Oimeke v Kenya Power & Lighting Company Limited (Cause E079 of 2021) [2022] KEELRC 1588 (KLR)
The bottom line
#Kenya Power's cashier was unfairly dismissed after collecting supervisor-assigned welfare funds, and the employer must reinstate him or pay 12 months' salary.
What this practically means
#Executive summary
#Key legal issues
#Procedural fairness of the summary dismissal (bias in the appeal process)
The dismissal procedure under sections 41 and 45 was not shown to be unfair
The claimant alleged that Okoth Khaluoch, involved in preliminary investigations, also heard the appeal. The Court found Okoth was involved in the audit by the respondent's admission, but the disciplinary hearing minutes did not list him as present for management, the appeal minutes were not filed, and no oral testimony established the allegation. The procedure was therefore not shown to be unfair.
Substantive justification of the reasons for termination
The respondent failed to establish and justify the reasons for the dismissal
The respondent called no witness and relied on documents. The audit report relied on was never served on the claimant, and the disciplinary record showed no finding of culpability. The Court accepted that the money received was well-wishers' welfare contributions collected as assigned by the claimant's supervisor, so the reasons for dismissal were not justified under sections 43 and 45.
Remedies for unfair dismissal
Reinstatement with full benefits or, at the respondent's option, maximum 12 months' compensation
The Court found reinstatement practicable given the respondent is a public body and victimisation was not envisaged. However, following its own decision in Paul Nyamai Musau, the Court gave the respondent the last optional say between reinstatement and payment of maximum compensation under sections 49 and 50 of the Employment Act.
The counterclaim for bicycle loan and unremitted sales
The counterclaim was not proved and was dismissed
The claimant's jurisdictional objection was deemed abandoned. The loan documents were not exhibited. Although the dismissal letter mentioned the sums, they were not part of the disciplinary proceedings, and their inclusion there was unfair and irregular; the claimant's silence did not relieve the respondent of its burden of proof under sections 107 and 108 of the Evidence Act.
Legal principles established
#- Where an employee has prayed for and established both reinstatement and maximum compensation, the court may allow the employer the last optional say on whether to reinstate or pay full compensation, without undermining the employee's entitlement to compensation
- An employer bears the burden of proving the reasons for termination under sections 43, 45 and 47(5) of the Employment Act; inclusion of unproved allegations in a summary dismissal letter and the employee's silence do not discharge that burden
- A practice of benevolent welfare contributions at the workplace, if assigned by a supervisor, is an aggravating factor for an employer to later punish the employee for
Court orders
#- 1.Declaration that the termination of the claimant was unfair and wrongful
- 2.Order directing the respondent to reinstate the claimant with effect from February 4, 2020 without a break in service and with full prevailing benefits until retirement or lawful separation, with the option to reinstate by deploying the claimant not later than August 1, 2022
- 3.Respondent directed to pay the claimant all withheld monthly salaries and allowances from February 4, 2020 consequential to reinstatement
- 4.In the alternative to reinstatement (if the respondent opts not to redeploy by August 1, 2022), maximum compensation of Kshs.1,085,889.00 (Kshs.90,490.75 x 12 months) less PAYE, payable by August 1, 2022, failing which interest at court rates from the date of judgment till full payment
- 5.Counterclaim dismissed with costs
- 6.Respondent to pay the claimant's costs of the suit
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (sections 41, 43, 45, 47(5), 49 and 50) in respect of the unfair summary dismissal claim and counterclaim
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Oimeke v Kenya Power & Lighting Company Limited (Cause E079 of 2021) [2022] KEELRC 1588 (KLR)", Case Analysis (2022). Cause not stated on the face of the judgment (Employment Cause, Mombasa). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/1588/eng@2022-06-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.