Erick Lilungo Mukhwami v Kenya Electricity Transmission Company Limited

for the position of Electrical Craftsman. He avers that the officer informed him that as a consequence, the Respondent had issued him with a notice to show cause letter. 4. The Claimant avers that this development forced him to cut short his leave in order to address the issue. He avers that despite the short notice which the Respondent gave him, he managed to put in a response to the show cause letter. 5. The Claimant avers that the Respondent accused him of having forged his academic transcript for the year 2014 so that it could show that he had passed one of the modules when, in fact, he had been referred for a re-sit. The Claimant denies this accusation. He avers that he did not submit a forged transcript as alleged. 6. The Claimant contends that at the time he applied for engagement with the Respondent, he had sat for but not passed all the modules for the conferment of a Diploma in Electrical & Electronic Engineering. However, he avers that he had qualified for the position of Electrical Craftsman. 7. The Claimant avers that he successfully completed the training for the conferment of a Diploma in Electrical & Electronic Engineering soon after the Respondent recruited him to the position of Electrical Craftsman. He ELRC CAUSE NO E017 OF 2024 2

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contends that he subsequently submitted the Diploma Certificate to the Respondent. 8. The Claimant avers that although his academic testimonials in the Respondent’s possession were in order, he was urged by a colleague to admit the charge of forgery of the said testimonials after the Respondent issued him with the impugned show cause letter. He contends that the colleague informed him that this was necessary in order for the Respondent to drop the case against him. As such, he asserts that the admission of forgery in the response to the show cause letter was procured through coercion and or inducement and not through his freewill. 9. In the premises, the Claimant asserts that it was wrong for the Respondent to rely on his response to the show cause to find him guilty of the infractions he was accused of. He, in any event, avers that the Respondent did not share with him the letter from the Kenya National Examination Council which allegedly indicated that some of his testimonials were forged. 10. The Claimant further avers that the Respondent did not supply him with a copy of the minutes of the disciplinary hearing to enable him to file a proper appeal against the decision of the Disciplinary Committee. As such, he contends that the disciplinary process against him was flawed. ELRC CAUSE NO E017 OF 2024 3

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11. In response, the Respondent avers that the Claimant presented a falsified transcript for one of the modules he sat for in 2014. The Respondent contends that it only realized this when the Kenya National Examination Council wrote to it (the Respondent) stating that one of the Claimant’s transcripts had been falsified. 12. The Respondent avers that after the Kenya National Examination Council flagged the falsified document, it (the Respondent) issued the Claimant a show cause letter asking him to account for the falsification. In response, it avers that the Claimant admitted the forgery and pleaded for forgiveness. As such, it (the Respondent) avers that the decision to terminate the Claimant’s services was anchored on his own admission of wrongdoing. 13. The Respondent avers that after the Disciplinary Committee returned a verdict of guilty against the Claimant, he was accorded a chance to appeal the decision. However, it avers that he lost the appeal. As such, it contends that the decision to terminate the Claimant’s service was based on legitimate grounds and was processed in accordance with fair procedure. Issues for Determination 14. After evaluating the pleadings, evidence and submissions by the parties, the following issues arise for determination:- ELRC CAUSE NO E017 OF 2024 4

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a) Whether the Respondent had legitimate reasons to terminate the Claimant’s employment and whether the decision was processed in accordance with fair procedure. b) Whether the Claimant is entitled to the reliefs which he seeks through this action. Analysis 15. On the first issue, the evidence on record shows that the Respondent advertised the position of Electrical Craftsman on 18th November 2016 through a newspaper advertisement. The evidence further shows that the Claimant applied for the position through his letter dated 2nd December 2016. 16. The Claimant attached to the application his Curriculum Vitae (CV) which stated that he had attained the qualifications of a Diploma in Electrical and Electronics (Power Option) from the Railway Training Institute. The CV shows that he undertook the diploma training between 2011 and 2014. 17. The evidence tendered by the Respondent further shows that the Claimant submitted a results slip for November 2014 which shows that he had sat for and passed various modules including module number 304 on power electronics, machines and utilization. It is this transcript which the Respondent contends was forged. ELRC CAUSE NO E017 OF 2024 5

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18. In his evidence, the Claimant tendered a similar transcript which was issued by the Railway Training Institute but which shows that he had not passed the aforesaid module. The document shows that he was to re-sit the paper. The Claimant also tendered in evidence another transcript dated July 2017 from Vitech Training Institute which shows that he sat and passed the paper sometime that month (July 2017). 19. The Claimant appears to deny knowledge of the transcript allegedly issued to him by the Railway Training Institute in November 2014 showing that he had been successful in the contested module. Yet, in his response to the show cause letter, he admitted having lodged the falsified document with the Respondent in a bid to secure employment. 20. Despite the aforesaid admission, the Claimant now seeks to disown the contents of his response to the show cause letter by alleging that a colleague advised him to admit the charges against him. He thus contends that the response was coerced and or induced. 21. However, it is noteworthy that the colleague who allegedly coerced him (the Claimant) to admit the infraction under inquiry testified on oath and denied the assertion. The colleague stated that he was not in a position to exert the alleged pressure on the Claimant since he was not his (the ELRC CAUSE NO E017 OF 2024 6

