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ELRCPartially AllowedCause No. 301 of 2012· [2018] KEELRC 941 (KLR)

Alexander Kasina Mukala v Kenya Power and Lighting Company [2018] KEELRC 941 (KLR)

Employment and Labour Relations Court of Kenya
9 October 2018
3,576 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 employee six months' salary because he was dismissed without a fair hearing, despite having a valid reason to fire him.

What this practically means

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Executive summary

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The Claimant, employed by the Respondent from 1979 and rising to Senior Foreman at Embu Depot, was terminated by letter dated 15th May 2008 on allegations of gross misconduct relating to an irregular construction job (Ref. No. E25202006090152), including erroneous design, committing company resources to a contractor's job and negligence. The claim was originally filed in the High Court in 2008 (HCCC No. 521 of 2008) and transferred to this Court, registered as Cause No. 301 of 2012. The Claimant sought damages for unfair termination totalling Kshs. 11,507,616, being twelve months' gross salary and eight years' loss of future earnings. The Respondent maintained the termination was justified for gross misconduct and that the Claimant was afforded a right of reply and paid all dues, including one month's salary in lieu of notice. The Court framed three issues: the applicable statute, procedural fairness, and entitlement to relief. It held the repealed Employment Act Cap 226 applied, as the cause of action predated the Employment Act 2007, which cannot apply retrospectively. However, the Court found no indication the Claimant was accorded an opportunity to appear before a disciplinary panel, holding that a person should not be condemned unheard, and therefore the termination was unfair. Balancing the unfairness against the Respondent's valid reason for termination and payment of dues, the Court awarded six months' salary (Kshs. 637,312) as compensation, plus costs and interest. The claim thus succeeded only partially.

Key legal issues

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01

Applicable statute - repealed Employment Act Cap 226 vs Employment Act 2007

Holding

The repealed Employment Act Cap 226 applied as the cause of action arose on 15th May 2008, before the Employment Act 2007 commenced on 2nd June 2008; the 2007 Act cannot apply retrospectively.

Reasoning

The termination letter was dated 15th May 2008 while the Employment Act 2007 commenced on 2nd June 2008. The Court therefore held the repealed Act operative. The repealed Act contained no provision on the right to a hearing before termination, only payment in lieu of notice, so the Claimant's reliance on section 41 of the 2007 Act could not stand. The Court relied on Duncan Kariuki Kinyanjui v Kenya Power & Lighting Company Ltd [2015] eKLR on the same point.

p. 3
02

Whether the termination followed due process and complied with the law

Holding

Although the Respondent had a valid reason and the repealed Act did not statutorily require a hearing, the termination was unfair because the Claimant was not accorded a fair hearing before a disciplinary panel.

Reasoning

The Court noted there was no indication the Claimant was given an opportunity to appear before a disciplinary panel and present his side; he was condemned through the notice to show cause and discipline proceeded in his absence. Applying the rules of natural justice that a person should not be condemned unheard, the Court found the termination unfair. This was notwithstanding the repealed Act's lack of an express hearing requirement and the payment of one month's salary in lieu of notice.

p. 5
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Reliefs entitlement

Holding

The Claimant was awarded six months' salary as compensation for the unfair termination, plus costs and interest, rather than the 12 months' salary and loss of future earnings he sought.

Reasoning

Having found the termination unfair but also that the Respondent had a valid reason to terminate and had paid the Claimant all his dues (including one month's salary in lieu of notice and salary for days worked), the Court exercised discretion to award six months' gross salary as compensation. The special damages claimed of Kshs. 11,507,616 (12 months' salary plus 8 years' loss of future earnings) were not granted in full.

p. 5

Legal principles established

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  • At the time of a cause of action under the repealed Employment Act Cap 226, the Employment Act 2007 cannot be applied retrospectively
  • A termination effected without affording an employee a fair hearing is unfair

Court orders

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  1. 1.Respondent to pay the Claimant six months' salary as compensation for unfair termination, computed as 6 x 106,552 = 637,312
  2. 2.Costs of the suit to the Claimant
  3. 3.Interest on the award
Jurisdiction invoked
Transferred from the High Court (HCCC No. 521 of 2008) to the Employment and Labour Relations Court under Article 162(2) jurisdiction; suit received and registered as ELRC Case No. 301 of 2012

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, "Alexander Kasina Mukala v Kenya Power and Lighting Company [2018] KEELRC 941 (KLR)", Case Analysis (2018). Cause No. 301 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/941/eng@2018-10-09

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