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ELRCPartially AllowedCause No. 1631 of 2017· [2023] KEELRC 1252 (KLR)

Ayieko v Kenya Power & Lighting Company Ltd (Cause 1631 of 2017) [2023] KEELRC 1252 (KLR)

Employment and Labour Relations Court
22 May 2023
JGJACOB GAKERI
5,208 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~21 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled Kenya Power's firing of an employee unfair because he got under 24 hours' notice of his disciplinary hearing, even though the reason for dismissal was valid.

What this practically means

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Executive summary

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The Claimant, employed by the Respondent from 1989 as an artisan 3, sued over the November 2014 termination of his employment, seeking a declaration that the termination was unlawful, reinstatement or salary till retirement, one year's compensation, accrued benefits, damages and costs. He also claimed compensation for injuries allegedly sustained while installing a meter, asserting the termination was meant to defeat that claim. The Respondent maintained the Claimant was negligent, failed to account for meters he collected and signed for from its stores, and was accorded due process through show-cause notices and a disciplinary hearing. The court framed two issues: whether the termination was fair and whether the Claimant was entitled to the reliefs sought. On substance, the court found the Respondent proved a valid and fair reason on a balance of probabilities: the Claimant admitted collecting meters and could not account for their whereabouts, thereby facilitating illegal connections. On procedure, however, the court found the process unfair: the Claimant received less than 24 hours' notice of the disciplinary hearing, the allegations were not particularised, the Respondent's investigation reports were withheld, the Respondent failed to avail its HR manual, and the minutes did not record his responses. The termination was declared unfair for want of procedural propriety. Reinstatement was refused as time-barred under Section 12(3)(vii); salary till retirement was declined as anticipatory earnings; accrued benefits were declined for want of particulars. The court awarded the equivalent of two months' salary under Section 49(1)(c), a certificate of service, and costs of the claim.

Key legal issues

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01

Whether the Respondent had a valid and fair reason to terminate the Claimant's employment

Holding

The Respondent proved a valid and fair reason on a balance of probabilities - the Claimant collected meters from the store and could not account for how they ended up illegally installed

Reasoning

The Claimant admitted collecting meters and signed for them but had no record of who picked them from his vehicle or where they were installed. He facilitated illegal connections by default or design. Accusations of negligence ran from February to July 2014 and most responses were unsatisfactory. Section 43(2) frames the reason as what the employer genuinely believed at termination, and that threshold was met on a balance of probabilities.

p. 9
02

Whether the disciplinary procedure under Section 41 of the Employment Act was fair

Holding

The procedure was unfair - the Claimant was given less than 24 hours' notice of the hearing, the allegations were not particularised, evidence was not availed, and the minutes did not record his responses

Reasoning

The invitation notice was received on 30th September 2014 for a hearing on 1st October 2014, giving less than 24 hours to prepare a defence and identify a witness. The notice neither particularised the allegations nor disclosed the evidence to be relied on; the investigation reports were withheld from the Claimant; and the minutes made no reference to his responses. The Section 41 procedure is mandatory, and the Respondent also failed to avail its HR manual to show compliance with internal procedures.

p. 10

Legal principles established

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  • For a termination to pass the fairness test it must be substantively justifiable and procedurally fair
  • An employee must be afforded sufficient time and the documents in the employer's possession to prepare a defence to disciplinary charges
  • The reason for termination is what the employer genuinely believed to exist at the time of termination

Court orders

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  1. 1.Declaration that termination of the Claimant's employment was unfair
  2. 2.Equivalent of 2 months salary
  3. 3.Certificate of service
  4. 4.Costs of the claim

Authorities

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Legislation

  • Employment Act, 2007Sections 35, 40, 41, 43, 44, 45, 47(5), 49(1)(c), 49(3)(a), 49(4), 51
  • Employment and Labour Relations Court Act, 2011Section 12(3)(vii)
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B
  • Constitution of KenyaArticles 159(2)(d), 48

Cases cited (17)

  • Geofirey Sadat Otana V Equity Bank Ltd
    (2020) eKLR
  • Co-operative Bank of Kenya Ltd V Banking, Insurance and Finance Union
    (2017) eKLR
  • Muthaiga Country Club V Kudheiha Workers
    (2017) eKLR
  • Linus Barasa Odhiambo V Wells Fargo Ltd
    (2012) eKLR
  • Dairus Kiseu Mwamburi V Co-operative Bank Ltd
    (2021) eKLR
  • Kenya Union of Commercial Foods and Allied Workers V Meru North Farmers Sacco Ltd
    (2013) eKLR
  • Idris Omar Abdi V Garissa Water & Sewerage Co. Ltd
    (2021) eKLR
  • D.K. Njagi Marete V Teachers Service Commission
    (2013) eKLR and (2019) eKLR
  • Kinakie Co-operative Society Ltd V Green Hotel Ltd
    (1988) KLR 242
  • Standard Group Ltd V Jenny Luesby
    (2018) eKLR
  • Richard Andai Ahongo V Kenya Power & Lighting Co. Ltd
    (2022) eKLR
  • Pius Machafu Isindu V Lavington Security Guards Ltd
    (2017) eKLR
  • Walter Ogal Anuro V Teachers Service Commission
    (2013) eKLR
  • Naima Khamis V Oxford University Press (EA) Ltd
    (2017) eKLR
  • Postal Corporation of Kenya V Andrew K. Tanui
    (2019) eKLR
  • Rebecca Ann Maina & 2 others V Jomo Kenyatta University of Agriculture and Technology
    (2014) eKLR
  • Benjamin Mwendwa Nduati & 4 others V East African Portland Cement Company Ltd
    (2016) eKLR
Jurisdiction invoked
Employment and Labour Relations Court Act, Section 12 read with Employment Act, 2007

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, "Ayieko v Kenya Power & Lighting Company Ltd (Cause 1631 of 2017) [2023] KEELRC 1252 (KLR)", Case Analysis (2023). Cause No. 1631 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1252/eng@2023-05-22

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