Owino v Kenya Power & Lighting Co. Limited (Employment and Labour Relations Cause E047 of 2022) [2025] KEELRC 2169 (KLR)
The bottom line
#Kenya Power lost an unfair dismissal case because it couldn't prove the fraud allegations and hid key evidence from the employee before her disciplinary hearing.
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 respondent had a valid and fair reason to summarily dismiss the claimant under sections 43 and 44 of the Employment Act
- 2.Whether the disciplinary and dismissal process accorded with section 41 of the Employment Act, including disclosure of the evidence relied upon
- 3.Whether reinstatement was an appropriate remedy
- 4.What compensation and notice pay, if any, the claimant was entitled to
Key legal issues
#Substantive fairness of the dismissal - valid reason under section 43
The respondent failed to prove the grounds of dismissal; the audit contained serious gaps and the causal link between the claimant and the alleged fraud was missing
The audit report allocated Ksh. 40,377 to the claimant but gave no details of the rebillings, meters changed or customers affected. Although the auditor testified about a syndicate, no paper trail connecting the claimant to specific fraudulent transactions was established. Payments received from named individuals were consistent with the claimant's boutique business and were not investigated or tied to rebilling. The allegations therefore amounted to conjecture rather than proof on a balance of probabilities.
Procedural fairness under section 41 - non-disclosure of evidence
The dismissal was procedurally unfair because the disciplinary panel had access to the audit report and M-Pesa records that were never disclosed to the claimant
Section 41 protects both employer and employee during disciplinary hearings. The claimant was not issued the audit report or the M-Pesa records relied upon; the panel had information she never saw, destroying parity. Withholding such material and ambushing an employee is unacceptable in an open, democratic society and offends Article 41 of the Constitution on fair labour practices. This resulted in unfair termination of employment.
Remedies
Reinstatement refused; compensation of 3 months and one month's notice pay awarded
Reinstatement is overtaken by time, and the claimant's prior warning for soliciting money from a customer distinguishes her from the claimant in Benedict Abonyo Omollo; under section 45(5) such record bears on remedies. For 13 years of service, 3 months' gross salary (Ksh. 189,855) was appropriate compensation, plus notice pay of Ksh. 63,285. Each party was ordered to bear its own costs.
Legal principles established
#- The test under section 43 of the Employment Act is whether the employer genuinely believed there were reasons justifying termination, but that subjective test must rest on a reasonable basis
- An employer may not ambush an employee at a disciplinary hearing with undisclosed evidence and resources; fairness requires disclosure
Court orders
#- 1.Judgment entered for the claimant against the respondent for compensation at Ksh. 189,855 (3 months' gross salary)
- 2.Notice pay at Ksh. 63,285
- 3.Each party to bear its own costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over unfair termination claims under the Employment Act; the judgment invokes Article 41 of the Constitution on fair labour practices
Relief refused
#Reinstatement
Reinstatement is overtaken by time and the claimant had a prior disciplinary record, unlike the claimant in the cited Benedict Abonyo Omollo case; the prior warning must bear on remedies under section 45(5) of the Act
Salary arrears, salary until retirement and terminal benefits (188 months)
The court instead awarded 3 months' compensation and notice pay only
Costs
Each party bears its own costs
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.
What the court was left with is an allegation of rebilling, retrofitting, and an unprocedural meter change devoid of evidence.
It cannot be true that an employer should be permitted to use its power and resources to ambush an employee to justify a summary dismissal.
There must be a reasonable basis for believing and acting in the manner that the employer does in terminating the employment.
Accordingly, judgment is hereby entered for the claimant against the respondent for compensation at Ksh. 189. 855 and notice pay at Ksh. 63,285. Each party bears its costs.
Issues in the judgment
#The judgment inconsistently refers to the same authority on the standard of proof under section 43 as both an earlier and a later Court of Appeal decision, without reconciling them
The court quotes clause 6.37 of the audit report as supporting the claimant's boutique explanation, yet paragraph 15 of the judgment (in Kweyu's evidence) asserts the clause 6.30.6 findings are incorrect; the relationship of these clauses to the disposition is not clarified
The quantum of compensation is printed inconsistently within the same paragraph - 'Ksh.63, 285 x 3 = Ksh. 189,855' in the findings versus 'Ksh. 189. 855' in the final order
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Owino v Kenya Power & Lighting Co. Limited (Employment and Labour Relations Cause E047 of 2022) [2025] KEELRC 2169 (KLR)", Case Analysis (2025). Not stated in the judgment text provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2169/eng@2025-07-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.