https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1619

Chumo v Kenya Power and Lighting Co. Ltd (Employment and Labour Relations Cause E036 of 2025) [2026] KEELRC 1619 (KLR) (8 June 2026) (Judgment) Neutral citation: [2026] KEELRC 1619 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Eldoret Employment and Labour Relations Cause E036 of 2025 MA Onyango, J June 8, 2026 Between Elvis Kipkosgei Chumo Claimant and Kenya Power And Lighting Co. Ltd Respondent Judgment 1.The Claimant is an employee of the Respondent, a public listed company in Kenya, majority owned by the Government of Kenya and the sole distributor and retailer of electricity services in the country. 2.In his Statement of Claim the Claimant states that he is currently employed as a Store Keeper 4 stationed at the Respondent’s Lodwar Off Grid Station. 3.The main facts of this case are not contested. On 8th July, 2024 the Respondent wrote a letter reference KP 3/5/7/1/Chumo/84648/DNN/en to the Claimant requiring him to give an explanation within 72 hours over his involvement in fraudulent activities against the Respondent, that he colluded with other KPLC personnel within the station, Barsallanga Transport Ltd Tanker drivers and Security Guards at the station to misappropriate diesel fuel valued at Kshs.178,280,469.24 meant for the station. The Claimant was specifically accused that he fraudulently signed the inspection and acceptance certificates to conceal the illegality. 4.The Claimant through a letter dated 10th July, 2024 responded to the respondent's letter. On 16th July, 2024 the Claimant was served with an invitation to a disciplinary hearing dated 15th July,2024. The subject matter was a Security Investigation Report Reference Number.19-2023/2024 dated 24th June, 2024 on misappropriation of diesel meant for thermal stations (OGS)-Turkana County. 5.The Claimant attended the disciplinary hearing and on 2nd September, 2024 the Respondent through a letter reference number KP8/5/7/2/NCR/kjm issued the Claimant a 1st warning to the Claimant in accordance with the Collective Agreement (CBA) for the period 2021/2024. 6.The Respondent thereafter made a complaint to the police against the Claimant and on 25/11/2024 the Claimant was arrested. 7.On 27/11/2024 the Claimant was arraigned before the Eldoret Chief Magistrate's Court and charged with sabotage contrary to Section 343 of the Penal Code, stealing contrary to section 281 of the Penal Code and conspiracy to commit a felony contrary to section 393 of the Penal Code. 8.On 27th November, 2024 the Respondent through a letter reference number KP8/5/7/1/NCR/ccm, communicated to the Claimant that the Respondent had decided to suspend him from duty with immediate effect without pay in accordance with the Collective Bargaining Agreement (CBA) 2021-2024, Clause 18.3 on grounds of the alleged involvement of the Claimant in fraudulent activities involving company interests between 1st October 2021 and 30th December 2023 at KPLC Lodwar off grid station in Turkana County of misappropriation of diesel valued at Kshs. 178,280,469.24/=. 9.On 16th December, 2024 the Respondent through a letter reference number KP8/5/7/1/Chumo/84648/NCR/ccm addressed to the Claimant sought an explanation from him within 72 hours over a security report dated 3rd December, 2024 which allegedly revealed that the Claimant was arrested by DCI on 25th November, 2024 and charged in court on 27th November, 2024 on involvement in theft of fuel for the Off-grid power stations valued at Kshs. 178,280,469.24/= between 1st October, 2021 and 30th December, 2023 at KPLC off grid station in Turkana County, totaling to 998,994 litres of diesel. 10.The Claimant responded through a letter dated 16th December, 2024 to the Respondent’s letter. On 21st May,2025 the Respondent through its letter reference number KP1/5A/10/1/CUMO/84648/DNN/rk addressed to the Claimant requested him to give an explanation concerning the complaint. The reason for this was that further investigations disclosed that the Claimant had been involved in fraudulent activities for which he had been heard and issued with a 1st warning letter. The Claimant responded through his letter dated 5th June, 2025. 