Mbeka v Kenya Power & Lighting Co. Ltd (Cause E008 of 2025) [2025] KEELRC 2283 (KLR)
The bottom line
#A Kenyan court ruled Kenya Power fairly dismissed a driver for missing materials but unfairly withheld the evidence against him, awarding partial compensation.
What this practically means
#Executive summary
#Key legal issues
#Substantive justification for termination
The respondent proved a valid and fair reason - the claimant collected materials from the stores which were unaccounted for and adduced no evidence of delivery or of whistle-blowing
Section 43(1) places the burden on the employer to prove reasons for termination, applying a balance of probability standard and the range of reasonable responses test. The claimant admitted collecting the materials but could not show delivery to the designated sites; his plea of ignorance as a 'mere driver' failed because he was an Artisan Mate and non-designated driver of long service. His whistle-blowing allegation was unsubstantiated, with no email availed. A reasonable employer would have acted the same way.
Procedural fairness of the disciplinary process
Although the respondent substantially complied with Section 41, its failure to avail the investigation report, witness statements and accountability documents vitiated the process, rendering the termination procedurally unfair
The claimant received the notice to show cause, responded, was heard with two witnesses and had a right of appeal which he exercised. However, the case against him was grounded exclusively on Investigation Report No. 18-2022/2023, including Mpesa statements implicating him, which he was never confronted with for rebuttal. Non-availment of documents and witness statements impedes preparation of a defence and offends the right to fair hearing, applying JSC v Mbalu Mutava and Postal Corporation v Tanui.
Entitlement to reliefs
Declaration of unfair termination, two months' salary as compensation under Section 49(1)(c) and gratuity per the CBA awarded; notice pay, salary arrears, leave and exemplary damages declined
Compensation under Section 49(1)(c) read with Section 45(4) was assessed at two months' gross salary given about 15 years of service and the appeal, but reduced for prior disciplinary history, warnings and the claimant's substantial contribution to his dismissal. Gratuity was payable per the CBA incorporated into his contract under Section 59(5) of the Labour Relations Act. Notice pay failed as summary dismissal was substantively justified; arrears, leave and exemplary damages lacked particulars or proof.
Legal principles established
#- For a termination to pass the fairness test there must be both substantive justification and procedural fairness
- The employer's standard of proof is on a balance of probability, not beyond reasonable doubt, as to reasons it genuinely believed to exist
- Availing to the employee the evidence the employer intends to rely on is a basic tenet of the right to fair hearing; non-availment vitiates the process
- Terms of a registered CBA are incorporated into the contracts of employment of all unionisable employees under Section 59(5) of the Labour Relations Act
Court orders
#- 1.Declaration that termination of employment was unfair
- 2.Equivalent of two (2) months salary Kshs.172,810.00
- 3.Gratuity as per the terms of the CBA
- 4.Interest at court rates from date of judgment till payment in full
- 5.Each party to bear their own costs
- Jurisdiction invoked
- Original employment and labour relations jurisdiction of the Employment and Labour Relations Court (Employment Act claims); judgment delivered under Article 159(2)(d) and Article 48 of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Hakika Transport Services Limited v Musango (Appeal E059 of 2025) [2025] KEELRC 2536 (KLR)[2025] KEELRC 2536 (KLR)25 Sept 2025applied
Cite this brief
#Cite this brief
Caselaw, "Mbeka v Kenya Power & Lighting Co. Ltd (Cause E008 of 2025) [2025] KEELRC 2283 (KLR)", Case Analysis (2025). Not stated in the judgment (suit commenced 18th February, 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2283/eng@2025-07-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.