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ELRCDismissedEmployment and Labour Relations Cause (number not stated in judgment; Memorandum of Claim dated 10th September 2020)

Ithelu v Proto Energy Limited (Cause E529 of 2020) [2025] KEELRC 2744 (KLR)

Employment and Labour Relations Court
8 October 2025
4,965 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~20 min to read original · ~4 min brief

The bottom line

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A Kenyan court upheld an ICT officer's dismissal for tampering with security logs, confirming employers can discipline workers without criminal charges or a show cause letter.

What this practically means

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Executive summary

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The Claimant, formerly employed as an ICT Officer Business Systems from July 2018, sued over the termination of his employment effective 6th December 2019, alleging he was dismissed on trumped-up charges of interfering with security logs without particulars or a fair hearing, and was wrongfully arrested and detained following a false report to Kabati Police Station. He sought a declaration that the termination was unfair and unlawful, 12 months' compensation of Kshs 4,200,000/=, and a certificate of service under section 51 of the Employment Act. The Respondent admitted the employment but justified the termination as gross misconduct for unauthorized access to, deletion of, and tampering with security logs while an audit investigation was ongoing, relying on a screenshot showing the SAP system was debugged by user IMUOKA, the Claimant's account. The court framed two issues: whether the termination was unfair, and whether the reliefs were payable. Applying sections 41, 43, 45 and 47(5) of the Employment Act, the court held the employer need only prove reasons it reasonably believed existed; the Claimant admitted accessing the system while his supervisor was locked out and failed to displace the IMUOKA evidence. Procedurally, although no show cause letter was issued, the charges were consistent across the suspension letter and hearing invitation, the Claimant defended himself, declined accompaniment, and did not appeal. Failure to prefer criminal charges did not bar disciplinary action. The termination was held substantively and procedurally fair; the claim was dismissed with costs, the Claimant having already been paid his terminal dues, with only a certificate of service ordered under section 51.

Questions the Court framed

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

  1. 1.Whether the Claimant was unfairly terminated by the Respondent.
  2. 2.Whether the Claimant is entitled to the reliefs sought.

Key legal issues

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01

Whether the Respondent had valid and fair reasons to terminate the Claimant's employment (substantive fairness).

Holding

Yes. The screenshot showed the system was debugged by user IMUOKA, matching the Claimant's account, and the Claimant failed to tender evidence that the user was not his; the Respondent believed the grounds of gross misconduct existed.

Reasoning

The court applied section 43 and 45 of the Employment Act, holding the employer need only show reasons it reasonably believed existed. The screenshot placed the debugging on user IMUOKA; the Claimant admitted accessing the system to address a taxation issue while his supervisor was locked out. ICT staff at the disciplinary hearing confirmed debugging of security logs was unacceptable. The Respondent lost a huge sum of money, trust was broken, and the Respondent acted as any reasonable employer would.

p. 9
02

Whether the termination accorded with fair procedure under section 41 of the Employment Act.

Holding

Yes. Although no show cause letter was issued, the Claimant knew the charges from the suspension letter, attended the disciplinary hearing, defended himself, was offered the right to be accompanied (and declined), and had a right of appeal which he did not exercise.

Reasoning

Section 41 requires notification and hearing before termination on misconduct. The court held that the absence of a formal show cause letter did not vitiate the process because the same charges appeared in the suspension letter and hearing invitation, the Claimant responded to them, and he opted not to bring a fellow employee. The three-day interval between invitation and hearing was acceptable given the Claimant's prior awareness of the allegations.

p. 9
03

Whether the Claimant was entitled to the reliefs sought (compensation, certificate of service).

Holding

The prayer for compensation failed because the termination was fair; only the certificate of service under section 51 was ordered, the terminal dues having already been paid.

Reasoning

The court noted it was not disputed that terminal dues were paid and accepted by the Claimant. Having found the termination substantively and procedurally fair, the claim for 12 months' compensation under section 49 had no foundation. The statutory entitlement to a certificate of service under section 51 survives regardless of the reason for termination, so that alone was granted.

p. 10

Legal principles established

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  • For a termination to pass the fairness test there must be both substantive and procedural fairness.
  • An employer who had reasons it reasonably believed existed at the time of termination satisfies the substantive fairness threshold; the court will not interfere.
  • Failure or omission to mount criminal charges does not bar an employer from taking disciplinary action against an employee on the same facts.
  • Omission to issue a show cause letter does not render a disciplinary process illegal so long as the employee was in substance accorded a fair hearing and knew the allegations.
  • An employee alleging unfair termination bears the burden of proving it, while the employer must justify the reasons for termination (section 47(5), Employment Act).

Court orders

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  1. 1.The Claimant's claim is dismissed with costs.
  2. 2.The Respondent to issue the Claimant with a certificate of service as per section 51 of the Employment Act.

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 (Sections 41, 43, 45, 47(5), 49, 51) over an unfair termination claim

Relief refused

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Declaration that the Claimant's termination was unfair and unlawful

The court found the termination justified both substantively and procedurally.

p. 10

Compensation of Kshs 4,200,000/= being 12 months' salary

Compensation fails as the termination was fair and the Claimant had already been paid his terminal dues.

p. 10

Costs

The Claimant's claim is dismissed with costs to the Respondent.

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 conclusion this court finds that the Claimant’s termination was justified both substantively and procedurally.
p. 10Dispositive finding on fairness
In conclusion the Claimant’s claim is found without merit and is hereby dismissed with costs. The Respondent will however issue the claimant with a certificate of service.
p. 10Final orders - dismissal with costs and certificate of service
so long as the employer had reasons they reasonably believed to have existed at the time of termination and which caused them to terminate an employee then the court would not interfere.
p. 8Standard of substantive justification
It is improper for a court to expect that an employer would have to undertake a near forensic examination of the facts and seek proof beyond reasonable doubt as in a criminal trial before it can take appropriate action subject to the requirements of procedural fairness that are statutorily required.
p. 8Standard of proof in employment disciplinary action
omission to issue a show cause letter ought not cause a whole process of disciplinary procedure to be illegal so long as the employer tried their best to give the employee a chance for a fair hearing
p. 9Effect of missing show cause letter
Criminal proceedings are however difierent from employer’s internal disciplinary proceedings and failure or omission to mount criminal charges does not bar an employer from taking out disciplinary action against an employee on the same facts.
p. 8Disciplinary action despite no criminal charges

Issues in the judgment

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material

The claimant's username is inconsistently recorded in the judgment, undermining the court's reasoning on identity of the debugging user.

minor

The judgment states both that the Claimant was suspended by a letter dated 5th November 2019 and that he was suspended on 20th November 2019.

minor

The termination letter date is inconsistent in the pleadings (6th November 2019 vs 6th December 2019), explained by the Respondent as a typing error.

minor

The heading 'Whether the Claimant was unfairly terminated by the Respondent.' is duplicated within the issues-for-determination passage.

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, "Ithelu v Proto Energy Limited (Cause E529 of 2020) [2025] KEELRC 2744 (KLR)", Case Analysis (2025). Employment and Labour Relations Cause (number not stated in judgment; Memorandum of Claim dated 10th September 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2744/eng@2025-10-08

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