Awuor v Kenya Power and Lighting Company (Cause 431 of 2020) [2023] KEELRC 1867 (KLR)
The bottom line
#Kenya Power's employee won his unfair dismissal case because he got almost no notice of his disciplinary hearing and the dismissal letter changed the charges.
What this practically means
#Executive summary
#Key legal issues
#Procedural fairness under section 41 of the Employment Act
The termination was procedurally unfair because the Claimant was ambushed with an oral notification of the disciplinary hearing without adequate time to prepare
The Claimant's averment, unrebutted as the Respondent called no witness and filed no submissions, was that he was invited to a hearing scheduled for May 21, 2019 which was postponed, then ambushed with a phone call on June 3, 2019 requiring him to appear at Kisumu. He travelled from Mumias without time to prepare and carried no witness or evidence. This fell short of the procedural prerequisites under section 41 of the Employment Act discussed in the authorities relied upon.
Substantive fairness under sections 43 and 45 of the Employment Act
The Respondent did not have a valid and justifiable reason to terminate the Claimant's services; the charges in the dismissal letter varied from those in the show cause letter
The Court observed that the termination letter introduced fresh charges not contained in the Notice to Show Cause, indicating a desperate attempt to terminate without valid reason. The Claimant testified he never received money from the customer, the meter forms named another employee, and the customer's statement never mentioned him. As the Respondent did not avail any witness or file submissions, its case remained mere allegations and the reasons for dismissal were unproven.
Remedies under section 49(1)(c) of the Employment Act
The Claimant was awarded five months' salary as compensation, one month's salary in lieu of notice, costs and interest, but not gratuity, leave pay or exemplary damages
Having found the dismissal unfair, the Court assessed compensation at five months' salary rather than the twelve months sought, holding the Claimant was not within the parameters for exemplary damages beyond the statutory cap, had not proved entitlement to seven years' leave pay, and was not entitled to gratuity or service pay since the termination was not on account of redundancy.
Legal principles established
#- An employer must accord an employee adequate notice and time to prepare for a disciplinary hearing as a component of procedural fairness under section 41 of the Employment Act
- Where the reasons for termination in the dismissal letter introduce fresh charges not in the show cause letter, the employer has no valid and justifiable reason for termination
Court orders
#- 1.Compensation equivalent to 5 months' salary - Kshs. 881,401/-
- 2.One month's wages in lieu of notice - Kshs. 176,280.20
- 3.Costs of the suit
- 4.Interest at court rates on the sums in (a) and (b) from the date of judgment till payment in full
- Jurisdiction invoked
- Employment and labour relations jurisdiction (Employment Act, 2007; Articles 41, 47 and 50 of the Constitution of Kenya 2010 as pleaded)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Awuor v Kenya Power and Lighting Company (Cause 431 of 2020) [2023] KEELRC 1867 (KLR)", Case Analysis (2023). Cause No 431 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1867/eng@2023-07-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.