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ELRCPartially AllowedNairobi ELRC Cause No. E310 of 2022· [2024] KEELRC 2245 (KLR)

Musili v Kenya Power and Lighting Company (Cause E310 of 2022) [2024] KEELRC 2245 (KLR)

Employment and Labour Relations Court
19 September 2024
6,832 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~27 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ruled a dismissal unfair because the employer hid its audit report and relied on an untested witness, awarding the employee over Kshs.2 million.

What this practically means

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Executive summary

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The Claimant, employed by the Respondent from 1989 and rising to Artisan III/Hiab Operator, was summarily dismissed effective 4th September 2020 on the ground that he irregularly installed a 630 KVA transformer at Plast Packaging Industries Ltd along Lokitaung Road. He sued for declarations of unfair and unlawful termination, 12 months' compensation, four months' notice pay, leave pay, damages for violation of fair labour practices, or reinstatement. The court framed two issues: whether the termination was unfair and unlawful, and whether the reliefs were merited. On substance, the court found the only witness implicating the Claimant (Peter Muriu Ng'ang'a) gave an untested statement lacking GNo., serial number, date and time, while the customer never named the Claimant and the Claimant produced authorised Store Transaction Forms for transformers he collected; hence no valid and fair reason was proved. On procedure, although the Respondent observed the skeleton of Section 41, it withheld the Audit Report on which the charges rested (save for 5 minutes' perusal at the hearing) and failed to avail witnesses for cross-examination, denying the Claimant fair hearing contrary to Section 41 of the Employment Act and Section 4(3)(g) of the Fair Administrative Action Act. Judgment was entered for the Claimant: a declaration that the dismissal was unfair, four months' salary in lieu of notice (Kshs.649,419.72) under the 2017/2020 CBA, and nine months' gross salary (Kshs.1,461,194.37) as compensation under Section 49(1)(c), totalling Kshs.2,110,614.09. Leave pay was declined for want of particulars, the Kshs.2 million damages claim was dismissed for want of evidence, reinstatement was time-barred, and each party bore its own costs.

Key legal issues

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01

Whether the Respondent had a valid and fair reason (substantive justification) to dismiss the Claimant

Holding

No - the Respondent failed to demonstrate a valid and fair reason; the only implicating statement was untested, lacked particulars and relied on a former foreman who had left employment before the alleged incident.

Reasoning

The customer at Plast Packaging Industries Ltd did not name the Claimant. The only witness implicating him, Peter Muriu Ng'ang'a, was never availed for cross-examination, his statement lacked GNo., serial number, date and time, and named a foreman dismissed in 2016. The Claimant produced authorised Store Transaction Forms for transformers he collected. Section 43(2) requires only a genuine belief on a reasonable basis, which was absent.

p. 11
02

Whether the disciplinary procedure employed was fair under Section 41 of the Employment Act

Holding

The procedure was flawed and unfair because the Audit Report relied upon was withheld, witnesses were not availed for cross-examination, and only 5 minutes were given to peruse a 38-page report.

Reasoning

Although notice to show cause, response, hearing, appeal and sufficient time were present, the Respondent withheld the Audit Report forming the basis of the charge, contrary to Section 4(3)(g) of the Fair Administrative Action Act. The principal accuser, Peter Muriu Ng'ang'a, was never produced, so the Claimant was convicted on untested averments, stifling his right to fair hearing.

p. 12
03

Reliefs

Holding

Declaration granted; four months' notice pay under CBA; nine months' gross salary compensation under Section 49(1)(c); leave pay, damages and reinstatement refused.

Reasoning

The Claimant served over 30 years, did not contribute to the termination, and had only minor prior incidents; hence the equivalent of 9 months' gross salary was fair compensation. Leave pay lacked particulars; damages had no evidentiary support; reinstatement was time-barred under Section 12(3)(vii) ELRC Act.

p. 14

Legal principles established

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  • A fair termination requires both substantive justification and procedural fairness.
  • An employee facing disciplinary charges must be supplied with the charges and the evidence the employer intends to rely on to enable adequate preparation.
  • An accuser's untested statement without particulars is not a reasonable basis for an employer to genuinely believe a ground for termination exists.

Court orders

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  1. 1.Declaration that termination of the Claimant's employment by the Respondent was unfair.
  2. 2.Four (4) months' salary in lieu of notice Kshs.649,419.72.
  3. 3.Equivalent of 9 months' gross salary Kshs.1,461,194.37.
  4. 4.Parties shall bear their own costs.

Authorities

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Legislation

  • Employment ActSections 41, 43, 43(2), 44, 45, 45(7), 46, 49(1)(c), 49(4)
  • Fair Administrative Action ActSection 4(3)(g)
  • Employment and Labour Relations Court ActSection 12(3)(vii)
  • Constitution of KenyaArticles 159(2)(d), 48
  • Civil Procedure ActSection 1B
  • Civil Procedure RulesOrder 21 Rule 1
  • CBA 2017/2020 (Kenya Electrical Trades & Allied Workers Union)Clause 3.9; Clause 25.0

Cases cited (9)

  • Walter Ogal Anuro V Teachers Service Commission
    (2013) eKLR
  • Mereru V Tata Chemicals Magadi Ltd
    (2023) KEELRC 2632 (KLR)
  • Ol Pejeta Ranching Ltd V David Wanjau Muhoro
    (2017) eKLR
  • BATUK Unit Kenya V Mutahi
    (2023) KECA 1417 (KLR)
  • Pius Machafu Isindu V Lavington Security Guards Ltd
    (2017) eKLR
  • Naima Khamis V Oxford University Press (EA) Ltd
    (2017) eKLR
  • Galgalo Jillo Jarso V Agricultural Finance Corporation
    (2021) eKLR
  • Postal Corporation of Kenya V Andrew K. Tanui
    (2019) eKLR
  • Regent Management V Wilberforce Ojiambo Oundo
    (2018) eKLR
Jurisdiction invoked
Employment and Labour Relations Court Act, 2011, Section 12(3)(vii)

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, "Musili v Kenya Power and Lighting Company (Cause E310 of 2022) [2024] KEELRC 2245 (KLR)", Case Analysis (2024). Nairobi ELRC Cause No. E310 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2245/eng@2024-09-19

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