11.On 17th June,2025 the Respondent served the Claimant with an invitation to attend a disciplinary hearing scheduled for the 1st July, 2025 over illegal dealings on diesel fuel. 12.The Claimant avers that the Respondent is keen on initiating disciplinary proceedings against for a second time over issues that have already been deliberated upon by the Respondent and for which he was issued with a 1st warning. It is the Claimant’s position that the Respondent is not allowed to revive a complaint which has already been resolved as this would subject the Claimant to double disciplinary proceedings and punishment over the same subject matter which is unfair and unconscionable. 13.In his Claim the Claimant prays for the following orders:a.A declaration that the disciplinary proceedings as contemplated in the invitation to disciplinary hearing dated 17/06/2025 or any other day and all related actions by the respondent are unprocedural, illegal, null and void.b.A permanent injunction stopping the disciplinary proceedings against the claimant over the complaint against him in connection with the fraudulent activities the respondent complained of where it was alleged that the claimant colluded with other KPLC personnel within the station, Barsallanga Transport Ltd Tanker drivers and Security Guards at the station to misappropriate diesel fuel valued at Kshs.178,280,469.24 meant for the station and that the claimant fraudulently signed the inspection and acceptance certificates to conceal the illegality.c.Costs of the claim. 14.The Respondent opposed the Claim through a Statement of Response dated 9th October, 2025 in which it states that an internal investigation report on misappropriation of diesel meant for thermal stations (OGS)-Turkana County dated 24th June 2024 revealed that the Claimant was involved in fraudulent activities against the Respondent. That the Claimant was specifically found culpable for:a.Colluding with other KPLC personnel within the station, Barsalinga Transport Ltd Tanker drivers, and Security Guards at the station to misappropriate diesel fuel valued at Kshs.178,280,469.24 meant for the station.b.Fraudulently signing the inspection and acceptance certificates to conceal the illegality. 15.The Claimant was issued with a show cause letter dated 8.7.2024, which outlined his offence/charges against him. The claimant responded to the show cause letter via a letter dated 10.7.2024. 16.The Respondent considered the Claimant's response and invited the Claimant for a disciplinary hearing, which took place on 23rd July 2024. Following the disciplinary hearing, the respondent deemed the explanation given by the claimant to be unacceptable and consequently warned the claimant for his offence. The warning was communicated via a letter dated 2.9.2024. 17.The Respondent states that the show cause letter issued to the Claimant dated 21st May, 2025 informed the Claimant that further investigations had been undertaken which found the Claimant culpable for a new offence namely: being involved in fraudulent activity, as he was found to have received money through Mpesa transactions totaling to Kshs.10,530/= from Ismail Abdi and Hassan Mohamed between 15.5.2023 and 15.2.2024. 18.The two individuals who sent money to the Claimant were truck drivers who delivered diesel fuel to the station, and who confirmed through their statements that the money sent to the Claimant were proceeds from the illegal dealings on the diesel fuel.The Respondent states that:a.The offence contained in the Show cause letter dated 21.5.2025 related to receiving money from truck drivers, which is totally different from the offences of collusion and fraudulently signing the inspection and acceptance certificates which were canvassed in the initial disciplinary proceedings.b.Though the new offence emanates from the issue of misappropriation of fuel, it concerns a new and distinct act of misconduct, which was not canvassed in the initial disciplinary proceedings.c.The new offence of receiving money from truck drivers was brought against the Claimant after further investigations were conducted by the Directorate of Criminal Investigations. As such, it is clear that this new offence was informed by new facts and evidence that were not available and/or not in the knowledge of the respondent during the pendency of the initial disciplinary proceedings. 19.The Respondent denies that it has subjected the Claimant to double jeopardy, arguing that the charges in the previous disciplinary process are different from the offences in the present disciplinary process. 20.The Respondent avers that the Claimant's suit is res judicata, incompetent, incongruous, misconceived, an abuse of the court process and inept in both legal substance. 