Otieno v Kenya Power Lighting Company Limited (Cause 568 of 2019) [2025] KEELRC 635 (KLR)
The bottom line
#Kenya's Employment Court ruled Kenya Power unfairly dismissed an engineer without witnesses or evidence, awarding her over Ksh. 4.6 million.
What this practically means
#Executive summary
#Key legal issues
#Whether the termination was for a valid reason
No valid reason was proved because the complainants were not called as witnesses and no evidence was tabled before the disciplinary panel; the charges remained unproven
Section 43 read with section 47(5) places the burden on the employer to prove valid reasons. The recipients of the subject emails never appeared before the disciplinary panel and RW4 confirmed no investigation was done regarding the email to the performance manager. The NTSC also cited an email of 27/7/2016 which the claimant denied sending, creating unresolved confusion as to the charge.
Whether the procedure followed was fair
The procedure was unfair: the employer did not comply with its own HR Manual, failed to issue a fresh NTSC for new charges, and there was confusion as to what the claimant was to respond to
The explanation letter was not copied to the required officers as the HR Manual mandated, undermining fair hearing. The dismissal letter combined post-NTSC conduct (failure to attend hearings, tone of response) with the original charges without a fresh NTSC. The invitation letter attached unrelated emails, leaving no clear evidence of what was to be answered at the hearing.
Whether the claimant's failure to attend disciplinary and appeal hearings validated the dismissal
The employer still bore the burden of proving the charges; non-attendance did not cure the procedural and evidential failures
Although the claimant did not attend two disciplinary hearings and two appeal hearings, the panel reconstituted itself, retained her accusers including the General Manager ICT on the panel, and processed the appeal only three years later after CAJ intervention. The court treated the unanswered grievances and safety concerns as relevant to the fairness of the decision.
What remedies flow from the unfair termination
Three months' notice pay and 12 months' compensation under section 49, guided by length of service, age, unpaid benefits and failure to address grievances
Following Ken Freight (EA) Ltd v Benson K. Nguti, once unlawful termination is established the remedy lies under section 49 of the Employment Act, exercised judiciously per section 49(4). The court considered 18 years' service, the claimant's advanced age, non-payment of benefits and the failure to address her grievances. Reinstatement was abandoned as time barred.
Whether the claimant was discriminated against
The discrimination claim failed for want of proof of a specific violation
The court considered the prayer for damages for discrimination alongside maximum compensation under section 49(4) and found no proof of a specific violation of the claimant's right not to be discriminated against by the respondent; accordingly no damages for discrimination, unfair working conditions, distress or lost earnings were awarded.
Legal principles established
#- Both substantive justification and procedural fairness must be established for a fair termination of employment
- An employer must avail witnesses and adduce evidence before a disciplinary panel; failure to do so is fatal to the validity of the dismissal
- A Human Resource Manual incorporated into an employment contract binds the employer and must be followed in disciplinary processes
- New disciplinary charges arising after a notice to show cause require a fresh NTSC before they can found a dismissal
Court orders
#- 1.A declaration that the summary dismissal of 31st August 2016 amounts to unfair termination
- 2.Three months' salary in lieu of notice at Ksh. 930,000/= to the claimant
- 3.Compensation for unfair termination of 12 months' salary at Ksh. 310,000/= per month, Ksh. 3,720,000, total award Kshs. 4,655,000.00
- 4.Interest at court rates from the date of judgment till payment in full
- 5.Costs of the claim to the claimant
- Jurisdiction invoked
- Original employment and labour relations jurisdiction under Article 162(2) of the Constitution (Employment and Labour Relations Court)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Otieno v Kenya Power Lighting Company Limited (Cause 568 of 2019) [2025] KEELRC 635 (KLR)", Case Analysis (2025). Cause No 568 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/635/eng@2025-02-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.