Ithelu v Proto Energy Limited (Cause E529 of 2020) [2025] KEELRC 2744 (KLR)
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Claimant was unfairly terminated by the Respondent.
- 2.Whether the Claimant is entitled to the reliefs sought.
Key legal issues
#Whether the Respondent had valid and fair reasons to terminate the Claimant's employment (substantive fairness).
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.
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.
Whether the termination accorded with fair procedure under section 41 of the Employment Act.
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.
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.
Whether the Claimant was entitled to the reliefs sought (compensation, certificate of service).
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.
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.
Legal principles established
#- 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
#- 1.The Claimant's claim is dismissed with costs.
- 2.The Respondent to issue the Claimant with a certificate of service as per section 51 of the Employment Act.
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 (Sections 41, 43, 45, 47(5), 49, 51) over an unfair termination claim
Relief refused
#Declaration that the Claimant's termination was unfair and unlawful
The court found the termination justified both substantively and procedurally.
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.
Costs
The Claimant's claim is dismissed with costs to the Respondent.
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.
In conclusion this court finds that the Claimant’s termination was justified both substantively and procedurally.
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.
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.
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.
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
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.
Issues in the judgment
#The claimant's username is inconsistently recorded in the judgment, undermining the court's reasoning on identity of the debugging user.
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.
The termination letter date is inconsistent in the pleadings (6th November 2019 vs 6th December 2019), explained by the Respondent as a typing error.
The heading 'Whether the Claimant was unfairly terminated by the Respondent.' is duplicated within the issues-for-determination passage.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.