Kenya Power & Lighting Company Limited v Aggrey Lukorito Wasike [2017] eKLR

Key Facts

Issues

• The court addressed whether Kenya Power & Lighting Company Limited (KPLC) had valid grounds for terminating Aggrey Lukorito Wasike for suspected theft of copper cables. The key issue was whether KPLC's reasonable belief in misconduct, supported by a fair disciplinary process, justified lawful termination under Sections 41, 44, and 43 of the Employment Act.
• The court examined the legal principle that disciplinary proceedings in employment require proof on a balance of probabilities, not the criminal standard of 'beyond reasonable doubt.' It clarified that Wasike's acquittal in criminal court did not preclude KPLC from taking disciplinary action based on its reasonable belief in misconduct.
• The court evaluated if the learned Judge improperly ordered reinstatement without considering statutory factors (e.g., practicability, exceptional circumstances) outlined in Sections 49(4)(a)–(m) of the Employment Act. The higher court found the reinstatement order unjustified as it ignored the discretionary nature of the remedy and the employer's right to fair adjudication.

Holdings

• The court held that KPLC had valid cause for terminating Wasike's employment due to his suspected involvement in attempting to steal copper cables, as there was a reasonable belief and the disciplinary process was fair.
• The court concluded that Wasike's acquittal in the criminal case did not prevent KPLC from taking disciplinary action, as the standards of proof differ between criminal and employment matters.
• The court determined that the lower court erred in ordering reinstatement without considering factors like practicability and exceptional circumstances required by the Employment Act, making reinstatement not a viable remedy here.

Remedies

• The Court of Appeal ordered that each party bear its own costs in the case.
• The Court of Appeal set aside the original judgment and substituted it with an order dismissing the claim in its entirety. Each party was to bear its own costs.

Legal Principles

• The court emphasized that in disciplinary proceedings, an employer need only prove the employee's misconduct on a balance of probabilities, not the higher criminal standard of proof beyond reasonable doubt. This principle was central to the decision, as the employer's belief in the employee's attempted theft was sufficient under employment law.
• The court affirmed that the employer conducted a procedurally fair disciplinary hearing, satisfying the requirements of natural justice. This included notifying the employee of charges, allowing representation, and considering their response before termination.
• Under Section 43 of the Employment Act, the burden of proof lies with the employer to demonstrate valid reasons for termination. The court clarified that failure to meet this burden would render the termination unfair, though the standard remains lower than in criminal cases.

Precedent Name

• NELSON MWANGI KIBE vs. ATTORNEY-GENERAL
• NEW ZEALAND EDUCATIONAL INSTITUTE vs. BOARD OF TRUSTEES OF AUCKLAND NORMAL INTERMEDIATE SCHOOL
• KENYA AIRWAYS LIMITED VS. AVIATION & ALLIED WORKERS UNION KENYA & 3 OTHERS
• ATTORNEY-GENERAL & ANOR vs. ANDREW MAINA GITHINJI & ANOR
• AVRIL ELIZABETH HOME FOR THE MENTALLY HANDICAPPED VS. CCMA & OTHERS

Cited Statute

• Employment Act
• Industrial Court Act

Judge Name

• W. Karanja
• P. O. Kiage
• P. N. Waki

Passage Text

• It bears repeating that the standard of proof an employer needs to be satisfied about an alleged act of criminality on the part of an employee is the lesser one of balance of probabilities. In the AVRIL ELIZABETH case (supra) which we find persuasive, the court held that video evidence showing an employee talking to a person who was stealing the employer's goods was found to have been sufficient to prove on a balance of probabilities, that the employee was an accomplice to the theft.
• A striking feature of the learned Judge's award of reinstatement is that it is not preceded, accompanied or followed by any indication that the foregoing matters were given serious or any consideration as they were required to be. We consider that to be a serious error of law because, as set out in (d), the order of specific performance in a contract for personal services, which an order of reinstatement amounts to, is not to be made except in very exceptional circumstances.