Hiribae v Kenya Pipeline Company Limited (Cause 476 of 2019) [2024] KEELRC 2045 (KLR)
The bottom line
#Kenya Pipeline's unfair dismissal of a technician over unproven theft allegations earned the employee six months' pay.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the parties were in a contract of service
- 2.Whether and how the contract of service was terminated
- 3.Whether the termination was fair (in substance and procedure)
- 4.What remedies, if any, the claimant is entitled to
Key legal issues
#Validity of the reason for termination
The reason (negligence enabling theft of products) was not genuine or established
The claimant's unrebutted testimony was that his role was to pump product through underground pipes at high pressure per instructions and he could not interfere with it. The quantity stolen was never quantified or linked to him by documents. Culpability was never established at the disciplinary hearing, so the respondent failed to justify the reason under sections 43 and 47(5) of the Employment Act.
Fairness of the reason under section 45
The termination was based on an unfair or unjustified reason
The alleged negligence-related duty and its breach were never established. It was not shown how the claimant was involved if unauthorised trucks accessed the product, and security was not his role. The reason therefore did not relate to his conduct, compatibility, or the respondent's operational requirements as required by section 45 of the Employment Act.
Fairness of procedure
Procedure was unfair: the disciplinary panel was improperly constituted and the administrative appeal was never determined
The staff rules required the disciplinary panel to include the Head of HRD, the Section Head of the concerned officer and one other Section Head; the claimant's evidence that this was not complied with was unrebutted. The non-compliance went to the panel's jurisdiction, rendering the proceedings incurably defective. The respondent also failed to consider and determine the claimant's administrative appeal as agreed.
Remedies for unfair termination
Reinstatement and the linked injunction refused as time-barred/overtaken; 6 months' gross salary awarded as compensation under section 49
Reinstatement is time-barred under section 12 of the ELRC Act, 2011, and the injunction depended on reinstatement. Applying section 49 factors and considering around ten years of service and the payments already made (especially one month's notice pay), the Court balanced justice by awarding 6 months' gross salary (6 x Kshs.105,000 = Kshs.630,000), less PAYE.
Legal principles established
#- An employer must establish a valid and genuine reason for termination under sections 43 and 47(5) of the Employment Act; unsubstantiated allegations of theft do not suffice
- Non-compliance with staff rules on the composition of a disciplinary panel goes to the jurisdiction of the panel and renders the proceedings incurably defective
- Failure to hear and determine an agreed administrative appeal means the employer has not adopted a fair procedure before summary dismissal
Court orders
#- 1.Payment of Kshs. 630,000.00 (less PAYE) by 01.09.2024, failing which interest at Court rates from the date of judgment until full payment
- 2.Respondent to pay costs of the suit
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Employment and Labour Relations Court Act, 2011, section 12; Employment Act, 2007 (sections 43, 44, 45, 47(5), 49)
Relief refused
#Reinstatement to employment on the same terms as before 2nd March 2016
Statutory limitation of three years under section 12 of the Employment and Labour Relations Court Act, 2011 had lapsed
Injunction prohibiting the respondent from evicting the claimant from House Number 47, Kenya Pipeline Estate, Outering Road
It was anchored on reinstatement, which was no longer available as the contract of service had been terminated
Outstanding and unpaid salary for days worked from 2nd March 2016 to date
Not granted; the dismissal letter provided for payments up to 22.07.2016, which the Court treated as a mitigating factor
Costs
Considering the margins of success, the respondent to pay costs of the suit
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Thus, the termination was unfair both in procedure and in substance.
An improperly constituted disciplinary panel rendered the proceedings incurably defective.
In conclusion, judgment is hereby entered for the claimant against the respondent for: 1. Payment of Kshs. 630, 000.00 (less PAYE) by 01.09.2024 failing interest to be payable thereon at Court rates from the date of this judgment until full payment. 2. Payment of costs of the suit.
Issues in the judgment
#The suit number/case number is not stated anywhere in the judgment text supplied
The judgment refers to the dismissal letter citing nights of 26th/27th June 2015 and 5th/6th November 2015, whereas the claimant's pleadings and show cause response refer to duty on 6th-7th July 2015 and 7th-8th November 2015 - a discrepancy in the dates of the alleged incidents
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Hiribae v Kenya Pipeline Company Limited (Cause 476 of 2019) [2024] KEELRC 2045 (KLR)", Case Analysis (2024). Not stated in the judgment (memorandum of claim dated 19.07.2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2045/eng@2024-07-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.