[2025] KEELRC 1520 (KLR)

Mbugua v Kenya Power and Lighting Co. Ltd (Employment and Labour Relations Cause 1060 of 2018) [2025] KEELRC 1520 (KLR) (26 May 2025) (Judgment)

Neutral citation: [2025] KEELRC 1520 (KLR)

Republic of Kenya

In the Employment and Labour Relations Court at Nairobi

Employment and Labour Relations Cause 1060 of 2018

MN Nduma, J

May 26, 2025

Between

Michael Kuria Mbugua

Claimant

and

Kenya Power and Lighting Co. Ltd

Respondent

Judgment

1. The Claimant filed suit against the Respondent on 26/6/2018 seeking the following reliefs: -a.A declaration that the termination of the employment was unlawful, unjustified, unfair and unprocedural.b.Damages for summary dismissal equivalent to one month salary payment in lieu of notice payment for unutilized 19 leave days and equivalent of one years’ salary as provided for under Section 49(1) (c) of the Employment Act, 2007 in the sum of Kshs. 1,003,195. 20. c.General damages for violation of the Claimant’s fundamental Constitutional rights.d.Interest on (b) and (c) from 21st day of August, 2017 and interest on (e) from the date of judgment.e.Costs of the suit; andf.Such other or further relief this honourable court may deem fit.

2. The Respondent filed a Replying Memorandum and counter claim in which it admitted the employment relationship, disputed the particulars of claim and counter claimed:a.Car loan balance in the sum of Kshs. 1,005,833. 25b.Employee sales in the sum of Kshs. 13,773. 06Kshs. 1,079,646. 31Less. 19 days accrued leave in the sum of Kshs. 46,603. 20Leaving a total claimant as Kshs. 1,033,043. 11

Facts of the claim 3. CW1 adopted witness statement dated 26/6/2018 as his evidence in chief. He stated that he was employed by the Respondent as a Technician in the year 2009 and worked continuously for the Respondent until he was dismissed from employment by a letter dated 17/8/2017. Dismissal was with effect from 21/8/2017. According to the letter of dismissal the Claimant was found guilty of involvement in the fraud on street lighting materials in that he hadDefrauded the company 30 pieces of street light led lanterns meant to be installed on street lighting projects within Nairobi West Region.”

4. CW1 said he received a notice to show cause dated 6/7/2017 to which he responded by a letter dated 11/7/2017. That he attended a disciplinary hearing on 27/7/2017 where he explained himself in the absence of a representative. That he received a letter of dismissal dated 17/8/2017 and the dismissal was effective on 21/8/2017.

5. The Claimant said the dismissal was not for a valid reason.

6. Under cross-examination the Claimant said he was employed as a street lighter on contract basis and operated in Nairobi West. That his work was to fix the streetlights but had no role in procurement of the materials required. That he made requisitions for lanterns required. CW1 said one Robert Njenga went to pick the lanterns said to have been stolen. That Robert was a driver employed by the Respondent in the department of street lighting.

7. CW1 admitted that he asked the said Robert Njenga to collect the lanterns from the Respondent’s store while Robert was on leave. CW1 admitted the Respondent had other drivers in the department. CW1 said lanterns were delivered to the site but he did not sign to acknowledge receipt of the lanterns as that was not part of his duties. CW1 said he was not present when lanterns were delivered but he trusted Robert. CW1 said he had gone home before confirming that the lanterns had been delivered. CW1 said he did not ask anyone to accompany him at the hearing. That he was not given a chance to ask questions.

8. CW1 said he was charged with a criminal offence of theft of the lanterns but was acquitted of the charges. CW1 said he was honest worker hence his promotion. That he earned Kshs. 73,584. 00 at the time of dismissal. That he was entitled to 30 days annual leave; medical care and electricity concession. That he was also a member of a retirement scheme.

9. CW1 denied the counter claim stating that he had cleared the car loan. CW1 stated the bank had written to him a letter dated22/1/2019 indicating the loan had been fully paid. CW1 said he is not aware that the Respondent paid the car loan balance after the Claimant was dismissed. CW1 admitted that the Respondent was a guarantor of the loan. That the loan was deducted vide the pay slip. CW1 said the letter in response to notice to show cause was written to him and he was asked to sign it.

10. RW1 Hellen Nganga testified in defence of the case. She said she was the Chief Human Resource Officer of the Respondent. RW1 adopted a witness statement dated 15/3/2023 as her evidence in chief. She produced exhibits ‘1’ to ‘6’ in support of her defence.

11. RW1 said she was not aware that the Claimant had been prosecuted for criminal charges arising from loss of the lanterns. RW1 said the Claimant was a technician and a supervisor in street lighting. RW1 said the Claimant was not a store keeper and did not operate procurement department. That part of Claimant’s work was to replace spoilt lanterns. That the lanterns were delivered on site and Claimant installed them with his team. That the Claimant requisitioned the required lanterns. That the Claimant transported goods from the store to the site. That he was in charge of delivery and not the drivers. He was to ensure that all procured goods were received at the site.

