The respondent employed the claimant through a contract dated 1 February 2019 as a technician in the Customer Care Division of the Coast Region. He was earning Ksh. 107,878 per month.
The claimant's employment history is as follows: in 2019, they were first employed as an installation inspector by the respondent, and subsequently attained permanent employment as a technician, after which a written contract was issued. His work site was at Electricity House, Mombasa.
In September 2019, the claimant was summoned before the internal auditors to answer to audit queries relating to his work and alleged involvement in rebilling and unprocedural meter change discovered during the audit investigations. The claimant was charged that;
- You retrofitted account 2611482 belonging to Kenneth Maina in Nyali irregularly.
- You received Ksh. 91,173 from private lecturers as follows
- Ksh.8,083 from J Barasa,
- Ksh.1,000 from K. Kiragu,
- Ksh.84, 060 from Michael Odhiambo.
The claim is that the charges were framed without a factual basis and were premeditated to result in a summary dismissal, as issued on 7 February 2020. There was no due process, and the respondent relied on hearsay and illegally collected evidence, as well as M-Pesa statements, to suit its case. There were over 37 employees accused of various allegations, but the claimant was targeted without proof or justification.
The claimant is seeking an order of reinstatement to his employment and back payments for 28 months. Alternatively, payment for 120 months to retirement at 60 years. In the alternative, payment of terminal dues and benefits for 148 months;
- Order of reinstatement,
- Back payment for 28 months Ksh. 3,020,584,
- Salary for 120 months to retirement Ksh 12,945,360,
- Terminal dues for 148 months Ksh. 15,965,944.
- General damages
- Aggravated damages,
- Costs.
The claimant relied on his documents.
In response, the respondent admitted that the claimant was employed through a contract dated 1 February 2019 as a technician. Following an internal audit report dated 9 December 2019, the respondent invited the claimant to respond. The claimant’s allegations that he had no authority to initiate any work process unless instructed by his supervisor were without evidence.
The claimant was invited to show cause why disciplinary action should not be taken against him through a letter dated 18 December 2019. His explanations were not satisfactory. On 6 January 2020, he was invited to a disciplinary hearing and was found culpable; he was dismissed on 7 February 2020. He filed an appeal, which was dismissed.
The respondent followed due process and established that the claimant had retrofitted account No. 26211482 belonging to Kenneth Maina in Nyali irregularly. He received Ksh.97, 173 from private electricians. This was conduct contrary to the policy and the law, and the claimant did not provide justifiable explanations.
In evidence, the respondent called John Tollah, an internal auditor, who testified that following an internal audit, the team established that the claimant, as a technician, retrofitted the electricity account No. 26211482 belonging to Kenneth Maina in Nyali irregularly and received Ksh. 97,173 from private electricians.
- Ksh.8,083 from J Barasa,
- Ksh.1,000 from K. Kiragu,
- Ksh.84, 060 from Michael Odhiambo.
Based on the report dated 9 December 2019, the respondent discovered that Kenneth Maina Kobia, a driver based at the Busia branch, had not had his electricity meter read since November 2017, following the changeover from the legacy system, on account No. 26211482. On 7 March 2019, the reading was obtained, and he was billed Ksh. 68,081, but the account was later rebilled, retrofitted and postpaid to conceal the closing reading.
Based on investigations, it was discovered that on 3 May 2019, Caroline Marongo raised a correct reading provided by the technician, Fred Mwakina and billed the account with Ksh. 68,081.
On 22 May 2019, the claimant reduced the bill by 520 units, Ksh. 14,937, purporting to the reading of 11,114 provided by the customer, Kenneth Kobia, who sent Ksh. 2,000 to Silas Shinaka.
The respondent was able to obtain the RCCS details for the transaction.
On 5 June 2019, Kenneth Kobia sent Ksh. 12,000 to Silas Shinaka, and part of the money, Ksh. 3,000 was sent to the claimant to facilitate the retrofitting and the removal of the postpaid meter, to conceal evidence.
On 12 June 2019, the claimant requested that Eghwa Kichinda raise an RCCS for a faulty meter, and although it was done, it was not implemented.
