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ELRCDismissedStatement of Claim dated 21st September, 2020· [2022] KEELRC 354 (KLR)

Andrew Ombagi v Kenya Power & Lighting Company Ltd [2022] KEELRC 354 (KLR)

Employment and Labour Relations Court
23 March 2022
DMD.K. NJAGI MARETE
2,144 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 upheld Kenya Power's dismissal of an employee for fraud, confirming employees must prove unfair termination and employers only need valid reasons plus fair procedure.

What this practically means

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Executive summary

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The Claimant, employed by the Respondent from 1st July 2007 and last serving as Senior Technician II in the Energy Transmission division, Mt. Kenya Region, was dismissed on 28th May 2020 on allegations of involvement in fraudulent activities and negligence of duty - namely receiving money from security guards from the sale of pilfered conductors and from suppliers of concrete poles for use of the company's tele loggers. He sued for a declaration that the termination was illegal, unfair and inhumane, reinstatement or alternatively compensation of Kshs.2,236,168.62 (one month's notice, 37 days' accumulated leave and twelve months' salary), a certificate of service, costs and interest. The Respondent denied the claim, asserting the dismissal followed an elaborate internal audit and investigation that established the Claimant's culpability. The court framed three issues: legality of the termination, entitlement to relief, and costs. Relying on Sections 43, 45, 47(5) and 41 of the Employment Act and the authorities cited by the Claimant, the court held the Respondent's evidence - including testimony of her witnesses - remained uncontroverted, that the Claimant knew the reasons for dismissal and the procedure complied with Section 41. The Claimant failed to prove unfair termination on a balance of probabilities. The claim was dismissed with costs to the Respondent.

Key legal issues

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01

Whether the termination of the Claimant's employment was illegal, unfair, inhuman and unlawful

Holding

The termination was lawful; the Respondent proved valid reasons (involvement in fraudulent activities and negligence of duty) and complied with fair procedure under Section 41 of the Employment Act

Reasoning

The court found the Respondent's case, narrated through her witnesses Argwings Kodhek and Ann Siyamo, remained uncontroverted. The audit and investigation established the Claimant's culpability. The Claimant knew the reasons for dismissal and the procedure complied with Section 41. He failed to discharge the burden under Section 47(5) of proving unfair termination on a balance of probabilities.

p. 4
02

Whether the Claimant is entitled to the relief sought

Holding

The Claimant is not entitled to any relief; having failed to prove unfair termination, the consequential remedies fall away

Reasoning

The court reasoned that entitlement to the remedies of notice pay, accumulated leave and twelve months' compensation depended on a finding of unlawful termination. That finding having failed, the Claimant became disentitled to all relief sought, including the declaration, reinstatement and compensation.

p. 4
03

Who bears the costs of the claim

Holding

Costs awarded to the Respondent as the successful party

Reasoning

The claim having been dismissed, the ordinary rule that costs follow the event applied, and the court awarded costs to the successful Respondent.

p. 4

Legal principles established

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  • For a termination to pass the fairness test there must be both substantive justification and procedural fairness
  • The burden of proving unfair termination rests on the employee while the burden of justifying the grounds for termination rests on the employer
  • A party who desires a court to give judgment dependent on facts he asserts must prove those facts

Court orders

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  1. 1.Finding that the termination of the Claimant's employment was lawful
  2. 2.Dismissal of the claim
  3. 3.Costs of the claim awarded to the Respondent

Authorities

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Legislation

  • Employment ActSection 43(1)
  • Employment ActSection 45(1)
  • Employment ActSection 44(3)
  • Employment ActSections 41 and 43
  • Employment ActSection 47(5)
  • Evidence ActSection 107(1)

Cases cited (2)

  • Pius Machafu Isindu vs Lavington Security Guards Limited
    (2017) eKLR
  • Walter Ogal Anuro vs Teachers Service Commission
    (2013) eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (first-instance employment claim)

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, "Andrew Ombagi v Kenya Power & Lighting Company Ltd [2022] KEELRC 354 (KLR)", Case Analysis (2022). Statement of Claim dated 21st September, 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/354/eng@2022-03-23

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