Marete v Kenya Power & Lighting Company Limited (Employment and Labour Relations Cause 1205 of 2018) [2023] KEELRC 3419 (KLR)
The bottom line
#Kenya Power lost an unfair dismissal case because it skipped steps in its own HR manual, costing it over a million shillings.
What this practically means
#Executive summary
#Key legal issues
#Procedural fairness of the summary dismissal
The dismissal was procedurally unfair: the explanation letter was not copied to officers required by the HR Manual, notice of the disciplinary hearing was under 24 hours, new allegations (James Wakoli) were introduced at the hearing, and no witness statements were taken from key persons as the Manual's investigation procedure required
The Court held that HR Manual stipulations are contractual and mandatory. The unexplained non-copying of the letter, the inadequate notice prejudicing preparation, the introduction of matters not in the show cause letter contrary to section 41 of the Employment Act, and contravention of Clause 4(i) on investigations cumulatively amounted to a want of procedural fairness.
Substantive justification of the dismissal
The dismissal lacked a valid and fair reason; the variance between Kshs. 20,100 in the audit report and Kshs. 153,100 in the show cause letter was unexplained, the guarantor-loan explanation was reasonable, and the transactions predated the tender process
Section 43 and 45 burdens were not discharged. The unexplained variance created an impression of wrongful accusation; the money from Robert was a reimbursement of amounts recovered from the Claimant as guarantor; money sent to Rotich predated prequalification; and no evidence showed the funds were intended to influence the tender.
Burden of proof under section 47(5)
The employee bears the initial burden of prima facie showing unfairness, which then shifts to the employer; the Claimant discharged his burden
The Court applied the dualistic burden scheme in section 47(5): the employee must first tender prima facie evidence of absence of valid reason or fair procedure, whereafter the employer must justify the dismissal on a balance of probabilities. Having found procedural unfairness, the Claimant had discharged his burden.
Respondent's counterclaim
The counterclaim was merited for the admitted unpaid car loan balance of Kshs. 479,290.58, to be offset against the awards
The Claimant admitted in cross-examination that he took a car loan not fully repaid at separation. An email of 25 June 2018 put the balance at Kshs. 479,290.58, and the Court awarded that admitted amount to the Respondent.
Legal principles established
#- For a termination to pass the fairness test there must be both substantive justification and procedural fairness
- Terms in an organisation's Human Resource Policies and Procedure Manual become part of contractual terms and unexplained departure by an employer supports a finding of procedural unfairness
- Adequacy of notice of a disciplinary hearing depends on the circumstances of each case, including the complexity of the matter and the documents availed
- Issues to be discussed at a disciplinary hearing must be the same as those in the show cause letter
Court orders
#- 1.A declaration that the Claimant's termination was both procedurally and substantively unfair
- 2.One month's salary in lieu of notice of Kshs. 139,575.00
- 3.Compensation for 14 leave days earned but unutilised of Kshs. 81,418.75
- 4.Compensation under section 49(1)(c) of the Employment Act at 8 months' gross salary of Kshs. 1,116,600
- 5.Interest on the sums awarded at Court rates from the date of judgment until full payment
- 6.Costs of the suit to the Claimant
- 7.The sums awarded to be offset by Kshs. 478,290.58 awarded in the Counterclaim
- Jurisdiction invoked
- Employment and Labour Relations Court Act, section 12
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Kamunyu v Ndegwa & 2 others (Employment and Labour Relations Petition E013 of 2025) [2025] KEELRC 2914 (KLR)[2025] KEELRC 2914 (KLR)22 Oct 2025
Cite this brief
#Cite this brief
Caselaw, "Marete v Kenya Power & Lighting Company Limited (Employment and Labour Relations Cause 1205 of 2018) [2023] KEELRC 3419 (KLR)", Case Analysis (2023). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/3419/eng@2023-12-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.