22.10.2013, and costs of the suit. The judgment was signed, dated and delivered at Nyeri on 13th May 2016 by Byram Ongaya, Judge.

Key legal issues

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01

Validity of the reason for dismissal under section 43 of the Employment Act

Holding

The dismissal was unfair for want of a valid reason; the allegation that the claimant stole 300 metres of copper cables was unsupported by any inventory or written record, and the claimant's unsuccessful prosecution showed the allegations were unfounded.

Reasoning

The claimant had issued 1,100 metres of copper wire to the contractor, all of which was recorded; the alleged 300 metres was part of that recorded quantity. RW1 testified he had no inventory reconciling received and issued cables and no written record showing any discrepancy or missing cables. Notice and hearing under section 41 were not in dispute, so the failure was one of substantive justification under section 43.

p. 2
02

Reinstatement as remedy

Holding

The claimant established a good case for reinstatement with full pay from the date of termination, as his position remained vacant and no bar to reinstatement was established.

Reasoning

It was confirmed at trial that the claimant had not been replaced and his position was still vacant. The court found no established bar to reinstatement and held the claimant entitled to reinstatement without a break in service, with payment of all withheld salaries and allowances from the termination date.

p. 2

Legal principles established

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  • An employer must have a valid and genuine reason for dismissal, established on material before the disciplinary hearing and the court; where the employer has no records establishing the alleged discrepancy, the dismissal is unfair under section 43 of the Employment Act, 2007.

Court orders

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  1. 1.Reinstatement of the claimant in the service of the respondent with effect from 22.10.2013 in the position held before the termination, without a break in service, with full prevailing benefits, until due date of retirement or lawful separation; the claimant to report to the respondent's Managing Director for deployment not later than 18.05.2016 at 9.00am
  2. 2.Consequential to the reinstatement, the respondent to pay the claimant all withheld monthly salaries and allowances from 22.10.2013; the claimant to compute and serve the same within 7 days for recording in court
  3. 3.The respondent to pay the claimant's costs of the suit
Jurisdiction invoked
Employment Act, 2007 (sections 41 and 43)

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, "Aggrey Lukorito Wasike v Kenya Power And Lighting Company Limited [2016] KEELRC 1216 (KLR)", Case Analysis (2016). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1216/eng@2016-05-13

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