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ELRCPartially AllowedCause No E911 of 2021· [2024] KEELRC 349 (KLR)

Kinyua v Kenya Power and Lighting Company Limited (Cause E911 of 2021) [2024] KEELRC 349 (KLR)

Employment and Labour Relations Court
23 February 2024
4,539 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~18 min to read original · ~4 min brief

The bottom line

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Kenya Power won on the reason for dismissal but lost on process—pre-writing a disciplinary outcome made the termination unfair and costly.

What this practically means

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Executive summary

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The Claimant, employed by the Respondent as a technician in the Revenue Protection Unit, was summarily dismissed on 5th February 2020 following an internal audit investigation into irregular rebilling and unprocedural meter changes in the Coast region. He alleged the dismissal was procedurally unfair and substantively unjustified. The Respondent maintained he violated Clause 6.3 of its Operating Procedures by raising a work order, assigning it to himself and replacing a meter, thereby facilitating a network that defrauded the company of revenue. The Court framed three issues: whether there was a justifiable reason for termination, whether the process was procedurally fair, and the reliefs payable. On substance, the Court found the Claimant acted contrary to the Operating Procedures, giving the Respondent a valid and fair reason for disciplinary action; delegated authority was not a blank cheque to perform all meter replacement roles. On procedure, however, the Court found the process flawed: handwritten instructions on the investigation report cover directing dismissal showed a predetermined outcome, and the show cause letter failed to specify the accounts referred to in part of the charge, compromising the Claimant's defence. Following Ol Pejeta Ranching Limited v David Wanjau Muhoro, the Court held the termination unlawful on procedural grounds despite substantive justification. The Court awarded one month's salary in lieu of notice (Kshs 93,186.00) and four months' gross salary as compensatory damages (Kshs 372,744.00), totalling Kshs 465,930.00, with interest at court rates. Claims for service pay, economic damages, emotional distress and loss of future earnings were declined. The Claimant was awarded the costs of the suit.

Key legal issues

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01

Justifiable reason for termination

Holding

The termination was substantively justified. The Claimant, as Routine Inspection Supervisor, acted contrary to Clause 6.3 of the Operating Procedures by raising a work order, assigning it to himself and installing the meter at the client's premises.

Reasoning

Section 43(1) and Section 45(2)(a) and (b) of the Employment Act require the employer to prove a valid and fair reason related to conduct, capacity or compatibility. Clause 6.3 of the Respondent's Operating Procedures assigns distinct roles to different players in meter replacement to ensure control and avert abuse. The Claimant admitted he raised the service order, assigned it to himself and installed the meter, contrary to the procedure. Delegated authority was not a blank cheque to perform all duties; his role started and ended at raising work orders.

p. 7
02

Procedural fairness

Holding

Although substantively justified, the dismissal was procedurally unfair because the disciplinary process had a predetermined conclusion (handwritten instructions on the investigation report cover directing dismissal) and the Claimant was not served with sufficient details of the charges.

Reasoning

Section 45(2)(c) and Section 41(1) of the Employment Act require a fair hearing before termination. The show cause letter failed to disclose the accounts referred to in part (1) of the charge, compromising the Claimant's defence, as in Ol Pejeta Ranching Limited v David Wanjau Muhoro. Further, handwritten instructions on the investigation report cover directing dismissal showed the outcome was predetermined, rendering the process objective in appearance only. This rendered the termination unlawful.

p. 9
03

Reliefs

Holding

The Claimant was awarded one month's salary in lieu of notice and four months' gross salary as compensatory damages for the procedurally unfair termination; service pay, economic damages, emotional distress and loss of future earnings were declined.

Reasoning

Having found the summary dismissal procedurally unfair, the Court exercised its discretion under Section 49 of the Employment Act to award notice pay and four months' compensatory damages. Service pay was barred by the Section 35(6) exclusion as the Claimant was a member of the Company's Retirement Benefits Scheme. The claim for economic damages, emotional distress and loss of future earnings was declined in line with Mary Mutanu Mwendwa v Ayuda Ninos De Africa-Kenya, which caps loss of earnings at twelve months' gross wages.

p. 9

Legal principles established

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  • An employer must prove a valid and fair reason for termination under Sections 43(1) and 45(2) of the Employment Act, failing which the termination is unfair.
  • A disciplinary process with a predetermined outcome, evidenced by pre-written instructions to dismiss, is procedurally unfair even where the substantive reason for termination is justified.
  • An employee must be supplied with the specific allegations/accounts against him so he can effectively defend himself; generalised charges render termination procedurally unfair.

Court orders

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  1. 1.One (1) month's salary in lieu of notice being Kshs 93,186.00.
  2. 2.Compensatory damages in the sum of Kshs 372,744.00 being equivalent to four (4) months of gross salary.
  3. 3.Total award of Kshs 465,930.00.
  4. 4.Interest on the total award at court rates from the date of Judgment until payment in full.
  5. 5.The Claimant shall have the costs of the suit.

Authorities

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Legislation

  • Employment ActSection 41
  • Employment ActSection 43(1)
  • Employment ActSection 45(2)(a) and (b)
  • Employment ActSection 45(2)(c)
  • Employment ActSection 35(6)
  • Employment ActSection 42(1)
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48
  • Civil Procedure ActSection 1B
  • Civil Procedure RulesOrder 21 Rule 1

Cases cited (6)

  • Kenya Ports Authority v Mary Saru Mwandawiro
    (2017) eKLR
  • Sabina Mutua v Amedo Centre Kenya Limited
    (2017) eKLR
  • Walter Ogal Anuro v Teachers Service Commission
    (2013) eKLR
  • Janet Nyandiko v Kenya Commercial Bank Limited
    (2017) eKLR
  • Ol Pejeta Ranching Limited vs David Wanjau Muhoro
    [2017] eKLR
  • Mary Mutanu Mwendwa vs Ayuda Ninos De Africa-Kenya
    [2013] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment and labour relations disputes (Employment Act; Article 162(2) - claim framed as infringement of right to fair labour practices)

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, "Kinyua v Kenya Power and Lighting Company Limited (Cause E911 of 2021) [2024] KEELRC 349 (KLR)", Case Analysis (2024). Cause No E911 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/349/eng@2024-02-23

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