Musili v Kenya Power and Lighting Company (Cause E310 of 2022) [2024] KEELRC 2245 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the Respondent had a valid and fair reason (substantive justification) to dismiss the Claimant
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.
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.
Whether the disciplinary procedure employed was fair under Section 41 of the Employment Act
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.
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.
Reliefs
Declaration granted; four months' notice pay under CBA; nine months' gross salary compensation under Section 49(1)(c); leave pay, damages and reinstatement refused.
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.
Legal principles established
#- 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
#- 1.Declaration that termination of the Claimant's employment by the Respondent was unfair.
- 2.Four (4) months' salary in lieu of notice Kshs.649,419.72.
- 3.Equivalent of 9 months' gross salary Kshs.1,461,194.37.
- 4.Parties shall bear their own costs.
- Jurisdiction invoked
- Employment and Labour Relations Court Act, 2011, Section 12(3)(vii)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.