21.The Respondent denies that the Claimant is entitled to any of the prayers sought in his claim. It prays that the Claim to be dismissed with costs. Evidence 22.At the hearing of the Claim the Claimant testified on his behalf and generally reiterated the averments in his Statement of Claim and witness statement which he adopted together with the documents filed with the Claim. 23.The Respondent called NANCY RONO CHERUTICH, its Human Resource Officer, North Rift, Eldoret who also adopted her witness statement and documents filed by the Respondent, and generally reiterated the averments in the Response and her witness statement. 24.The parties thereafter filed and exchanged written submissions. Analysis and determination 25.Having considered the pleadings, evidence and submissions on record, the issues for determination are whether the Claimant is entitled to the orders sought in his Claim which in a nutshell is to stop the disciplinary hearing against him on grounds that it amounts to double jeopardy, having gone through an earlier disciplinary process on the same events and having been punished by issuance of a warning letter. 26.It is common ground that by letter dated 8th July, 2024, the Claimant was taken through a disciplinary process in respect of misappropriation of diesel at the Respondent’s Lodwar Station where the Claimant is stationed. The show cause letter titled “Explanation” which contained the charges against the Claimant reads:Kenya PowerOur Ref: KP/3/5/7/1/CHUMO/846448/DNN/ON8th July, 2024Elvis Kipkosgei ChumoS/N.84648Thro: County Business Manager, TurkanaDear Elvis,ExplanationA Security investigation Report Ref No. 19.2023/2024 dated on Misappropriation of diesel meant for thermal stations (OGS) - Turkana County has revealed that as storekeeper v in Lodwar off Grid Station you:1.Colluded with other KPLC personnel within the station, Bassalinga Transport Ltd Tanker drivers and Security Guards at the station to misappropriate diesel fuel valued at Ksh. 178.280,469.24 meant for the station.2.Fraudulently signed the inspection and acceptance certificates to conceal the illegalityNote that involvement in fraudulent activities against your employer is a very serious offence, which can lead lo summary dismissal as per the Staff Regulations Part Vii (13). However, before any action is taken, you are hereby given a chance to show cause why disciplinary action should not be taken against you lor the offence. Your reply should be received within 72 hours from the date of this letter failure to which it will be assumed that you have none and management will institute appropriate disciplinary measures without further reference to you.Yours faithfully,For: The Kenya Power & Lighting Co. PLC.SignedDR. JOHN NGENO, OGWGENERAL MANAGER, SUPPLY CHAIN 27.After the Claimant responded to the show cause letter he was taken through a disciplinary hearing which took place on 23rd July, 2024 as evidenced by the invitation letter reproduced below:KENYA POWERInvitation to Disciplinary HearingTo: Employee Name – Elvis Kipkosgei Chumo S/No.84648Position: Storekeeper VWork Station/Department -LodwarYou are notified to be present at an enquiry to be held:Venue KVDA Conference Room, 2nd Floor, EldoretDate: 1st July 2025Time: 8:00amThe allegations against you are:A further investigation has revealed that you were actually involved in the fraudulent activities as you have been found to have Mpesa transactions on various dates totaling to Ksh.10,530/= from Ismail Abdi and Hassan Mohamed between 15.05.2023 and 15.02.2024 drivers who were delivering the diesel fuel to the station. The said transactions have been confirmed through the truck drivers’ statements to have been proceeds from the illegal dealings on the diesel fuel. You are requested to bring to the enquiry any evidence or witness you may have in support of your case. Please advise who your witness will be before:Time:12.00pm …on Date… 30th June…. To arrange for his/her release form duties to attend the enquiry.Issued byName .. 