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Case Brief · caselaw.co.ke
ELRCPartially AllowedNot stated in the judgment (suit commenced 18th February, 2025)

Mbeka v Kenya Power & Lighting Co. Ltd (Cause E008 of 2025) [2025] KEELRC 2283 (KLR)

Employment and Labour Relations Court
31 July 2025
6,322 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~25 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The claimant, an Artisan Mate and non-designated driver employed by the respondent from 2011, was summarily dismissed on 18th August 2023 after an internal investigation found he had collected over 217,000 metres of 50mm conductor worth about Kshs.11 million for donor-funded KPLC schemes (Huma Village and Geta Primary last mile) which could not be accounted for. He sued for declarations, 12 months' compensation, gratuity, notice pay, salary arrears, leave and exemplary damages, contending the dismissal was procedurally and substantively unfair and retaliatory for whistle-blowing. The court framed two issues: fairness of the termination and entitlement to reliefs. On substance, applying Section 43(1) and the range of reasonable responses test, the court held the respondent proved a valid and fair reason on a balance of probability: the claimant admitted collecting the materials but produced no evidence of delivery or of reporting his concerns, and his plea of ignorance failed given his seniority and experience. On procedure, the court found the respondent substantially complied with Section 41 - notice to show cause, response, hearing with witnesses and appeal - but vitiated the process by failing to avail the investigation report, witness statements and accountability documents it relied on, offending the right to fair hearing; the termination was therefore procedurally unfair. The court granted a declaration of unfair termination, compensation equivalent to two months' gross salary (Kshs.172,810) under Section 49(1)(c), and gratuity per the CBA, with interest. Notice pay, salary arrears, leave and exemplary damages were declined for lack of merit or particulars. Each party was ordered to bear its own costs. Judgment was delivered virtually at Kisumu on 31st July 2025 by Dr. Jacob Gakeri, Judge.

Questions the Court framed

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

  1. 1.Whether termination of the claimant's employment was fair/lawful
  2. 2.Whether the claimant is entitled to the reliefs sought

Key legal issues

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01

Substantive justification for termination

Holding

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

Reasoning

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.

p. 9
02

Procedural fairness of the disciplinary process

Holding

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

Reasoning

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.

p. 12
03

Entitlement to reliefs

Holding

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

Reasoning

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.

p. 13

Legal principles established

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  • 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

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  1. 1.Declaration that termination of employment was unfair
  2. 2.Equivalent of two (2) months salary Kshs.172,810.00
  3. 3.Gratuity as per the terms of the CBA
  4. 4.Interest at court rates from date of judgment till payment in full
  5. 5.Each party to bear their own costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

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

Relief refused

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Pay in lieu of notice (Kshs.255,000.00)

Termination was substantively justifiable and Section 44(1) permits summary termination without notice

p. 12

Salary arrears (Kshs.255,000.00)

No particulars of when the arrears accrued; claim unsubstantiated

p. 12

Leave (Kshs.425,000.00)

Claim lacked essential details - number of unutilized leave days and when they accrued; no oral evidence

p. 12

Exemplary damages

No evidence of entitlement to exemplary damages under the Rookes v Bernard categories

p. 13

12 months' compensation (Kshs.1,020,000.00)

Awarded only two months' gross salary considering long service, prior disciplinary record and the claimant's contribution to the termination

p. 13

Costs

Parties shall bear their own costs

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.

In the upshot, judgment is entered in favour of the claimant against the respondent in the following terms. a. Declaration that termination of employment was unfair. b. Equivalent of two (2) months salary Kshs.172,810.00 c. Gratuity as per the terms of the CBA. d. Interest at court rates from date hereof till payment in full. Parties shall bear their own costs.
p. 13Final orders/disposition
It is the finding of the court that the respondent has proved that it had a valid and fair reason to terminate the claimant's employment.
p. 9Substantive justification
Applying the test in Section 45(4) and (5) of the Employment Act, it is the finding of this court that termination of the claimant's employment by the respondent was procedurally unfair within the meaning of Section 45 of the Act.
p. 12Procedural unfairness
It is trite law that availment to the employee of evidence an employer intends to rely on in a case involving the employee is a basic tenet of the right to fair hearing.
p. 11Right to fair hearing
The standard of proof is on a balance of probability, not beyond reasonable doubt, and all the employer is required to prove are the reasons that it "genuinely believed to exist," causing it to terminate the employee's services.
p. 9Standard of proof under Section 43
once a CBA is executed by the parties and registered by the Employment and Labour Relations Court, its terms are incorporated into the contracts of employment of all unionisable employees and the parties are bound by its terms by dint of Section 59(5) of the Labour Relations Act.
p. 12Incorporation of CBA terms

Issues in the judgment

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minor

Dates inconsistencies in the judgment: disciplinary hearing invitation letter dated/received '5th July, 2025' though hearing was 10th July 2023; employment start stated as 2008 by claimant, 1st July 2011 by respondent, and '13th June, 2011' as common ground; claimant's cross-examination admission of collecting '30000 meters' vs elsewhere '3000 meters'

minor

The judgment states a test under 'Section 45(4) and (5) of the Employment Act' for procedural fairness, while Section 45(5) is not otherwise discussed

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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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.