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ELRCPartially AllowedNairobi ELRC Cause No. 1983 of 2017· [2023] KEELRC 2798 (KLR)

Nzoki v Kenya Power & Lighting Co Ltd (Cause 1983 of 2017) [2023] KEELRC 2798 (KLR)

Employment and Labour Relations Court
8 November 2023
7,528 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled that even with valid reasons for dismissal, an employer who withholds key documents during a disciplinary hearing has unfairly terminated the employee.

What this practically means

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Executive summary

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The Claimant, employed by the Respondent from December 1996 and rising to Chief Administrative Officer, was summarily dismissed on 4th July 2017 over his handling of the Rabai Borehole Project, including failure to detect a defective hydrogeological report, procurement of the survey through the contractor, commencement of drilling before WARMA authorization and irregular recommendation of payments. He claimed unfair termination; the Respondent defended the dismissal and counterclaimed for an outstanding loan of Kshs.1,863,810.77. The court first rejected the Respondent's prematurity objection, holding that failure to exhaust an internal appeal does not bar an employee from challenging dismissal in court. On substance, the court found the Respondent proved valid and fair reasons for termination on a balance of probability: the Claimant recommended payments before inspection and his supervision fell below the standard of a diligent supervisor. However, on procedure, the Respondent failed to avail the Claimant the investigation report and, critically, the project file, rendering the hearing procedurally unfair. The court therefore declared the termination unfair but, balancing factors under Section 49 including the Claimant's over 20 years of service, prior warnings, his substantial contribution to the termination and his failure to appeal, awarded notice pay and the equivalent of two months' gross salary. Claims for salary until retirement and punitive/exemplary damages were dismissed. The Counter-claim failed for want of evidence. Judgment was entered for the Claimant with costs and interest from the date of judgment.

Key legal issues

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01

Prematurity of suit for failure to appeal

Holding

Suit not premature; absence of internal appeal does not deny the right to challenge dismissal in court

Reasoning

The court held that termination is terminal and internal appeals are often a mere formality; denying court access to non-appealing employees would deny legally sanctioned remedies. Additionally, the Respondent slept on its rights since 2017 and it would be inequitable to raise exhaustion at this late stage.

p. 7
02

Validity and fairness of reasons for termination

Holding

Respondent proved valid and fair reasons on a balance of probability

Reasoning

The investigation showed the Claimant recommended payments before inspection, drilling commenced before WARMA authorization, and supervision fell below the standard of a diligent supervisor. The employer need only prove reasons it genuinely believed to exist on a balance of probability (band of reasonableness test).

p. 12
03

Procedural fairness

Holding

Procedure was flawed; failure to avail the investigation report and project file vitiated the hearing

Reasoning

Although notices to show cause were issued, written responses given and a hearing held, the Respondent refused to avail the project file and the investigation report, disabling the Claimant from mounting a defence. Fair hearing encompasses access to documentary evidence relied upon by the accuser.

p. 13
04

Appropriate reliefs

Holding

Declaration of unfair termination, one month's notice pay and two months' salary compensation; anticipatory earnings and exemplary damages refused

Reasoning

Given substantive justification but procedural flaw, the court granted notice pay under Section 36 and, considering the Claimant's over 20 years of service, prior warnings, substantial contribution to the termination and failure to appeal, awarded the equivalent of two months' gross salary under Section 49(1)(c).

p. 14

Legal principles established

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  • Failure to exhaust internal appeal mechanisms does not bar an employee from challenging dismissal in court
  • Fair termination requires both substantive justification and procedural fairness
  • Fair hearing includes the right to be supplied with the documents relied upon by the employer
  • Anticipatory earnings to retirement are not recoverable as damages for wrongful termination

Court orders

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  1. 1.Declaration that termination of the Claimant's employment by the Respondent was unfair
  2. 2.One month's salary in lieu of notice
  3. 3.Equivalent of two (2) months' salary as compensation
  4. 4.Costs of the suit to the Claimant
  5. 5.Interest at court rates from date of judgment till payment in full
  6. 6.Counter-claim disallowed with no orders as to costs

Authorities

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Legislation

  • Employment Act, 2007Section 41
  • Employment Act, 2007Section 43
  • Employment Act, 2007Section 43(2)
  • Employment Act, 2007Section 45
  • Employment Act, 2007Section 47(5)
  • Employment Act, 2007Section 36
  • Employment Act, 2007Section 44
  • Employment Act, 2007Section 49(1)(c)
  • Constitution of Kenya, 2010Article 159(2)(d)
  • Constitution of Kenya, 2010Article 48
  • Civil Procedure Act (Chapter 21)Section 1B
  • Civil Procedure RulesOrder 21 Rule 1

Cases cited (23)

  • Geofrey Gikonyo Mathu V Intex Construction Co. Ltd
    (2017) eKLR
  • Judicial Service Commission V Gladys Boss Sholei & another
    (2014) eKLR
  • Communication Commission of Kenya & 5 others V Royal Media Services
  • Rose W. Kiragu V Teachers Service Commission
    (2016) eKLR
  • Corporal Thomas Othoo V National Police Service Commission & 3 others
    (2016) eKLR
  • Ruth Nyasuguta Areimba V Conference Caterers Ltd
    (2021) eKLR
  • Monica Wanza Mbavu V Roofspec & Allied Works Co. Ltd
    (2021) eKLR
  • Janet Nyandiko V Kenya Commercial Bank Ltd
    (2017) eKLR
  • Linus Barasa Odhiambo V Wells Fargo Ltd
  • Standard Group Ltd V Jenny Luesby
    (2018) 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
  • Loice Otieno V Kenya Commercial Bank Ltd
    (2013) eKLR
  • Postal Corporation of Kenya V Andrew K. Tanui
    (2019) eKLR
  • Galgalo Jarso Jillo V Agricultural Finance Corporation
    (2021) eKLR
  • Kenya Revenue Authority V Reuwel Withaka Gitahi & 2 others
    (2019) eKLR
  • British Leyland (UK) Ltd V Swift
    (1981) I.R.L.R 91
  • Engineer Francis N. Gachuri V Energy Regulatory Commission
    (2013) eKLR
  • D.K. Njagi Marete V Teachers Service Commission
    (2020) eKLR
  • Elizabeth Wakanyi Kibe V Telkom Kenya Ltd
    (2014) eKLR
  • Obonyo & another V Municipal Council of Kisumu
    (1971) EA 91
  • Rookes V Barnard
    (1964) AC 1129
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the 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, "Nzoki v Kenya Power & Lighting Co Ltd (Cause 1983 of 2017) [2023] KEELRC 2798 (KLR)", Case Analysis (2023). Nairobi ELRC Cause No. 1983 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2798/eng@2023-11-08

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