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Claimant’s) supervisor and the two were not working in the same department. 22. The Claimant cannot run away from the fact that he admitted the charge of falsification of the impugned transcript in his response to the show cause letter. His attempt to argue that the admission was procured through coercion cannot fly as there is no evidence that the Respondent exerted any pressure on him to tender the admission. The fact that he sought advice from a colleague, if at all, on how to respond to the show cause letter cannot imply coercion on him to respond to the letter in the way that he did. 23. Having regard to the fact that the Claimant admitted the infraction of having falsified the impugned transcript in his response to the letter of show cause, the court finds that the Respondent had a legitimate ground to find him guilty of the infraction under inquiry in terms of sections 41 and 43 of the Employment Act. The Claimant having admitted the infraction, the Respondent was under no obligation to tender further evidence to prove the admitted charge. 24. The Claimant accuses the Respondent of not having shown him evidence of the letter from the Kenya National Examination Council which stated that the transcript under inquiry was falsified. However, I do not think that anything turns on this. What was this evidence supposed ELRC CAUSE NO E017 OF 2024 7

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to serve in the face of the Claimant’s admission of the charge in his response to the show cause? 25. In the court’s view and having regard to the fact that the Claimant admitted the charge of forgery in his response to the show cause letter, the Respondent was within its right to terminate his services. The disciplinary hearing and the appeal process were merely intended to ensure due process even though the charge had already been admitted. 26. The Claimant has prayed for a series of reliefs as set out in the Statement of Claim. They include: a declaration that the termination of his contract of service was unlawful; an order for his reinstatement to work; pay for accrued leave days; salary for October 2023; compensation for unfair termination of his contract of service; one month’s salary in lieu of notice to terminate his contract; general damages for violation of his rights; certificate of service; costs of the suit; and interest. 27. As noted earlier, the decision by the Respondent to terminate the Claimant’s services was founded on his own admission of the infraction he was accused of. Despite this admission, the Respondent still accorded him an opportunity to be heard. As such, the Respondent’s decision was both substantively and procedurally justified. 28. The foregoing being the case, the Claimant is not entitled to the following reliefs: a declaration that his contract of ELRC CAUSE NO E017 OF 2024 8

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service was improperly terminated; payment in lieu of notice to terminate his contract; reinstatement back to work; and compensation for wrongful termination of his contract. As such, these reliefs are declined. 29. The claim for general damages for violation of the Claimant’s rights is not supported by evidence. The evidence on record shows that after the Claimant was accused of having presented falsified documents to the Respondent, he was subjected to a disciplinary hearing where he was heard and admitted the charge. It is only after this that the Respondent terminated his services. 30. Despite the fact that the Claimant admitted the charge against him, he appealed the decision to terminate his services. However, the record shows that the appeal was rejected for, inter alia, the reason that he had admitted the accusations against him. 31. In the court’s view, the Claimant having admitted the infraction against him, he had no legitimate grounds to sustain his appeal. As such, the appeal was properly declined. 32. Having regard to the foresaid, it is apparent that the decision to terminate the Claimant’s services was lawfully processed and there was no violation of his rights. Accordingly, the plea for general damages for violation of his rights is declined. ELRC CAUSE NO E017 OF 2024 9

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33. The Claimant has prayed for pay in lieu of his accrued annual leave days for 2023. However, he conceded that at the time he was issued with the show cause letter in August 2023, he was already on his annual leave for 2023. Further, the Respondent tendered in evidence leave data to demonstrate that the Claimant took his accrued annual leave days up to the point of their separation. 34. The Claimant did not present any evidence to controvert the aforesaid data on the status of his annual leave for 2023. That being the case, the claim for accrued leave days fails. 35. The Claimant has claimed for salary for October 2023. However, evidence on record shows that his services were terminated with effect from 18th October 2023. As such, he is only entitled to salary for the 17 days he was in service in October 2023. Accordingly, the Respondent is directed to compute and make payments for the 17 days. Determination 36. The upshot is that the court arrives at the conclusion that the contract of service between the parties was terminated for a proper reason and in accordance with due process. 37. As such, the Claimant is not entitled to the reliefs which he seeks through this suit save for his salary for 17 days worked in October 2023 and a certificate of service. ELRC CAUSE NO E017 OF 2024 10

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38. Accordingly, the Respondent is ordered to compute and remit to the Claimant salary for the 17 days he was in service in October 2023. 39. The Respondent is also ordered to issue the Claimant with a Certificate of Service in terms of section 51 of the Employment Act. 40. Other than the two reliefs which have been granted, the rest of the suit is dismissed. 41. Each party shall bear own costs of the suit. Dated, signed and delivered on the 24th day of September, 2026 B. O. M. MANANI JUDGE In the presence of: …………….for the Claimant …………….for the Respondent ORDER In light of the directions issued on 12 th July 2022 by her Ladyship, the Chief Justice with respect to online court proceedings, this decision has been delivered to the parties online with their consent, the parties having waived compliance with Rule 28 (3) of the ELRC Procedure Rules which requires that all judgments and ELRC CAUSE NO E017 OF 2024 11

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rulings shall be dated, signed and delivered in the open court. B. O. M MANANI ELRC CAUSE NO E017 OF 2024 12

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