Kabeyi v Kenya Electricity Generating Company Limited (Cause 726 of 2015) [2023] KEELRC 182 (KLR)
The bottom line
#Kenya's Employment Court ruled KenGen unfairly fired an engineer without a disciplinary hearing, awarding him 12 months' salary and costs.
What this practically means
#Executive summary
#Key legal issues
#Procedural fairness of termination under Section 41 of the Employment Act
Termination was procedurally flawed; the Claimant was never taken through a disciplinary hearing and was not availed the investigation reports
The Respondent's own Staff Policies and Procedures Manual required serious offences to be referred to the Staff Advisory and Disciplinary Committee. Only technical investigation committees were convened. The Respondent's HR witness conceded there was no evidence the Claimant appeared before the Disciplinary Committee and that no reports were availed to him. An appeal could not substitute for a first hearing, and the Appeals Committee acted unreasonably in concluding the Claimant 'remains dismissed.'
Substantive fairness - validity of the reason for termination under Sections 43 and 45
No valid reason was shown to justify termination on grounds of negligence
The investigation reports blamed systemic failures - faulty fuel transmitters, malfunctioning pumping systems, a partially open storm drain valve under the Chief Engineer's control, and operator error - rather than the Claimant's negligence. His shift colleagues were all reinstated on the basis that the spills were caused by malfunctioning systems. The Court found no evidence of what the Claimant, as Shift Engineer, was supposed to do and did not do.
Remedies for unfair termination
Claimant awarded the equivalent of 12 months' gross salary at Kshs. 181,667 per month, totaling Kshs. 2,180,004, with costs and interest
The Claimant worked about 6 years, held a permanent and pensionable position, did not create the circumstances leading to dismissal, and his colleagues were reinstated. The Court fixed gross monthly salary at Kshs. 181,667, excluding variable callout and shift allowances. Reinstatement was not ordered as it was not sought and years had passed. The 8-months-salary prayer tied to time taken to find alternative employment was declined as an unsupported method.
Legal principles established
#- Every employment wrong ought to be remediable; an employer cannot rely on its own procedural failure to deny an employee relief
- Investigation committees are not a substitute for a disciplinary hearing where the employer's own procedures require one
- An employee cannot appeal without an initial hearing; procedural justice requires a first hearing before any appellate process
- Variable allowances such as callout and shift allowances are excluded from gross pay for purposes of compensation
Court orders
#- 1.It is declared that termination was unfair
- 2.The Respondent shall pay to the Claimant equivalent of 12 months' salary in compensation for unfair termination at Kshs. 2,180,004
- 3.Costs to the Claimant
- 4.Interest granted at court rates, from the date of Judgment, till payment in full
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act (Sections 41, 43, 45) and the Constitution of Kenya
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kabeyi v Kenya Electricity Generating Company Limited (Cause 726 of 2015) [2023] KEELRC 182 (KLR)", Case Analysis (2023). ELRC Cause (Nairobi) - Statement of Claim filed 24th April 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/182/eng@2023-01-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.