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ELRCDismissedPetition (amended petition dated 22.05.2023)· [2024] KEELRC 272 (KLR)

Kikata & another (As Legal Representatives of the Estate of Patrick Nzuki Mutinda - Deceased) v Kenya Power & Lighting Company Ltd (Petition E111 of 2022) [2024] KEELRC 272 (KLR)

Employment and Labour Relations Court
16 February 2024
2,501 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The petitioners, legal representatives of the late Patrick Nzuki Mutinda, petitioned the Employment and Labour Relations Court seeking a declaration that Kenya Power & Lighting Company's dismissal of the deceased by letter dated 20.06.2022 violated Articles 41, 47 and 50 of the Constitution, an order of certiorari to quash the dismissal, general damages, and costs. The deceased, employed by the respondent and absorbed on permanent terms in 2019/2020, was dismissed after a complaint by former employee Rono Kiprotich Simon alleging the deceased received Kshs. 250,000 purportedly to facilitate his reinstatement. The complainant withdrew his complaint, but the respondent investigated, corroborated receipt of the monies through mpesa and bank statements, and dismissed the deceased following a disciplinary hearing. The respondent maintained that due procedure, valid reason, and fair hearing were observed, and that the deceased declined to co-operate with investigations or record statements. The court found that due procedure was followed - show-cause letter issued, reply received, and a disciplinary hearing attended with union representation - satisfying section 41 of the Employment Act and Articles 41 and 47. It held there was a valid and fair reason for dismissal under sections 43 and 45, as the substance of the allegations was never rebutted and trust and confidence had been lost notwithstanding the complaint's withdrawal. The court also upheld the objection that the constitutional petition was an abuse of process since the grievances were amenable to remedies under the Employment Act, 2007. The petition was dismissed with each party bearing its own costs, the court noting the employee had since passed on.

Key legal issues

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01

Procedural fairness of the dismissal

Holding

The dismissal procedure was fair and compliant with the law

Reasoning

The court found that the respondent issued a show-cause letter dated 09.05.2022 to which the deceased replied, rescheduled the disciplinary hearing at his request, and conducted the hearing on 13.06.2022 with union representatives present. This satisfied section 41 of the Employment Act and the fair administrative action guarantees of Article 47 and fair labour practices under Article 41. No violation of the Bill of Rights was established.

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02

Validity and fairness of the reason for dismissal

Holding

The respondent had a valid reason under section 43 and a fair reason under section 45, namely gross misconduct in soliciting and receiving Kshs. 250,000 as a facilitation fee, and resulting loss of trust and confidence

Reasoning

The respondent investigated independently, obtained mpesa and bank statements corroborating receipt of the money, and the deceased declined to record statements or explain the transactions. Although the complainant withdrew the complaint, the substance of the allegations was never significantly rebutted and the employer was entitled to make a finding on the circumstances of the withdrawal. The dismissal on grounds of lost trust and confidence could not be disturbed.

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03

Whether the constitutional petition was an abuse of process

Holding

Yes - the proper remedy lay under the Employment Act, 2007 for unfair dismissal, not a constitutional petition

Reasoning

The court upheld the respondent's objection that the petitioners used the constitutional petition route to avoid the statutory framework. The grievances raised were purely matters of unfair termination or dismissal, for which complete remedies exist under the Employment Act, 2007, making the petition an abuse of court process.

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Legal principles established

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  • An employer complies with section 41 of the Employment Act and Articles 41 and 47 of the Constitution where it issues a show-cause letter, receives a reply, and affords the employee a disciplinary hearing before dismissal.
  • The subsequent withdrawal of a complaint by its maker does not automatically invalidate a dismissal where the substance of the allegations was never rebutted; the employer may assess the circumstances of the withdrawal and may found dismissal on loss of trust and confidence.
  • Constitutional petitions raising purely employment-dismissal grievances that are amenable to remedies under the Employment Act, 2007 constitute an abuse of court process.

Court orders

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  1. 1.Judgment entered for the respondent against the petitioner
  2. 2.The petition is dismissed
  3. 3.Each party to bear own costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 41, 47, 50
  • Employment ActSections 41, 43, 45
  • Public Officer Ethics Act, Cap 183Not specified
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 and Articles 41, 47 and 50 of the Constitution as invoked in the petition

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, "Kikata & another (As Legal Representatives of the Estate of Patrick Nzuki Mutinda - Deceased) v Kenya Power & Lighting Company Ltd (Petition E111 of 2022) [2024] KEELRC 272 (KLR)", Case Analysis (2024). Petition (amended petition dated 22.05.2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/272/eng@2024-02-16

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