17/06/2025 Signature …. Signed…Received by: EmployeeName: …… Date …..17/4/2025…..signature…………… 28.Following the disciplinary hearing the Claimant was issued with a warning letter dated 2nd September, 2024 as reproduced below:KENYA POWERKP8/5/7/2/NCR/kjm02nd September 2024CONFIDENTIALElvis Kipkosgei Chumo S/No.84648Thro': County Business Manager, TurkanaDear Elvis,RE: WARNINGReference is made to our show cause letter to you dated 8th July, 2024, your response dated 10th July, 2024 and the disciplinary hearing held on 23rd July, 2024, regarding security Investigation report No. 19-2023/2024 dated 24th June, 2024, on alleged Misappropriation of diesel meant for thermol stations (OGS) - Turkana County which revealed that as storekeeper v in Lodwar off Grid station you:i.Colluded with other KPLC personnel within the station, Barsalinga Transport Ltd Tanker drivers and Security Guards at the station to misappropriate diesel fuel valued at ksh 178,280,469.24 meant for the stationii.Fraudulently signed the inspection and acceptance certificates to conceal the illegality.The explanation you gave is unacceptable to Management and you are consequently WARNED for the offence.You are therefore advised to desist from such behavior as a repetition of the same will lead to Management taking more severe disciplinary action against you.This matter has therefore been recorded in your personal file as 1s Warning in accordance with the current Collective Bargaining-Agreement C.B.A 2021/2024.[The letter filed in court is incomplete] 29.On 27th November, 2024 the Claimant was suspended from duty on grounds that he had been arrested and arraigned in court over the same subject. The letter of suspension is reproduced below:KENYA POWERKP8/5/7/1/NCR/ccmOur Ref:Your Ref: 27th November, 2024Elvis Kipkosgei Chumo S/No.84648Thro’Ag. County Business Manager, TurkanaDear Elvis,RE: SUSPENSIONIt is alleged that as Storekeeper V within Turkana County, you were involved in fraudulent activities involving company interests between 1st October 2021 and 30th December 2023 at KPLC Lodwar off grid station in Turkana County of misappropriation of diesel fuel valued at Ksh.178,280,469.24. Consequently you were arrested on 25th November 2024 and charged before Eldoret Iaw Court on 27th November 2024 for the following offences; Sabotage contrary to section 343 of the penal code, Stealing by servant contrary to Section 281 of the penal code and Conspiracy to commit a felony to section 393 of the penal code.It has therefore been decided that you the suspended from duty with immediate effect without pay in accordance with the Collective Bargain Agreement (CBA) 2021-2024, Clause 18.3.While on suspension, you will be required to report to the Regional Manager, North Rift Region, every Monday at 8.00.A.M.for further instructions.Yours faithfullyFor: The Kenya Power & lighting company ltdEng. Mary KiruiRegional Manager, North Rift 30.The Claimant was issued with another letter titled “Explanation” dated 16th December, 2024 as follows:Our Ref: KP8/5/7/1/CHUMO/84648/NCR/ccmYour Ref:16th December 2024Elvis Kipkosgei Chumo S/No.84648Dear Elvis,EXPLANATIONA security report dated 3rd December 2024 revealed that you were arrested by DCI on 25th November 2024 and Charged in court on 27th November 2024 on involvement of theft of fuel for the Off-grid power stations valued at Kshs. 178,280,469.24, between 1st October 2021 and 30th December 2023 at KPLC Lodwar off grid station in Turkana County, totaling to 998 994 litres of diesel.Note that Management views Criminal Offence under Penal code against your employer as a serious offence which can lead to summary dismissal, However, before any action is taken, you are hereby given o chance to show cause why disciplinary action should not be taken against you for the offence. Your reply should be received within 72 hours from the date of this letter failure to which it will be assumed that you have none and management will institute appropriate disciplinary measures without further reference to you.Eng. MARY KIRUIREGIONAL MANAGER, NORTH RIFT 31.In his response to the second letter of “Explanation” dated 16th December, 2024 the Claimant explained that the issue raised in the criminal case was addressed in the disciplinary proceedings previously conducted against him and he had been issued with a warning letter. 32.In a letter dated 31st May, 2025 the Respondent explained that further investigations were conducted that came up with new evidence against the Claimant hence the fresh disciplinary process. After the Claimant responded to the Respondent’s letter dated 31st May, 2025, he was invited for another disciplinary hearing to be conducted on 1st July, 2025. 33.It is the invitation to the disciplinary hearing of 1st July 2025 that prompted the Claimant to approach this court through the instant suit. The disciplinary proceedings were suspended by this court following an application by the Claimant. 