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ELRCPartially AllowedCause No E003 of 2025· [2025] KEELRC 2068 (KLR)

Ojwang v Kenya Power & Lighting Co (KPLC) (Cause E003 of 2025) [2025] KEELRC 2068 (KLR)

Employment and Labour Relations Court
14 July 2025
4,265 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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The claimant, employed by the respondent from 28th February 1992 as a Meter Reader and serving for 30 years, sued for unfair termination following his dismissal on 1st November 2022. He was accused of facilitating an illegal electricity connection for one Willis Odhiambo through one Jacob Okoth, to whom the customer paid Kshs.140,880 via a mobile number the claimant had supplied. He sought three months' salary in lieu of notice, twelve months' compensation, and Kshs.14,612,898.60 for the unexpired period of his employment. The respondent maintained the dismissal was substantively and procedurally fair. The court found that although the claimant had been acquitted of criminal charges at Nyando Law Courts, that acquittal was technical and distinct from the employer's contractual disciplinary process. On the evidence, including the claimant's contradictory testimony and refusal to answer whether he was lying, the court found the respondent had a valid reason to terminate - the claimant was the architect of the events culminating in dismissal. Procedurally, however, the respondent failed to avail the investigation report to the claimant before the disciplinary hearing, rendering the termination procedurally unfair under Sections 45(4) and (5) of the Employment Act. Notice pay was declined as the dismissal was summary for gross misconduct under Section 44; the anticipatory earnings claim lacked anchorage in law. The court awarded compensation under Section 49(1)(c) equivalent of one month's gross salary, Kshs.243,548.31, considering his long service but his blameworthiness, together with 50% costs of the suit. Judgment dated, signed and delivered virtually at Kisumu on 14th July 2025 by Dr. Jacob Gakeri, Judge.

Key legal issues

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01

Whether the employer had substantive justification for the termination

Holding

Yes - the respondent had a valid and fair reason grounded in the claimant's collusion in constructing an illegal power line

Reasoning

The court found the claimant was the only employee who dealt with the customer in 2018, gave him a mobile number belonging to Jacob Okoth, money was sent through that number, and an illegal line was recovered from the customer's property. The claimant gave contradictory testimony and refused to answer whether he was lying. The court held it more probable than improbable that the claimant orchestrated the events, satisfying the reasonable responses test and Section 43/45 of the Employment Act.

p. 7
02

Whether the termination was procedurally fair

Holding

No - the respondent failed to avail the investigation report to the claimant before the disciplinary hearing, rendering the termination procedurally flawed and unfair

Reasoning

The court accepted that notice to show cause, response, hearing and appeal were complied with, but held that an employee is entitled to all materials the employer relies on, including witness statements and the investigation report. Failure to avail the report impaired the claimant's right to a fair trial, making the termination procedurally unfair under Section 45(4) and (5) of the Employment Act.

p. 8
03

Entitlement to reliefs

Holding

Only compensation under Section 49(1)(c) equivalent of one month's gross salary (Kshs.243,548.31); notice pay and anticipatory earnings refused

Reasoning

Notice pay failed because the dismissal was summary for gross misconduct under Section 44. Anticipatory earnings lacked legal anchorage per D K Njagi Marete and Elizabeth Wakanyi Kibe. In quantifying compensation, the court considered 30 years of service, absence of prior disciplinary record, the appeal, but the claimant's blameworthiness, awarding one month's gross salary.

p. 8

Legal principles established

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  • An employee facing disciplinary proceedings is entitled to all materials the employer relies upon, including the investigation report and witness statements, to prepare a defence; failure to avail them renders the termination procedurally unfair
  • An acquittal in criminal proceedings does not bar an employer from disciplining or terminating an employee under the contract of employment; the two are distinct processes with different standards of proof
  • Damages for unfair termination do not extend to anticipated earnings up to retirement; no employment is permanent

Court orders

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  1. 1.Equivalent of one (1) month's gross salary Kshs.243,548.31 awarded to the claimant
  2. 2.50% costs of the suit

Authorities

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Legislation

  • Employment ActSections 41, 43, 43(2), 44, 45, 45(2)(1), 45(4) and (5), 47(5), 49(1)(c)
  • Criminal Procedure CodeSection 210
  • Energy ActSection 118
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B
  • Constitution of KenyaArticles 159(2)(d) and 48

Cases cited (22)

  • Anthony Mkala Chitavi V Malindi Water & Sewerage Co. Ltd
    [2013] eKLR
  • Mary Chemweno Kiptui V Kenya Pipeline Co. Ltd
    [2014] eKLR
  • Postal Corporation Kenya V Andrew K. Tanui
    [2019] eKLR
  • Kenya Union of Commercial Food & Allied Workers V Meru North Farmers Sacco Ltd
    [2013] eKLR
  • Dairus Kiseu Mwamburi V Co-operative Bank
    [2021] eKLR
  • Thomas Sila Nzivo V Bamburi Cement Ltd
    [2014] eKLR
  • Evans Kamadi Misango V Barclays Bank of Kenya Ltd
    [2015] eKLR
  • John Jaoko Othino V Intrahealth International
  • Kenya Power & Lighting Co. Ltd V Aggrey Lukorito Wasike
    [2017] eKLR
  • Naima Khamis V Oxford University Press (EA) Ltd
    [2015] eKLR
  • Walter Ogal Anuro v Teachers Service Commission
    [2013] eKLR
  • Galgalo Jarso Jillo V Agricultural Finance Corporation
    [2021] eKLR
  • Kenya Revenue Authority V Reuwel Waithaka Gitahi & 2 others
    [2019] eKLR
  • British Leyland (UK) Ltd V Swift
    [1981] IRLR
  • Pius Machafu Isindu V Lavington Security Guards Ltd
    [2017] eKLR
  • Jane Samba Mukala V Ol Tukai Lodge Ltd
    [2013] eKLR
  • Andrew K Tanui V Postal Corporation of Kenya
    [2019] eKLR
  • Regent Management Ltd V Wiberforce Ojiambo Oundo
    [2018] eKLR
  • Ol Pejeta Ranching Co. Ltd V David Wanjau Muhoro
    [2017] eKLR
  • D K Njagi Marete V Teachers Service Commission
    [2020] eKLR
  • Elizabetith Wakanyi Kibe V Telkom Kenya Ltd
    [2014] eKLR
  • Engineer Francis Gachuri V Energy Regulatory Commission
    [2013] eKLR
Jurisdiction invoked
First-instance jurisdiction of the Employment and Labour Relations Court over unfair termination of employment (Employment Act; no specific constitutional provision invoked for jurisdiction)

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, "Ojwang v Kenya Power & Lighting Co (KPLC) (Cause E003 of 2025) [2025] KEELRC 2068 (KLR)", Case Analysis (2025). Cause No E003 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2068/eng@2025-07-14

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