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ELRCPartially AllowedCause No 431 of 2020· [2023] KEELRC 1867 (KLR)

Awuor v Kenya Power and Lighting Company (Cause 431 of 2020) [2023] KEELRC 1867 (KLR)

Employment and Labour Relations Court
31 July 2023
3,255 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~13 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The Claimant, a technician employed by the Respondent (Kenya Power) from 2012, was summarily dismissed on July 29, 2019 following disciplinary charges of fraudulently obtaining Kshs. 112,000/- from a customer, participating in irregular processing and installation of 32 prepaid meters, and sharing confidential customer data. He sued for declarations of infringement of Articles 41(1), 47 and 50 of the Constitution, twelve months' salary as compensation, notice pay, seven years' leave pay, gratuity, exemplary damages, interest and costs. The Respondent, though filing a Response, did not avail any witness - its case was closed by the Court in its absence - and filed no submissions. The Court found the disciplinary hearing procedurally flawed: the Claimant was ambushed with an oral notification requiring him to appear the next morning without time to prepare, contrary to section 41 of the Employment Act. It further found that the dismissal letter introduced fresh charges at variance with the show cause letter, evidencing a desperate attempt to terminate without valid reason, contrary to sections 43 and 45 of the Act. The termination was therefore unfair both procedurally and substantively. On remedies, the Court declined the declaratory reliefs as pleaded, exemplary damages, gratuity/service pay, and the seven-year leave claim, holding that the Claimant did not prove entitlement to them. It awarded compensation of five months' salary (Kshs. 881,401/-), one month's wages in lieu of notice (Kshs. 176,280.20), costs of the suit, and interest at court rates from the date of judgment until payment in full. Judgment was delivered at Nairobi on July 31, 2023 by Nzioki Wa Makau J.

Key legal issues

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01

Procedural fairness under section 41 of the Employment Act

Holding

The termination was procedurally unfair because the Claimant was ambushed with an oral notification of the disciplinary hearing without adequate time to prepare

Reasoning

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.

p. 5
02

Substantive fairness under sections 43 and 45 of the Employment Act

Holding

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

Reasoning

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.

p. 6
03

Remedies under section 49(1)(c) of the Employment Act

Holding

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

Reasoning

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.

p. 6

Legal principles established

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  • 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

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  1. 1.Compensation equivalent to 5 months' salary - Kshs. 881,401/-
  2. 2.One month's wages in lieu of notice - Kshs. 176,280.20
  3. 3.Costs of the suit
  4. 4.Interest at court rates on the sums in (a) and (b) from the date of judgment till payment in full

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 41(1), 47, 50 (pleaded); Articles 25(a), 25(c), 27, 43 (pleaded in submissions)
  • Employment Act, 2007Sections 41, 43, 45, 49(1)(c)

Cases cited (9)

  • Kenya Power and Lighting Company Limited v Nathan Karanja Gachoka & another
    [2016] eKLR
  • Walter Ogal Anuro v Teachers Service Commission
    [2013] eKLR
  • Anthony Mkala Chitavi v Malindi Water & Sewerage Company Limited
    [2013] eKLR
  • Alphonce Maghanga Mwachanya v Operation 680 Limited
    [2013] eKLR
  • Samuel Muchiri Gikonyo v Henkel Chemicals (EA) Ltd
    [2014] eKLR
  • Kenya Petroleum Oil Workers Union v Kenya Petroleum Refineries Ltd
    [2013] eKLR
  • Gedo Abdulahi Mohamed v Commissioner of Police & another
    [2015] eKLR
  • Peter Kamwi v Standard Group Limited
    [2016] eKLR
  • GMV v Bank of Africa Kenya Limited
    [2013] eKLR
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

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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, "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.