Cheptoo v Kenya Power & Lighting Company Limited (Cause E042 of 2022) [2025] KEELRC 2204 (KLR)
The bottom line
#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 summary dismissal of the claimant was substantively justified under sections 43 and 44 of the Employment Act
- 2.Whether the disciplinary process accorded the claimant procedural fairness under section 41 of the Employment Act
- 3.Whether the use of the claimant's phone/M-Pesa records without disclosure amounted to an unfair labour practice
- 4.What remedies, if any, the claimant is entitled to
Key legal issues
#Substantive justification for summary dismissal
Dismissal was not justified; no evidence linked the claimant to the alleged Ksh. 28,470 from private electricians other than Salim Mpate
The audit report mentioned the claimant only as receiving Ksh. 28,470 without details. Salim Mpate did not testify. No evidence supported the allegations regarding Edlam O, J Fumba or K. Muthui, and no M-Pesa transaction details were produced. The audit process was perfunctory and suspicion cannot substitute for evidence implicating the employee.
Procedural fairness under section 41
The process was predetermined and unfair; material evidence (phone records) was withheld from the claimant
Information obtained from third parties, including mobile money transactions, should have been disclosed to the claimant for response at the disciplinary hearing. Hiding this information undermined the inquiry and amounted to an unfair labour practice contrary to Article 41 of the Constitution and section 41 of the Employment Act.
Consistency of sanctions under sections 45(5)(d) and (e)
The employer's differential treatment (warning letter for a similarly culpable employee) undermined the dismissal
The court noted that Linet Kemunto, found to have received money from private electricians, was only issued a warning letter, highlighting the requirement to consider previous practice and warning letters when assessing culpability under sections 45(5)(d) and (e).
Remedies
Six months' gross salary as compensation plus one month's notice pay; reinstatement and retirement-salary claims refused
Considering the claimant's clean record and 23 years of service, six months' gross salary (Ksh. 516,073.68) was deemed appropriate, plus notice pay of Ksh. 86,012.28. Mitigation obligations precluded salary to retirement. General and aggravated damages were not elaborated.
Legal principles established
#- Even where gross misconduct warrants summary dismissal, the employer must ensure procedural fairness by allowing the employee a defence
- The standard of proof in termination cases is on a balance of probability, and the employer must prove reasons it genuinely believed to exist
- Unfair labour practice encompasses all conduct prior to, during, and after termination of employment
- Using an employee's phone records against them without a fair opportunity to review is unconstitutional and unlawful
Court orders
#- 1.A declaration that employment was terminated unfairly
- 2.Compensation of Ksh. 516,073.68 (six months' gross salary)
- 3.Notice pay of Ksh. 86,012.28
- 4.Each party to bear its 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 under the Employment Act and Article 41 of the Constitution
Relief refused
#Reinstatement or salary until retirement (Ksh. 14,450,079)
An unfairly dismissed employee is expected to mitigate loss by seeking new opportunities
General damages and aggravated/exemplary damages
Claim was pleaded but not elaborated
Costs
Each party shall bear its 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.
No evidence is presented to support these allegations, and the details regarding access to the M-Pesa transactions leading to the claims are not provided. The audit process seeking to establish the revenue loss of Ksh.41 million ended up being perfunctory, and the claimant was assigned a loss of Ksh.28,470.
Access to the employee's phone records for use as evidence against the subject employee without providing the employee a fair opportunity to review the documents and make an informed response is both unconstitutional and unlawful.
The genuine belief that an employee has committed gross misconduct warranting summary dismissal is not a casual determination. Evidence must directly implicate the employee, and the employer should establish this connection.
Accordingly, judgment is hereby entered for the claimant against the respondent in the following terms: a. A declaration that employment was terminated unfairly, b. Compensation Ksh. 516,073.68, c. Notice pay Ksh. 86,012.28, d. Each party to bear its costs.
Issues in the judgment
#Arithmetic inconsistency in the pleaded salary arrears claim
Discrepancy in the amount allegedly received from Salim Mpate between pleadings
Inconsistent descriptions of the claimant's position (clerk vs Front Desk Operations specialist vs assistant mate assistant)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Cheptoo v Kenya Power & Lighting Company Limited (Cause E042 of 2022) [2025] KEELRC 2204 (KLR)", Case Analysis (2025). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2204/eng@2025-07-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.