34.It is the Claimant’s case that the disciplinary proceedings constitute double jeopardy as he had already been heard and punished for the same misconduct. 35.Double jeopardy is defined in Black’s Law Dictionary, Tenth Edition as “The act of being prosecuted or sentenced twice for substantially the same offense.” 36.The Respondent however insists that the offence captured in the letter dated 21st May, 2025 is a new offence which had not been brought against the Claimant in the earlier disciplinary proceedings. 37.In the case of WAMUKOTA V KENYA ELECTRICITY TRANSMISSION CO. LTD & 2 OTHERS PETITION E185 OF 2025 (2025) KEELRC 3647 (KLR) (17 DECEMBER, 2025) which is on all fours with the instant case, the court held as follows:“ 6.To answer the 1st issue, the Court returns that the petitioner has established that he has been subjected to double jeopardy. The mutual evidence for the petitioner and the respondents is that the petitioner was subjected to initial disciplinary process which the petitioner states he was absolved and the respondents say he was cautioned. Be it as it may, that initial disciplinary process was initiated, continued on its merits and then fully and completely concluded with the impact or outcome the petitioner continued in employment. The further mutual evidence is that after the conclusion of the initial and concluded disciplinary case, a fresh disciplinary process has been commenced and is being continued upon the same set of allegations as it obtained in the initially concluded disciplinary process. The Court finds that the second disciplinary process being continued as per the compulsory leave conveyed by the letter dated 19.09.2025. 7.The Court finds that the petitioner’s predicament herein amounted to a classical situation of double jeopardy as a fundamental procedural defence that prevents a person from being prosecuted or punished more than once for the same crime after a valid acquittal or conviction. The defence of double jeopardy aims at assuring finality of legal judgments or decisions. By that principle, there cannot be a second prosecution after an acquittal, a second prosecution after a conviction, or, two or multiple punishments for the same offence. 8.The Court finds that the petitioner has established that he had already been taken through a disciplinary process by the 2nd respondent about the same impugned tender process and he was absolved or as the respondent says, cautioned. What is material and pertinent is that the petitioner underwent the full regime and motions of the applicable administrative process and upon merits, the case was determined as closed. Thus the Court finds that the compulsory leave imposed for three months effective 19.09.2025 as against the petitioner was unfair, unlawful and unconstitutional.” 38.In another similar case CHIEF JUSTICE AND PRESIDENT OF THE SUPREME COURT OF KENYA & ANOTHER V KHAEMBA CIVIL APPEAL NO. 522 OF 2019 (2021) KECA 322 (KLR) (17 DECEMBER, 2021) the Court of Appeal stated as follows:“ 36.Were there circumstances in this appeal that justified an intervention by the court? It has been demonstrated and found that the disciplinary process by the 1st Appellant against the respondent was marred from the start with illegality and procedural irregularity. It is also evident that the Chief Justice had already made a finding in the letter dated 13th June 2019 that the respondent’s actions amounted to gross misconduct, and therefore, as regards the respondent's culpability. Lastly, the respondent was also subjected to extreme hardship having been illegally and indefinitely suspended with nil pay. Continuing with the disciplinary process in the circumstances would essentially have been an exercise in futility, and aid in the continued violation of the respondent's rights, as was similarly noted by this court in Judicial Service Commission & Another vs Lucy Muthoni Njora [2021] eKLR. 37.In conclusion, this court also finds that the impugned disciplinary process, having been irregular and illegal ab initio, meant there were no valid proceedings that could be remitted back to the appellants for consideration. In the circumstances, the trial Judge also did not err in granting orders to restore the respondent to the status he was before the impugned disciplinary proceedings.” 