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ELRCPartially AllowedMemorandum of Claim dated 21st September 2023 (ELRC, Nakuru)

Mabatuk v Safaricom Plc (Employment and Labour Relations Cause E047 of 2023) [2025] KEELRC 2628 (KLR)

Employment and Labour Relations Court
26 September 2025
4,458 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The Claimant, a BSS Engineer employed by the Respondent from 15th May 2014 and earning Kshs.511,322.58 gross monthly, was summarily dismissed by letter dated 1st August 2022 following the disappearance and illegal sale of 96 recovered solar site batteries in the Busia cluster. He was issued a show cause letter on 14th June 2022, responded to it, attended a disciplinary hearing on 7th July 2022, and appealed unsuccessfully. He sought declarations that the dismissal was wrongful and unfair, reinstatement or in the alternative compensation of 12 months' gross salary, one month's pay in lieu of notice, exemplary and punitive damages totalling Kshs.30 million, remission of statutory deductions, costs and interest. The Respondent maintained that the dismissal was substantively and procedurally fair. The court framed three issues: whether the dismissal was fair and lawful; entitlement to relief; and costs. Applying sections 41, 43, 45 and 47(5) of the Employment Act, the court found the Respondent failed to prove valid and fair reasons for the dismissal. The allegations kept shifting, the charge of receiving Kshs.86,000/= was dropped for want of evidence, Mr. Ratemo who made the key allegations was not called as a witness, no clear job description was produced, and two conflicting termination letters were issued the same day. The court held the dismissal was unfair and awarded compensation of 10 months' gross salary (Kshs.5,113,225/80) plus one month's salary in lieu of notice (Kshs.511,322/58), totalling Kshs.5,624,548/60, with costs and interest at 14% per annum from the date of judgment until full payment. All other prayers, including reinstatement and exemplary and punitive damages, were declined.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Respondent summarily dismissed the Claimant fairly and lawfully.
  2. 2.If (a) above is affirmative, whether the Claimant is entitled to the relief sought
  3. 3.Who should bear the costs of the suit?

Key legal issues

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01

Whether the Respondent proved valid and fair reasons for the summary dismissal

Holding

The Respondent failed to demonstrate a valid reason; judgment entered for the Claimant.

Reasoning

The reasons for termination shifted: the show cause letter alleged misappropriation and receipt of Kshs.86,000/=, but that charge was dropped for want of evidence. Mr. Ratemo, the maker of the key allegations, was not called to testify. No clear job description was produced to establish the Claimant's supervisory role, and the team leader who also knew of the battery transfers was not disciplined. The court found the Respondent was fishing for a reason to terminate.

p. 9
02

Whether the disciplinary and dismissal procedure was fair

Holding

Procedural fairness could not be confirmed where the grounds were inconsistent, including two conflicting termination letters issued the same day.

Reasoning

Although the Claimant received a show cause letter, responded, attended a disciplinary hearing and appealed, the allegations kept changing and were not clearly stipulated. Two termination letters dated the same day were issued. The court held that even where disciplinary proceedings occur, fair procedure cannot be confirmed unless the reasons are clearly communicated to enable preparation of a defence.

p. 8
03

What remedies flow from the unlawful termination

Holding

Compensation equivalent to 10 months' gross salary plus one month's salary in lieu of notice, with costs and interest.

Reasoning

The court found the 10-month award reasonable compensation in the circumstances, considered the Claimant's close to 10 years of service and prior recognition, and declined all other prayers including reinstatement, exemplary and punitive damages, awarding only one month's salary in lieu of notice.

p. 9

Legal principles established

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  • A valid dismissal must meet both substantive justification and procedural fairness under sections 43 and 41 of the Employment Act.
  • Fair procedure cannot be confirmed if the reasons for termination are not clearly stipulated to the employee.
  • Evidence of an alleged accomplice not called as a witness carries little weight.

Court orders

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  1. 1.General damages for unlawful termination equivalent to 10 months' salary totalling Kshs.5,113,225/80.
  2. 2.One month's salary in lieu of notice of Kshs.511,322/58.
  3. 3.Total award of Kshs.5,624,548/60.
  4. 4.Costs of the suit to the Claimant.
  5. 5.Interest at 14% per annum from the date of judgment until full payment.

The bench

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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, 2007 (sections 41, 43, 45, 47(5), 49) and Article 41 of the Constitution

Relief refused

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Declaration that dismissal was wrongful, unfair, unconstitutional and unlawful, null and void ab initio

The court awarded compensation instead, holding the 10-month award reasonable.

p. 9

Reinstatement or re-engagement with back pay

Declined in favour of monetary compensation.

p. 9

Exemplary damages of Kshs.10,000,000

Declined as general damages award was deemed reasonable.

p. 9

Punitive damages of Kshs.20,000,000

Declined.

p. 9

Order for remission of statutory deductions for the duration of the dismissal

Declined with the other prayers.

p. 9

Costs

He is also awarded costs and interest at 14% per annum from date of judgment till full payment.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The court therefore finds the Respondent did not demonstrate a valid reason for terminating the Claimant. It beholves the court to enter judgment in favour of the Claimant.
p. 9Failure to prove valid reason for termination
Frankly in this case it is like the Respondent was fishing for a reason to terminate the Claimant.
p. 8Shifting grounds for dismissal
Even if the Claimant was taken through disciplinary proceedings fair procedure cannot be confirmed if the reasons for termination are not clearly stipulated to the Claimant to enable him prepare properly for his defence.
Procedural fairness and clear stipulation of grounds
He is also awarded costs and interest at 14% per annum from date of judgment till full payment.
p. 9Final orders - costs and interest

Issues in the judgment

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minor

The loss figure varies across the judgment (Kshs.2,625,365/=; Kshs.2,625,356/16; Kshs.2,625,856/16).

minor

The disciplinary hearing date is inconsistently stated as 7th July 2022 in the pleadings section and 26th July 2022 in the analysis.

minor

The exhibit number for the Claimant's document list is stated as dated 21st September 2024, which post-dates the supplementary statements of 2024 and appears to be a typographical error.

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, "Mabatuk v Safaricom Plc (Employment and Labour Relations Cause E047 of 2023) [2025] KEELRC 2628 (KLR)", Case Analysis (2025). Memorandum of Claim dated 21st September 2023 (ELRC, Nakuru). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2628/eng@2025-09-26

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