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ELRCPartially AllowedCause No 71 of 2021· [2022] KEELRC 1140 (KLR)

Musau v Kenya Power & Lighting Company Limited (Cause 71 of 2021) [2022] KEELRC 1140 (KLR)

Employment and Labour Relations Court
13 May 2022
BOByram Ongaya
6,556 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~26 min to read original · ~4 min brief

The bottom line

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Kenya Power was ordered to reinstate a unfairly dismissed manager—or pay him Kshs. 3 million—after firing him for reasons never disclosed in the disciplinary charges.

What this practically means

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Executive summary

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The claimant, employed by the respondent from August 9, 2010 and serving as Feeder Based Business Unit In-charge at Kwale/Ukunda, was summarily dismissed by letter dated August 24, 2020 following a fatal electrocution at Kombani on July 31, 2020, after a danger complaint logged on July 29, 2020 went unattended while he was away at a mandatory training in Mombasa. He challenged the dismissal as procedurally unfair and substantively unjustified, and sought reinstatement or maximum compensation. The court found the parties were in a contract of service and that the dismissal procedure was unfair: the reason in the dismissal letter (failure to create a culture of logging incidences in IMS) was at complete substantive variance with the allegation in the show-cause letter, amounting to a pretended due process contrary to sections 41 and 45(2)(c) of the Employment Act. On substantive justification, the Kombani Fatal Accident Investigation Report blamed a duty officer and identified systemic deficiencies in the respondent's operations, so the respondent failed to establish a valid and fair reason under sections 43 and 45. The claimant's appeal-stage reinvestigation complaints were not established. Considering section 49(4) factors and the Court of Appeal's guidance in KPLC v Wasike, the court found exceptional circumstances for reinstatement within the statutory three-year window, but innovatively gave the respondent a last optional say: reinstatement with deployment by August 1, 2022, or in default payment of maximum 12 months' compensation of Kshs. 3,024,000.00 (less PAYE). The counterclaim of Kshs. 21,194.56 succeeded, recoverable from sums due to the claimant, who was awarded 75% of costs.

Key legal issues

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01

Procedural fairness of the dismissal

Holding

The procedure was unfair because the reason in the dismissal letter was substantively different from the allegation in the show-cause letter, denying the claimant notice and hearing on the real reason

Reasoning

The show-cause letter alleged negligence over a specific danger complaint, but the dismissal letter invoked a new reason of failure to create a culture of inserting incidences in IMS. The court held the disciplinary process was a pretended due process with no continuous chain of relevance between initial allegations and the termination reason, breaching sections 41 and 45(2)(c) and natural justice. Concerns about the appeal reinvestigation were however not established as the report was not exhibited.

p. 5
02

Validity of the reason for dismissal (ss.43 and 45)

Holding

The respondent failed to establish a valid and fair reason; the accident was largely attributable to the respondent's own deficient operational systems and the culpable officer identified in the investigation report was not the claimant

Reasoning

The claimant had travelled for a mandatory training, delegated duties to Raphael Njagi, and the Kombani investigation report blamed a duty officer and identified systemic deficiencies (excessive LV line length, unhealthy fuses, missing LV earths, IMS escalation failure, releasing all supervisors for training) not attributable to the claimant's conduct or capacity.

p. 7
03

Reinstatement versus compensation

Holding

The claimant established exceptional circumstances justifying reinstatement within the three-year window, and alternatively maximum 12 months' compensation

Reasoning

Considering section 49(4) factors and the Court of Appeal guidance in KPLC v Wasike, the court found no bar to practicability of reinstatement in a large public body, and the protection of the claimant's long-invested engineering career amounted to an exceptional circumstance. The court innovatively allowed the employer a last optional say to pay maximum compensation in default of deployment.

p. 10
04

Counterclaim

Holding

The respondent established the counterclaim of Kshs. 21,194.56, recoverable from amounts due to the claimant

Reasoning

The claimant did not challenge the computation of the domestic appliance loan balance; he testified he had not disputed the amount of Kshs. 92,468.73, with set-offs already applied by the respondent.

p. 11

Legal principles established

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  • Termination on a reason not contained in the show-cause letter breaches section 41 of the Employment Act and rules of natural justice, rendering the procedure unfair
  • It is unfair labour practice for an employer to terminate a manager for a subordinate's breach where the manager is entitled to trust those working under him
  • It is unfair to dismiss an employee for losses attributable to the employer's own deficient operational systems and policies
  • Reinstatement requires serious consideration of the section 49(4) factors and is for very exceptional circumstances
  • The court may grant reinstatement with an alternative option for the employer to pay maximum compensation in default

Court orders

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  1. 1.Declaration that the termination of the claimant was unfair and wrongful
  2. 2.Order directing the respondent to reinstate the claimant with effect from August 26, 2020 in the position held before termination without break in service and with full prevailing benefits, until due date of retirement or lawful separation, with deployment not later than August 1, 2022
  3. 3.Respondent to pay all withheld monthly salaries and allowances from 26.08.2020 to the date of deployment
  4. 4.In default of deployment by 01.08.2022, respondent to pay Kshs. 3,024,000.00 (less PAYE) by 01.09.2022, failing which interest at court rates from date of judgment till full payment
  5. 5.Respondent to recover Kshs. 21,194.56 from the payment in order (c) or (d)
  6. 6.Respondent to pay only 75% of the claimant's costs of the entire proceedings

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 10, 47, 50, 41(1), 2(6)
  • Employment Act, 2007Sections 18(4), 27, 28, 36, 41, 43, 45(2)(a),(b),(c), 47(5), 49(1)(c), 49(4)(a)-(m), 50, 51
  • Employment and Labour Relations Court Act, 2011Section 12(3)(vii)
  • Universal Declaration of Human RightsArticle 23(1)
  • ILO Convention C158 (Termination of Employment Convention)Read with Article 2(6) of the Constitution

Cases cited (5)

  • Edward Juma Masakha v National Environment Management Authority
    [2014] eKLR
  • Grace Gacheri Muriithi v Kenya Literature Bureau
    [2012] eKLR
  • Mary Chemweno Kiptui v Kenya Pipeline Company Limited
    [2014] eKLR
  • Kenya Power & Lighting Company Limited v Aggrey Lukorito Wasike
    [2017] eKLR
  • Jadiah M. Mwarania v Kenya Reinsurance Corporation
    [2018] eKLR
Jurisdiction invoked
Employment and Labour Relations Court Act, 2011, section 12 (original employment jurisdiction; s.12(3)(vii) reinstatement power)

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, "Musau v Kenya Power & Lighting Company Limited (Cause 71 of 2021) [2022] KEELRC 1140 (KLR)", Case Analysis (2022). Cause No 71 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/1140/eng@2022-05-13

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