On 24 June 2019, Silas Shnaka instructed Norman Mururu to raise RCCS for a faulty meter and allocate the claimant to action. The claimant had raised the Work Order on 21 June 2019 and assigned it to himself. This was done before raising the RCCS.
On 28 June 2019, the finance division recovered the outstanding debt of Ksh. 64,597 from Kenneth Kobia through the payroll, since the irregular credit did not capture the closing balance that the claimant had not captured.
Tollah testified that when the audit team called for clarifications on the claim, he responded that he had received verbal instructions from his supervisor, Benedict Mulu, but that the site employees would communicate cases involving Work Orders outside his work jurisdiction. However, it was noted that the claim had raised a Work Order and assigned it to himself for an area outside his jurisdiction. The account No. 26211482 for Kenneth Maina Kobia was in Nyali, and there was no changeover.
Regarding the money received from private electricians, the claimant stated that it was compensation for a design he had created for an automatic changeover from power to generator.
Three meter numbers, 060065303, 0342929, and 062193258, could not be located. These were retrofitted by the claimant upon allocation by Silas Shinaka.
On the retrofitting for Kenneth Maina Kobia, the claimant responded that the account was under concession, and the bills were being recovered from the payroll. The claimant had checked the meter readings and provided estimates for Ksh 14,973, thereby helping a fellow staff member who had been without electricity for three weeks.
Tollah testified that the claimant’s conduct was contrary to policy, resulting in a loss of Ksh. 41 million, and following investigations, the respondent was able to recover Ksh. 22 million.
The respondent also called Anne Siyamo, the senior human resources and administration officer, who testified that following audit investigations, the claimant was involved in responding to matters of retrofitting the electricity account No. 26211842 belonging to Kenneth Mana Kobia in Nyali irregularly and receiving Ksh. 97,173 from private electricians. He failed to provide a satisfactory response. He was invited to a disciplinary hearing, and again, his responses were deemed unacceptable, as he was unable to explain why he had carried out the irregular retrofitting or received money from private electricians. The disciplinary committee observed that the claim failed to follow the proper procedure in the retrofitting and that the money received was related to fraudulent activities. Furthermore, he could not produce the 3 meters that he had retrofitted and rebilled, for which he had received Ksh. 22,500. To conceal fraud, the claimant failed to perform his duties properly. This amounted to a breach of policy, and a summary dismissal was issued on 7 February 2020. He was permitted to appeal, but the appeal was found to be without merit.
Siyamo testified that the claimant had a poor work record. On 27 August 2019, he was issued a show-cause letter for taking action and resolving the RCCS for Account No. 2210190800766. On the same day, the claimant received a caution letter for illegal metering.
Based on the claimant's conduct, summary dismissal was justified.
At the close of the hearing, both parties agreed to file written submissions.
The Claimant argued that his summary dismissal was wrongful, illegal, and unlawful, claiming that both the substantive reasons for termination and the procedure followed were fundamentally flawed. The internal Audit report, 'Investigation Report No. 01-2019/2020 Rebilling and Unprocedural Meter Change Coast Region,' which identified a significant sum of Kshs. 41,139,766.00, as irregularly rebilled, was challenged. However, the Claimant contends that this report was not an objective fact-finding mission but rather a preconceived exercise primarily aimed at assigning blame. The Respondent's Internal Auditor failed to provide a letter of instructions or any concrete evidence of proper protocols being followed during the audit. This undermines the credibility and legitimacy of the entire investigative process that led to his dismissal.
Employees were summoned without being adequately informed of the specific reasons for their appearance. Various materials, such as M-Pesa statements, witness statements from customers and electricians, work orders, and data from computerised systems, were not made available to the Claimant nor produced in court during the proceedings.
He argues that the audit findings were presented merely as paraphrased summaries, rather than properly documented interviews or minutes, which he dismisses as speculative and unsubstantiated. A significant point of contention raised by the Claimant is that the entire 65-page audit report was never presented to him, nor was it produced in court, ostensibly under the pretext that it was "too bulky." This denial of access to core investigative materials, he argues, severely prejudiced his ability to mount a defence.
