Margaret Auma Ingwe v Kenya Power and Lighting Co. Ltd [2015] KEELRC 1032 (KLR)
The bottom line
#A cashier wrongly fired over a cash handover won compensation because Kenya Power gave her only one day to prepare her defence.
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 reason for summarily dismissing the Claimant
- 2.Whether in effecting the dismissal the Respondent observed due procedure
- 3.Whether the Respondent has made out a proper counterclaim against the Claimant
Key legal issues
#Valid reason for summary dismissal under Section 43
The Respondent had a valid reason - the Claimant handed over company funds entrusted to her to unknown persons without authority and failed to report the threat
Section 43 places the burden on the employer to demonstrate, on a balance of probability, a valid reason that would move a reasonable employer to terminate. It was common cause the Claimant handed over the funds; the issue was whether lawful and reasonable. Her failure to report the threat despite a secured station and an established chain of command meant the dismissal was substantively fair.
Effect of criminal acquittal on disciplinary proceedings
Acquittal does not bar or invalidate an employer's internal disciplinary process
A criminal trial and internal disciplinary proceedings are distinct processes with different procedural and standards of proof. An employer may rely on or go against the outcome of a criminal trial without that rendering its decision wrongful, and it must conclude its own process rather than abdicating it to the criminal prosecution.
Procedural fairness under Section 41
The dismissal was procedurally unfair because the Claimant was not given adequate time to prepare her defence
The disciplinary hearing invitation letter was served only the day before the hearing, and the Claimant's representatives and witnesses were excluded because their names were submitted past a deadline. This denied her the opportunity to prepare and present her defence contemplated by Section 41 and the CBA.
Respondent's counterclaim
The counterclaim for Kshs.642,618.00 was allowed as the Claimant's conduct in handing over the money was wrongful
The Claimant admitted handing over the funds entrusted to her. Having found that her action was wrongful despite the substantive fairness of termination, the Court held the Respondent entitled to recover the lost sum from her.
Legal principles established
#- An acquittal in a criminal case does not automatically render an employee immune to internal disciplinary action by an employer, the two being distinct processes with different standards of proof
- An employer cannot rely on the pendency of a criminal trial to keep an employee under discipline indefinitely; it must conclude its own disciplinary process
- Under Section 41 of the Employment Act, an employee facing disciplinary action must be afforded sufficient time to prepare and present a defence, including calling witnesses
Court orders
#- 1.8 months' salary in compensation for unfair termination (Kshs.718,144.00)
- 2.1 month's salary in lieu of notice (Kshs.89,768.00)
- 3.Total award of Kshs.807,912.00 in favour of the Claimant
- 4.Claimant's claims for reinstatement, unpaid salaries and money withheld dismissed
- 5.Respondent's counterclaim for Kshs.642,618.00 allowed
- 6.Each party to bear their 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 under the Employment Act, 2007 over unfair termination claim
Relief refused
#Reinstatement without loss of benefits and salary arrears
Reinstatement is granted only in exceptional circumstances; the valid reason found for termination puts it beyond the Claimant's reach
Unpaid salaries (June 2012 - December 2017) and money withheld
No basis established for those heads
Costs
Each party will bear their 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.
an acquittal in a criminal case does not automatically render an employee immune to disciplinary action by an employer
In considering a claim for unlawful and unfair termination therefore, the Court does not ask itself what action it would have taken if it had been in the position of the employer; it asks whether in the circumstances of the case before it, the employer acted lawfully and reasonably
The dictates of Section 41 of the Employment Act are not empty procedures. They are intended to avail employees facing disciplinary action an opportunity to prepare and present their defence before disciplinary action is taken against them
In light of the finding that her action was wrongful, the Respondent's counterclaim for the sum of Kshs. 642,618 is allowed
Each party will bear their own costs.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Margaret Auma Ingwe v Kenya Power and Lighting Co. Ltd [2015] KEELRC 1032 (KLR)", Case Analysis (2015). Cause No 263 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/1032/eng@2015-06-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.