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ELRCPartially Allowed· [2024] KEELRC 543 (KLR)

Wambugu v Kenya Power and Lighting Company (Employment and Labour Relations Cause E006 of 2022) [2024] KEELRC 543 (KLR)

Employment and Labour Relations Court
8 March 2024
4,008 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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Kenya Power failed to prove its employee committed the misconduct, so the court awarded him notice pay and six months' salary despite a fair disciplinary process.

What this practically means

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Executive summary

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The claimant, employed by the respondent from 1st May 2015 as a Technician in charge of Operations and Maintenance at Maua, was dismissed by letter dated 7th January 2021 for allegedly participating in illegal re-routing of electricity poles on 2nd August 2020 and 19th September 2020 and misusing the respondent's Hiab registration number KCE 881D, allegedly upon payment by a road contractor. He sued for declarations of unfair termination under Articles 41 and 47 of the Constitution and sections 41, 43, 44 and 45 of the Employment Act, compensation of twelve months' salary, notice pay, interest and costs. The respondent maintained there was a valid reason and fair procedure. The court framed two issues: whether the termination was unfair and unlawful, and whether the reliefs were merited. It found no direct evidence connecting the claimant to the illegal re-routing or misuse of the Hiab, and held that the circumstantial factors relied upon - his position, residence near the scene and presence nearby - did not link him to the offence; the weekend timing suggested he was off duty. The respondent therefore failed to prove valid reasons under sections 43 and 45. However, the procedure was fair: show cause, response, disciplinary hearing before a five-member committee, and an appeal before a different committee. The constitutional claim failed the Anarita Karimi Njeru precision threshold and was covered by the Employment Act's statutory remedies. Judgment was entered for the claimant with one month's notice pay (Kshs. 97,408), six months' compensation (Kshs. 584,448), costs, interest, subject to statutory deductions.

Key legal issues

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01

Whether the reasons for termination were valid under sections 43 and 45 of the Employment Act

Holding

The respondent failed to prove on a balance of probability the validity of the reasons for dismissal; no direct or sufficient circumstantial evidence connected the claimant to the illegal re-routing or misuse of the Hiab

Reasoning

The court found no direct evidence linking the claimant to the offence. Circumstantial factors - his position as O&M in charge, presence near the scene, and presumed awareness - did not connect him to the offence. The illegal re-routing occurred over a weekend, pointing to him being off duty, and he did not produce work tickets said to favour him. The respondent failed to discharge its evidential burden.

p. 7
02

Whether the procedure followed was fair under section 41 of the Employment Act

Holding

The employer accorded the claimant a fair hearing: investigation, show cause letter, response, disciplinary hearing before a committee, and appeal before a differently constituted committee

Reasoning

The claimant was interviewed, served with a show cause letter which he answered, attended a disciplinary hearing before a five-member committee whose minutes were recorded, and appealed to a differently constituted committee which upheld the dismissal and notified him. The court found no hostility in the minutes and dismissed the allegation of a predetermined hearing.

p. 7
03

Whether the claimant established a violation of Articles 41 and 47 of the Constitution

Holding

The constitutional claim failed for want of the precision required by Anarita Karimi Njeru and because the Employment Act adequately covers and remedies those protections

Reasoning

The court held the claimant had not set out with reasonable precision the provisions said to be infringed and the manner of infringement. Further, Articles 41 and 47 protections are covered by sections 41, 43 and 45 of the Employment Act and remedied under section 49, so even a finding of violation would add no compensation beyond the damages awarded.

p. 8

Legal principles established

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  • The legal burden of proving unfair termination lies with the employee, while the evidential burden of justifying the termination lies with the employer, who must prove a valid reason and fair procedure
  • An employer need not prove the employee's involvement in an offence conclusively, but only reasonable and sufficient grounds to believe involvement; where even that is not proved, the termination fails the validity test
  • Constitutional claims in employment matters must satisfy the Anarita Karimi Njeru threshold of precision, and statutory remedies under the Employment Act adequately cover Article 41 and 47 protections

Court orders

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  1. 1.Declaration that the claimant's dismissal was unfair and unlawful contrary to section 45 of the Employment Act
  2. 2.One month's salary in lieu of notice of Kshs. 97,408.00
  3. 3.Compensation for unfair termination of six months' gross salary at Kshs. 584,448.00
  4. 4.Costs and interest at court rates from the date of the judgment
  5. 5.The award is subject to statutory deductions

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 41 and 47
  • Employment Act No. 11 of 2007Sections 41, 42(1), 43, 44, 45, 47, 49 and 50
  • Evidence ActSection 33
  • ELRC Procedure RulesRule 28(3)

Cases cited (6)

  • Menginya Slimi Murgani v Kenya Revenue Authority
    (2006) eKLR
  • Joshua Rodney Marimba v Kenya Revenue Authority
    (2019) eKLR
  • Walter Ogal Onuro v Teachers Service Commission
    (2013) eKLR
  • Kenya Revenue Authority v Reuwel Waithaka Gitahi 2 others
    (2019) eKLR
  • Thomas Sila Nzivo v Bamburi Cement Limited
    (2014) eKLR
  • Anarita Karimi Njeru
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act No. 11 of 2007 and Articles 41 and 47 of the Constitution of Kenya, 2010

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, "Wambugu v Kenya Power and Lighting Company (Employment and Labour Relations Cause E006 of 2022) [2024] KEELRC 543 (KLR)", Case Analysis (2024). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/543/eng@2024-03-08

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