39.Further, in the decision of the Court of Appeal in COOPERATIVE BANK OF KENYA LTD V YATOR,[2021] KECA 95 (KLR) the court stated as follows:“ 32.As already stated the respondent’s tribulations started when he was suspected to have been involved in the loss of money at the appellant’s Nakuru branch. The respondent was as a result suspended to allow for investigations. The suspension was subsequently lifted following the conclusion of investigations and respondent was given another lease of life with a warning that incase of any similar infractions in future the respondent would face drastic sanctions. Later, on 11th September, 2008 the respondent was issued with a letter of summary dismissal for the same mistake that he had already been forgiven. The question that remains unanswered is for what offence or infraction was this subsequent summary dismissal given that the first complaint had already been dealt with, resolved, and a determination made known to the respondent? The complaint having been resolved it was as good as buried forever and the appellant could not revive it later and use it as a basis for summary dismissal of the respondent as it happened here amounted to double punishment over the same complaint which is unfair and unconscionable.” 40.A reading of the two letters of “Explanation” issued to the Claimant dated 8th July 2024 and 16th December, 2024 discloses that both refer to theft or misappropriation of diesel/fuel at Lodwar Off Grid Station valued at Kshs. 178,280,469.24. 41.The Claimant was subjected to disciplinary hearing and issued with the punishment being a warning letter on the same grounds. The fact that further investigations were carried out which elicited new evidence against the Claimant is immaterial. The Respondent should have concluded investigations before preferring the charges against the Claimant. It cannot be allowed to carry out investigations and disciplinary action against the Claimant in installments. If the earlier disciplinary process was carried out prematurely it is not a justification to take the Claimant through another disciplinary hearing on the same facts and events. 42.The Respondent’s arguments that the second disciplinary process is based on new evidence do not justify a second disciplinary process against the Claimant. 43.As is clear from the record, after the further investigations the Claimant was arrested and charged in a criminal court. The only option available for the Respondent is to await the outcome of the criminal case. Should the Claimant be found guilty, the Respondent can take disciplinary action against the Claimant, not on the same facts as the previous disciplinary action, but on the new grounds that he had been found guilty of a criminal offence to the detriment of the employer which would be under section 44(4)(g) which provides that an employer may summarily dismiss an employee if “an employee commits, or on reasonable and sufficient grounds is suspected of having committed, a criminal offence against or to the substantial detriment of his employer or his employer’s property.” 44.This is what is provided for in Clause 18.3.1 of the CBA between KPLC and KETAWU (2021-2024) states the following verbatim:“An employee charged in a court of law with an offence involving Company interest shall be suspended from duty without pay until the matter is heard and determined.” 45.For these grounds, I find that the disciplinary process against the Claimant that culminated in the disciplinary hearing scheduled for 1st July, 2025 constituted double jeopardy as the Claimant had already been taken through disciplinary process on the same facts and issued with a warning letter. The Respondent is thus estopped from taking the Claimant through another disciplinary process over the same facts and events. 46.In conclusion, I find merit in the Claimant’s Claim and make the following orders:a.A declaration be and is hereby issued that the disciplinary proceedings as contemplated in the invitation to disciplinary hearing dated 17/06/2025 or any other day and all related actions by the Respondent are unprocedural, illegal, null and void.b.A permanent injunction be and is hereby issued stopping the disciplinary proceedings against the Claimant over the complaint against him in connection with the allegations that the Claimant colluded with other KPLC personnel within the station, Barsallanga Transport Ltd Tanker drivers and Security Guards to misappropriate diesel fuel valued at Kshs.178,280,469.24 meant for the station and that the claimant fraudulently signed the inspection and acceptance certificates to conceal the illegality.c.Costs of the claim. DATED, DELIVERED AND SIGNED ON THIS 8TH DAY OF JUNE, 2026.M. ONYANGOJUDGE