The Claimant argued that he was unfairly put in a situation where he had to prove his innocence without access to the materials that formed the basis of the charges against him, creating an impossible burden. The Human Resource Department confirmed during cross-examination that the disciplinary panel indeed had access to electronic systems and other evidence not disclosed to the Claimant, resulting in an undeniable and unfair imbalance in the proceedings. He notes that he faced significantly greater scrutiny and was required to meet a higher standard of proof in court than during the internal disciplinary process, which reinforces his claim that the entire procedure was fundamentally flawed and biased against him. Ultimately, this process led to the summary dismissal of 37 employees, including himself, and their subsequent unsuccessful appeals, which solidified his view that the process was rigged and unjust from the outset.
Regarding the specific allegations that formed the basis of his dismissal, the Claimant submitted that he was accused of two main acts: irregularly retrofitting account 2611482 belonging to Kenneth Maina and receiving Kshs. 91,173/- from private electricians. However, retrofitting was a legitimate part of his assigned duties, and the Respondent was challenged to produce any account statement to verify the allegations concerning Kenneth Maina's account. Kenneth Maina, who is also the Respondent’s employee, only received a warning for his involvement, highlighting a potential discrepancy in disciplinary action. The Human Resource Manager (HRM), Anne Siyamo, confirmed during cross-examination that the Claimant never actually received money from Kenneth Maina and that "rebilling" was not within his scope of duties. Furthermore, the HRM also confirmed that there was no evidence linking the Claimant to any irregular activity concerning the other individuals mentioned, namely J. Barasa, Michael Odhiambo, or K. Kiragu. Moreover, neither the audit report nor the M-Pesa statement, which were central to the allegations, were provided to the Claimant to enable him to adequately respond to the charges.
The Claimant also alleges selective attribution of M-Pesa monies for dismissal, pointing to instances where other employees, such as Patrick Otieno Makokungu and Linet Abuto, who allegedly received money from private electricians, only received warnings, thereby raising questions of discriminatory treatment.
The Respondent failed to prove any valid reason for his termination under Section 43(1) of the Employment Act (the Act), asserting that the charges against him were unfounded, unjustified, and, on the face of it, merely a cover and an afterthought. The Respondent failed to accord him procedural fairness as mandated by Section 45(2) of the Employment Act, emphasising that he was not supplied with crucial supporting reports or materials, and that the Respondent relied heavily on hearsay, innuendo, and irrelevant material to make their case. He relied on Benedict Abonyo Omollo v Judicial Service Commission and 2 Others (ELRC No. 47 of 2015), which in turn referenced Keen Kleeners v Kenya Plantation and Agricultural Workers Union (Civil Appeal No. 101 of 2019), to emphasise that the employer bears the statutory burden of proving valid and fair reasons for termination under Sections 43 and 45 of the Employment Act. Concerning the claim for general and exemplary damages for the harm suffered as a result of his dismissal, reliance was placed on the case of Rosemary Wanja Gichuru v Package Insurance Brokers Ltd [2019] eKLR, which specifically addressed discriminatory treatment. The Claimant notes that the Supreme Court held that an employer must provide justifiable reasons for actions taken against an employee. In the absence of such justification, particularly against a protected group, discrimination is deemed to have occurred. In Ol Pejeta Ranching Ltd v David Wanjau Muhoro[2017] eklr, the Court awarded damages of Kshs. 7,500,000, and Mary Mwaki Masinde v County Government of Vihiga & 2 Others [2015] KEHC 1602 (KLR), where an award of Kshs. 3,000,000 was made. Based on these precedents and the circumstances of his case, the Claimant submits that an award of Kshs. 2,000,000 in damages would be fair and appropriate.
