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ELRCDismissedNot stated in the judgment· [2021] KEELRC 2174 (KLR)

Bartholomew Mutua Kimanzi v Kenya Power and Lighting Company Limited [2021] KEELRC 2174 (KLR)

Employment and Labour Relations Court
22 January 2021
3,472 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~14 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court upheld a worker's dismissal for a fraudulent hospital bill, confirming employers can fire on reasonable suspicion of fraud.

What this practically means

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Executive summary

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The Claimant, employed by the Respondent since 11 September 1987 as a General Worker Grade II with medical cover for his dependants, was summarily dismissed by letter dated 3 January 2014 on the ground that he colluded with Mwingi Baraka Nursing Home to defraud the employer of Kshs. 237,411 through a fraudulent bill for the alleged admission, operation and blood transfusion of his daughter in December 2012. He sought a declaration that the termination was wrongful, maximum compensation of Kshs. 1,093,008, costs and interest. The Respondent defended the dismissal as grounded on a valid reason of gross misconduct and a fair procedure, relying on an investigations report showing no admission or treatment records, lack of hospital capacity for the alleged procedures, a discharge summary signed by a clerk, and six other similar fraudulent claims. The court framed three issues: validity of the reason, fairness of the procedure, and reliefs. It found that the Respondent proved on a balance of probability that the Claimant was involved in a conspiracy to defraud, since the Claimant failed to call his wife, daughter or hospital staff to corroborate the treatment; under section 44(4)(g) reasonable and sufficient grounds of suspicion suffice. On procedure, the Claimant received a show cause letter, responded in writing, was heard with union representation, and was paid terminal dues, satisfying section 41. The court declined to declare the dismissal wrongful, held the Claimant not entitled to compensation, dismissed the suit in its entirety, and ordered each party to bear its own costs. Judgment was delivered online on 22 January 2021 pursuant to Covid-19 directives.

Key legal issues

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01

Whether the reason for dismissal (conspiracy to defraud the employer of Kshs. 237,411 through the hospital bill) was valid

Holding

The Respondent proved on a balance of probability that the Claimant was involved in a conspiracy to defraud; the reason was valid and fair under sections 43(1) and 45(2)

Reasoning

The investigation revealed no treatment or admission records, no hospital capacity for the alleged operation and blood transfusion, and a discharge summary signed by a clerk rather than a doctor. The Claimant, who bore the evidential burden to exonerate himself, failed to call his wife, daughter or the hospital staff. The employer only needed reasonable and sufficient grounds for suspicion under section 44(4)(g).

p. 4
02

Whether the procedure followed before dismissal was fair under section 41 of the Employment Act

Holding

The procedure was fair: show cause letter issued, response received, oral hearing held with union representation, reasons stated in termination letter and terminal dues paid

Reasoning

Section 41 requires the employer to explain the reasons for contemplated termination and hear the employee's representations with a chosen companion. The Claimant was served with a show cause letter and responded in writing, attended an oral hearing accompanied by his union branch chairman, defended himself, and received a termination letter stating the reasons. The court found the CBA and company disciplinary procedure were complied with.

p. 4
03

Whether the Claimant was entitled to the reliefs sought

Holding

Reliefs refused; suit dismissed in its entirety with each party bearing own costs

Reasoning

Since the reason for dismissal was valid and the procedure fair, the court declined to declare the dismissal wrongful or award compensation under section 49 of the Employment Act. The declaratory relief, maximum compensation of Kshs. 1,093,008, costs and interest were all refused.

p. 4

Legal principles established

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  • The employer must prove that the reason for termination was valid and fair for the termination to pass the test of substantive fairness; failure renders it unfair under section 45 of the Employment Act
  • Under section 44(4)(g) of the Employment Act, it is sufficient if the employer has reasonable and sufficient grounds to suspect the employee has committed a criminal offence against it
  • An employee who fails to avail key witnesses (wife, daughter and hospital staff) to corroborate the alleged treatment may fail to exonerate himself

Court orders

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  1. 1.Declaration that the dismissal was wrongful is declined
  2. 2.Claimant is not entitled to compensation for unfair termination
  3. 3.The suit is dismissed in its entirety
  4. 4.Each party to bear its own costs

Authorities

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Legislation

  • Employment Actsection 45
  • Employment Actsection 47(5)
  • Employment Actsection 44(4)
  • Employment Actsection 43
  • Employment Actsection 41(1) and (2)
  • Employment Actsection 42(1)
  • Employment Actsection 49
  • Employment and Labour Relations Court (Procedure) RulesRule 28(3)

Cases cited (7)

  • Fredrick Kariuki Kaniaru v. Bank of India
    [2015] eKLR
  • Pithon Mwangi Njoroge v. Cooperative Bank of Kenya
    ELRC 1817 of 2011
  • Kennedy Maina Mirera v. Barclays Bank of Kenya Limited
    [2018] eKLR
  • Stephen Okumu Ongaro v. Casurina Nomad Limited
    [2019] eKLR
  • Kenya Plantation and Agricultural Workers Union v. Del Monte (K) Limited
    [2018] eKLR
  • Antony Mkala Chivati v. Malindi Water & Sewarage Co. Limited
    [2013] eKLR
  • Justus Mukulu Muasya v. Wells Fargo Ltd.
    [2018] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act (sections 41, 43, 44, 45, 47(5), 49); not expressly stated by constitutional provision

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, "Bartholomew Mutua Kimanzi v Kenya Power and Lighting Company Limited [2021] KEELRC 2174 (KLR)", Case Analysis (2021). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/2174/eng@2021-01-22

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