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ELRCPartially Allowed· [2025] KEELRC 2204 (KLR)

Cheptoo v Kenya Power & Lighting Company Limited (Cause E042 of 2022) [2025] KEELRC 2204 (KLR)

Employment and Labour Relations Court
24 July 2025
MMM. Mbarũ
2,907 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, employed by the respondent from November 1997 and most recently as a Front Desk Operations specialist earning Ksh. 86,012.38, was summarily dismissed on 4 February 2020 on allegations that she was part of a network collecting money from customers and that she received Ksh. 28,470 from private electricians in the context of irregular rebilling and unprocedural meter changes in the coast region, where the respondent allegedly lost over Ksh. 41 million. She sought reinstatement, or alternatively salary to retirement, general and aggravated damages, and costs. The court found the dismissal substantively and procedurally unfair. The audit report mentioned her only twice, without details of the alleged payments, and only Salim Mpate was named in the audit; he did not testify, and no evidence supported the allegations regarding the other named persons. The court held that the employer's use of the claimant's phone and M-Pesa records without disclosing them to her for response was unconstitutional and unlawful, contrary to Article 41 of the Constitution and section 41 of the Employment Act, and that the disciplinary process was predetermined. Differential treatment of a similarly culpable employee, who received only a warning, was also noted. Reinstatement and salary to retirement were refused on mitigation grounds, as were unelaborated general and aggravated damages. The court awarded a declaration of unfair termination, six months' gross salary (Ksh. 516,073.68) as compensation, and notice pay of Ksh. 86,012.28, with each party to bear its own costs. Judgment was delivered at Mombasa on 24 July 2025 by M. Mbarũ, J.

Key legal issues

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01

Substantive justification for summary dismissal

Holding

Dismissal was not justified; no evidence linked the claimant to the alleged Ksh. 28,470 from private electricians other than Salim Mpate

Reasoning

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.

p. 5
02

Procedural fairness under section 41

Holding

The process was predetermined and unfair; material evidence (phone records) was withheld from the claimant

Reasoning

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.

p. 6
03

Consistency of sanctions under sections 45(5)(d) and (e)

Holding

The employer's differential treatment (warning letter for a similarly culpable employee) undermined the dismissal

Reasoning

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).

p. 5
04

Remedies

Holding

Six months' gross salary as compensation plus one month's notice pay; reinstatement and retirement-salary claims refused

Reasoning

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.

p. 6

Legal principles established

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  • 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

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  1. 1.A declaration that employment was terminated unfairly
  2. 2.Compensation of Ksh. 516,073.68 (six months' gross salary)
  3. 3.Notice pay of Ksh. 86,012.28
  4. 4.Each party to bear its costs
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act and Article 41 of the Constitution

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, "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.