The Respondent submitted that the dismissal was both lawful and fully justified based on the Claimant's gross misconduct. Respondent adhered to procedural fairness. the Claimant's conduct constituted gross misconduct that warranted summary dismissal. They allege that their internal audit (Investigation Report No. 01-2019/2020) conclusively established two key acts of misconduct by the Claimant: irregularly retrofitting Account 2611482 belonging to Kenneth Maina and receiving Kshs. 91,173/- from private electricians. The Respondent asserts that these actions constitute a fundamental and egregious breach of contract, thereby justifying dismissal under the provisions of Section 44(3) of the Employment Act. Section 44(4)(c) of the Act, which defines gross misconduct to include willful neglect or careless performance of duty, aligns the Claimant's alleged actions with this statutory definition. Section 43(1) of the Act requires the employer to take on the burden of proving that valid and fair reasons for the dismissal indeed existed.
There was procedural fairness based on documentary evidence, including show cause letters issued to the Claimant, the Claimant's written responses, invitation letters to disciplinary hearings, detailed disciplinary minutes, and reports from the appeal committee. In Dairus Kiseu Mwamburi v Co-operative Bank [2021] eklr and Postal Corporation of Kenya v Andrew K. Tanui [2019] eklr, the essential elements of a fair procedure in termination cases are delineated. These elements, which they claim to have observed, include a clear explanation of the grounds for potential termination, a stated reason for the termination, the employee's entitlement to a chosen representative during the hearing, and due consideration of the employee's representations. In Kenya Union of Commercial Food and Allied Workers v Meru North Farmers Sacco Limited [2013] eklr, the mandatory nature of fair procedure in both termination and summary dismissal cases is supported. Additionally, Anthony Mkala Chitavi v Malindi Water and Sewerage Company Limited [2013] eklr and Gilbert Mariera Makori v Equity Bank Limited [2016] eklr are cited to reinforce these stringent procedural requirements under Section 41 of the Employment Act, and it is contended that they have meticulously discharged their legal burden of proving that the disciplinary process afforded to the Claimant was procedurally fair in all respects.
Regarding procedural fairness, the Respondent argued that the dismissal was entirely justifiable based on the nature and gravity of the Claimant's misconduct. In Janet Nyandiko v Kenya Commercial Bank Limited [2017] eklr, which provides a comprehensive summary of what constitutes unfair termination, specifically an employer's failure to prove a valid and fair reason related to the employee's conduct, capacity, or compatibility, or a failure to act in a just and equitable manner. In Evans Kamadi Misango v Barclays Bank of Kenya Limited [2015] eklr, which clarifies the employer's burden under Section 43 as demonstrating a valid reason that would cause a reasonable employer to dismiss the employee. This principle, according to the Respondent, determines whether a reasonable employer could have decided to dismiss on the same facts, falling within a band of reasonable responses to the employee’s conduct. To bolster this, he cited the case of John Jaoko Othino v Intrahealth International [2020] eklr. In Thomas Sila Nzivo v Bamburi Cement Limited [2014] eklr, it is established that an employer only needs reasonable and sufficient grounds, rather than conclusive proof, to substantiate allegations of misconduct. The standard of proof in such cases is on a balance of probabilities, not beyond a reasonable doubt. He argued that this reasoning was buttressed by Kenya Revenue Authority v Reuwel Waithaka Gitahi & 2 others [2019] eKLR, which cautioned against requiring proof beyond a reasonable doubt as in a criminal trial, thereby distinguishing the standard in employment cases from that in criminal proceedings. And in Matesho v Newton [2022] eKLR, the employer is permitted to plead matters that they genuinely believed to exist and which, if they were in fact in existence, would provide valid grounds for terminating the employee. This provides a legal framework for the employer's subjective belief in the misconduct, provided it is reasonable and based on available information.
The Respondent submitted that their actions throughout the process were entirely within the bounds of the law, strictly adhering to the provisions of the Constitution of Kenya under Articles 41, 47, and 50, as well as the specific requirements of the Employment Act sections 41, 43, 44, and 45.
Determination
As outlined above, the claimant opted to rely on the filed records while the respondent called witnesses. The claimant was not available for cross-examination.
The claimant was dismissed from his employment due to the irregular retrofitting of account No. 2611482 belonging to Kenneth Maina in Nyali. He was also charged with receipt of Ksh. 91,173 from private lecturers as follows:
- Ksh.8,083 from J Barasa,
- Ksh.1,000 from K. Kiragu,
- Ksh.84, 060 from Michael Odhiambo.