12. That CW1 was to organize for transport to deliver the goods he needed. That CW1 was responsible for the goods removed from the store until same were fitted in the streets. RW1 said the lost lanterns left the store as documentation in the system show. RW1 said this was an automated process not before court. RW1 said she did not have that record. That Claimant requisitioned goods in the system but the requisition was not before court.

13. That a driver called Robert had delivered the lanterns. The said Robert had been requested by the Claimant to deliver the lanterns. That Robert was an employee of the Respondent in a different department from lighting. RW1 said she was not aware that Cooperative bank wrote to the Claimant stating that the car loan was fully paid. RW1 said Robert Njenga was on leave when he was asked to deliver the lanterns by the Claimant.

14. That the suit lacks merit and it be dismissed.

Determination 15. The parties filed written submissions which the court has considered together with the evidence adduced by CW1 and RW1. The issues for determination are: -a.Whether the Respondent dismissed the Claimant from employment for valid reason following a fair procedure.b.Whether the Claimant is entitled to the reliefs sought.

16. In terms of Section 43(1) and (2) of the Employment Act 2007, the employer had the burden of proving that it had a valid reason to dismiss an employee from work.

17. From the minutes of the hearing of the disciplinary case against the Claimant on 27/7/2017, before court, the Claimant in answer to the allegations of involvement of theft of street lighting lanterns admitted that he had requisitioned the street lanterns in his position as supervisor in street lighting – Nairobi West. That the requisition was done by email to one Eske and copied to Eng. Mak’owenge. CW1 admitted that he had called one Robert Njenga, a driver to deliver the lanterns to the site.

18. That Robert collected the lanterns from the store. CW1 said he waited for the driver to deliver the lanterns till 6 p.m. then went home before the driver had arrived. CW1 said he was called by security personnel at 9:00 p.m. only to be informed that some materials had been stolen. CW1 said he went to the office and recorded his statement with the security and testified about it before the disciplinary committee.

19. RW1 was able to demonstrate that the lanterns requested by CW1 on 24/7/2017 were collected by Robert a driver sent to do so by the Claimant while he was on leave. That the said lanterns were not delivered at the alleged site to be fixed in the streets. The Respondent also established that the said Robert was not a driver in the lighting department. The Respondent demonstrated ably that the Claimant was guilty of misconduct by participating in a wrongful transaction which led to the loss of 30 lanterns from the stores of the Respondent.

20. The court is satisfied that the Respondent justified the dismissal of the Claimant from employment for participating in a fraudulent street lantern requisition.CW1 did not rebut that credible evidence by the Respondent.

21. The court relies on the Court of Appeal decision in Kenya Revenue Authority versus Reuwel Waithaka Gitahi and 2 others [2019] eKLR where the court stated that an employer only needs to show that it had reasonable grounds to link an employee to misconduct. The court stated: -We have carefully re-evaluated the evidence on record on this issue and we think, with respect, that the trial court applied a skewed standard of proof, and, certainly not the one provided for under section 43(1) of the Act. 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.The standard of proof is on a balance of probability, not beyond reasonable doubt and all the employer is required to prove are the reasons that it “genuinely believed to exist,” causing it to terminate the employee’s services.The employer was able to show that it genuinely believed that there were reasonable grounds and sufficient grounds to suspect that the Respondents had committed gross misconduct in their employment and had done acts which were substantially detrimental to KRA. It is not for the court to substitute its own ‘reasonable grounds’ for those of the employer.”

22. The court further relies on the decision in the case of Thomas Sila Nzivo versus Bamburi Cement Limited [2014] eKLR where the court stated.

The Respondent had reasonable and sufficient grounds to suspect the Claimant of having acted to the substantial detriment of the Respondent and its property and was justified in summarily dismissing the Claimant under section 44(4) of the Employment Act, 2007. The employer was not required to have conclusive proof of the Claimant’s involvement. It was only expected to have reasonable and sufficient grounds.” 23. In the present matter the Respondent had reasonable and sufficient grounds to prove on a balance of probability that the Claimant had participated in improper procurement of street lanterns to the significant loss and detriment of the Respondent.

24. The dismissal of the Claimant was therefore lawful and fair. The case by the Claimant is therefore dismissed for want of merit.

Counter claim 25. The Respondent failed to prove in terms of section 107 and 108 of the Evidence Act that the Claimant had not paid the car loan as at the time of hearing of the suit. The court is satisfied that the Cooperative bank had written a letter indicating that the said loan had been fully paid. The claim for unremitted sales proceeds in the sum of Kshs. 13,773. 06 was also not substantiated at all by RW1.

26. Accordingly, the Respondent failed to adduce any or any sufficient evidence to prove the counter claim in the sum of Kshs. 1,033,043. 11. The said counter claim is dismissed in its entirety for lack of merit.

27. In the final analysis the suit by the Claimant and the counter claim by the Respondent are dismissed.

28. Each party to meet their costs of the suit.

DATED AT NAIROBI THIS 26TH DAY OF MAY 2025MATHEWS NDUMAJUDGEAppearance:Mr. Njuguna for ClaimantM/s. Weru for RespondentMr. Kemboi – Court Assistant