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ELRCDismissedCause No 1982 of 2017· [2024] KEELRC 617 (KLR)

Achuchi v Kenya Power & Lighting Co Ltd (Cause 1982 of 2017) [2024] KEELRC 617 (KLR)

Employment and Labour Relations Court
13 March 2024
JGJacob Gakeri
6,091 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court upheld an employee's dismissal, finding the employer had valid reasons and followed a fair procedure, so no compensation was awarded.

What this practically means

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Executive summary

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The Claimant, a Building Technician employed by the Respondent from 1st August 2008 until his summary dismissal on 4th July 2017, sued alleging unlawful dismissal. He was dismissed over two grounds: failure to detect defects in the Hydrogeological Survey Report for the Rabai Borehole project, which occasioned unwarranted expenditure, and instructing a contractor to repair the Mbaraki borehole without authority at a cost of Kshs.559,396. He sought a declaration of unlawful termination, notice pay, 12 months' compensation, salary till retirement, punitive damages, interest and costs. The Respondent maintained the dismissal was both substantively justified and procedurally fair. The court framed two issues: whether the termination was unfair and whether the reliefs were due. On substance, the court found the Respondent had failed to prove the first reason - the Claimant had no hydrogeological expertise and the employer had surrendered viability decisions to the contractor. However, the audit findings - payments before inspection, drilling before WARMA authorization, interim certificate irregularities, and the evasiveness over the Mbaraki repairs - established a valid and fair reason on a balance of probabilities, applying the range of reasonable responses test. On procedure, the Section 41 requirements were met and the appellate process per the HR manual was not impugned. All reliefs were declined, including salary till retirement as anticipatory earnings without legal anchorage. The suit was dismissed with each party bearing its own costs. Judgment delivered virtually at Nairobi on 13th March 2024 by Dr. Jacob Gakeri, Judge.

Key legal issues

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01

Whether the employer had a valid and fair reason for dismissal (substantive justification)

Holding

The first reason (failure to detect a defective hydrogeological report) was not proved, but on the preponderance of probabilities the second cluster of failures - unauthorized Mbaraki repairs, payments before inspection, commencing drilling before WARMA authority - established valid reasons.

Reasoning

The Claimant had no hydrogeological expertise and the Respondent had surrendered viability decisions to the contractor, so blame for the defective report could not attach to him. However, he was the person on the ground: he prepared interim certificates, payments preceded inspections, drilling preceded WARMA authorization, and he was evasive about who instructed the Mbaraki repairs. The employer only needed a genuine belief on reasonable grounds, tested by the range of reasonable responses.

p. 11
02

Whether the dismissal followed fair procedure under Section 41

Holding

Procedural fairness was satisfied; the Claimant was issued a notice to show cause, responded, was heard, and signed the minutes unconditionally.

Reasoning

Section 41's requirements were met: reasons were set out in the notice and explained at the hearing; the Claimant responded to the audit report; the most relevant document (the audit) was before him with his written explanation. The appellate process is governed by the employer's HR manual, not the Employment Act, and the Claimant adduced no evidence it was not followed. The auditor's presence at the hearing was for clarification.

p. 12
03

Entitlement to reliefs

Holding

All reliefs declined since unfairness was not proved and anticipatory earnings have no legal basis.

Reasoning

A declaration of unfair termination, notice pay, and 12 months' compensation all depend on a finding of unfairness, which failed. Salary till retirement is anticipatory earnings; no contract was produced and no employment is permanent. Punitive damages lacked any evidentiary or factual foundation.

p. 13

Legal principles established

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  • Termination must be justified both substantively (valid and fair reason) and procedurally (fair procedure under Section 41).
  • The employer need only prove reasons it genuinely believed to exist, on a balance of probabilities.
  • No employment is permanent; claims for salary till retirement are anticipatory earnings without legal anchorage.

Court orders

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  1. 1.Declaration that termination was unfair is declined
  2. 2.Prayer for pay in lieu of notice is declined
  3. 3.Prayer for 12 months' compensation is declined
  4. 4.Prayer for salary till retirement is declined
  5. 5.Prayer for punitive and exemplary damages is declined
  6. 6.The Claimant's suit is dismissed
  7. 7.Parties shall bear own costs

Authorities

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Legislation

  • Employment ActSection 41
  • Employment ActSection 43(1)
  • Employment ActSection 43(2)
  • Employment ActSection 45
  • Employment ActSection 47(5)
  • Public Procurement and Asset Disposal ActNot specified
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B
  • Constitution of KenyaArticles 159(2)(d) and 48
  • Halsbury's Laws of England, 4th Edition, Vol. 16(1B), paragraph 642Range of reasonable responses test
  • HWR Wade & CF Forsyth, Administration LawPages 449-450 (legitimate expectation)

Cases cited (12)

  • Geoffrey Gikonyo Mathu V Intex Construction Co. Ltd
    (2017) eKLR
  • Walter Ogal Anuro V Teachers Service Commission
    (2013) eKLR
  • Communications Commission of Kenya & 5 others V Royal Media Services
  • National Union of Mineworkers & others V Commission for Reconciliation, Mediation and Arbitration & 2 others
  • Joseph Otieno Kongo V Riley Services Ltd
    (2022) eKLR
  • Hosea Korir Serem V Moi Teaching & Referral Hospital
    (2017) eKLR
  • Pius Machafu Isindu V Lavington Security Guards Ltd
    (2017) eKLR
  • J.W.N V Teachers Service Commission
    (2014) eKLR
  • Hellen Mwania Mule V Kenyatta University
    (2018) eKLR
  • Kenya Revenue Authority V Reuwel Waithaka Gitahi & 2 others
    (2019) eKLR
  • British Leyland UK Ltd V Swift
    (1981) I.R.L.R 91
  • Postal Corporation of Kenya V Andrew K. Tanui
    (2019) eKLR
Jurisdiction invoked
First-instance claim under the Employment Act, 2007 for unfair termination

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, "Achuchi v Kenya Power & Lighting Co Ltd (Cause 1982 of 2017) [2024] KEELRC 617 (KLR)", Case Analysis (2024). Cause No 1982 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/617/eng@2024-03-13

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