The claimant was further charged with failing to return 3 meters No. 060065303, 0342929, and 062193258.
In response, the claimant admitted that he changed meter No. 2611482, belonging to Kenneth Maina in Nyali, which was outside his area of coverage and located on the island. He explained that his colleague, Silas Shinaka, had requested to assist Kennedy Maina Kobia, whose wife had been without electricity for three weeks. Bennedict Mulu verbally approved and authorised the work. He responded that although he did not cover the island, any issues outside his designated area would be communicated to the relevant employees in that specific zone. He justified working outside his area of jurisdiction as part of a team effort and to help resolve problems.
Regarding the allegations that he received money from private electricians, amounting to Ksh. 91,173, the claimant responded that he knows them as friends in the same sector and that he worked on a work design from an auto to a charger, which was private.
Regarding the other missing meters, the claimant responded that meter No. 060065303 was recovered in Nyali and replaced with meter No. 061342508. However, there was no system update, and they offered to follow up and then debit for a proper reflection. The other meters could not be accounted for.
Indeed, under section 44 of the Act, the employer is permitted to terminate employment through summary dismissal when the employee breaches a fundamental term of the employment contract and commits gross misconduct. The protection for the employee is set out in section 41(2) of the Act.
Upon the claimant admitting that he retrofitted account No. 2611482 belonging to Kenneth Maina in Nyali, which was outside his area of jurisdiction and was without authorisation, it was deemed irregular. The further admission that he could not trace the other meters allocated to him or account for them constituted neglect of duty.
Irregular and negligent performance of duty is defined as acts of gross misconduct under section 44 of the Act, as held in Joseph D. Baraza v United (EA) Warehouse Limited [2014] KEELRC 1237 (KLR). The employer is entitled to sanction summary dismissal once it is established that the employee has engaged in irregular work performance.
During the audit investigation, the claimant was required to explain the circumstances surrounding the retrofitted account No. 2611482, which belonged to Kenneth Maina in Nyali. His explanation that this was part of teamwork and that he was assisting a colleague whose wife had called him after going without electricity for 3 weeks is irregular and led to the manipulation of records.
Although the claimant blamed Silas Shinaka, who verbally instructed him to attend to the matters, in the case Ondari v National Hospital Insurance Fund [2025] KECA 687 (KLR), the court held that under Section 43(2) of the Act, the employer must genuinely believe there are reasons to terminate employment at the time of dismissal.
In Kenya Power & Lighting Company Limited v Aggrey Wasike [2017] eKLR, the court held that;
Under Section 43 of the Act, the onus is on an employer to prove the reason or reasons for the termination, failing which the termination shall be deemed to be unfair. The test is, however, a partly subjective one in that all an employer is required to prove are the reasons that he “genuinely believed to exist,” causing him to terminate the employee’s services.
On the allegations made against the claimant, his responses are unsatisfactory, the irregularity is apparent, and the sanction of summary dismissal was justified.
Regarding the other allegations that he received money from private electricians, there was no evidence linking the claimant to J Barasa, K Kiragu, or Michael Odhiambo. Where such materials are for receipt of;
- Ksh.8,083 from J Barasa,
- Ksh.1,000 from K. Kiragu,
- Ksh.84, 060 from Michael Odhiambo.
These records, which existed, were not made available to the claimant during the show cause notice or during the disciplinary hearing. The alleged data collected from M-Pesa and bank statements, or the order seeking to investigate his mobile money transactions, were not produced.
On the first charge against the claimant, which was found justified, employment was terminated for justifiable reasons. The claimant had a poor work record during his short-term contract. Under the contract dated 1 February 2019, by 27 August 2019, he had received a show cause notice and a caution letter.
The remedy of reinstatement is not available. The alternative remedies are not applicable, as the employment was terminated for justifiable cause.
Regarding costs, the proceedings considered that each party bears its costs.
Accordingly, the claim is without merit and is hereby dismissed. Each party bears its costs.
Delivered in open court at Mombasa, this 25th day of July 2025.
M. MBARŨ
JUDGE
In the presence of:
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