REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI
CAUSE NO. E638 OF 2020
(Before Hon. Justice Dr. Jacob Gakeri)
DANEIL KANYO MWICIGI …………………………………..…. CLAIMANT
-VERSUS-
CO-OPERATIVE BANK OF KENYA LIMITED…………..…. RESPONDENT
JUDGEMENT
The Claimant commenced this suit vide a statement of claim dated 9th October, 2020 alleging that the Respondent had terminated his employment unlawful and unfairly and and prayed for:
(i) Declaration that termination of employment and wrongful and unfair.
(ii) Declaration that the Respondent violated the Claimant’s Constitutional right.
(iii) Declaration that the claimant was entitled to staff interest rates on all outstanding loans.
(iv) Compensation Kshs.2,458,584.00.
(v) Salary in lieu of notice Kshs.204,882.00.
(vi) Damages for breaching constitutional rights Kshs.10,000,000.00
(vii) Certificate of service.
(viii) Costs of the suit.
(ix) Interest on sum awarded and costs.
(x) Any other relief the court deemed appropriates.
The Respondent admitted that the claimant was its employee effective 24th July, 2008 and was promoted to supervisory Grade 2 and was subject to the Respondent’s Operating Manual Staff Loans Policy Disciplinary Policy and Business Code of Conduct and Ethics.
The Respondent’s case was that the claimant colluded with other employee’s to fraudulently obtain laptop loans and furniture loans against invoices. Provided by Daphul Enterprises and Classic make Enterprises owned by the claimant’s spouse and huge sums of money was credited to the two firms on account of laptop and from there by the claimant and other employees. While Daphul Enterprises opened its account on 28th July, 2016 and located its first deposit 8 days later classic make furniture opened an account on 8th August, 2016 and received a deposit on 30th August, 2013. Their accounts revealed that they had received Kshs.4716 and Kshs.4737 between 1st January 2017 and 11th April, 2018.
According to the Respondent, all the attendant processes had been complied with and termination of the Claimant’s employment was fair and the suit was for dismissal.
In addition, the Respondent filed a counter claim of Kshs.5,080,545.92 comprising the loans the claimant had taken interest at 14% Kshs.5000,000.00 as exemplary damages, costs of the suit and interest.
Claimant’s Evidence
On cross-examination the claimant confirmed that he had served the Respondent for 10 years and 2 months and was familiar with the Respondent’s staff manual but denied having been aware of the Business Code of Conduct and Ethics. He confirmed that one Phyllis was his wife and owned both Daphul Enterprises and classic furniture but cannot confirm the registration dates of the Daphul Enterprises on 26th July, 2016 and but confirmed that classic furniture was registered on 1st August, 2016 and did not exist when he declared that Phyllis was his wife. CW1 admitted that he took invoices from the two business for purposes of a laptop and furniture loan.
He however, did not disclose any conflict of interest and Daphul Enterprises was paid for his laptop but could not confirm that money was disbursed to him though he received a token of Kshs.6000 from Daphul Enterprises through Mpesa. “The claimant admitted having queried the wife’s account through it was not listed as one of his roles at the bank. The witness admitted that the notice to show cause accounted him 7 days to respond which he did including the second notice dated 11th July 2018 attended the hearing was infirmed of his rights and tendered his evidence, was reminded from employment and notified of the right to appeal, appealed, was heard and the termination of employment upheld. CWI admitted that he had loans with the Respondent and was repaying at staff rates as per the agreement.
Respondent’s Evidence;
RWI Mr. Duncan Macharia confirmed on cross examination that he received instructions from the Head of Security Mr. Karuri who had received the same from Human Resource. It was his evidence that although he prepared an investigation report and investigated the matter further after the claimant’s response, he could not confirm whether the claimant had been given a copy of the reports and under the manual, instructions were supposed to come from the team leader of the employee.
The witness admitted having accessed the operating system of the Bank including the accounts which were credited by the bank but was unaware of the relationship between the claimant and Phyllis but did later. That time of the monies credited to Daphul Enterprises found its way to the claimant. The witness admitted having sat at the disciplinary hearing.
On re-examination, RWI testified that the Code of contract and Ethics Permitted the Respondent bank to access customer accounts and he did so as many members of staff were involved and were being protect and Daphul Enterprises distributed the cash received for purposes of laptops.
RWII, Tabitha Mutua confirmed that the Respondent issued the claimant with two notices to show cause and received the second one on 18th July 2018 the last dated on which he was supposed to respond to it is as per the claimant’s response but contested the date of receipt of the notice. That the 1st notice to show cause was received on 16th May 2018 and it was 12 pages and the claimant complained about the time given.
The witness admitted that the Respondent’s Memo dated 5th January 2018 and the notices to show cause issued thereafter related to the same issue and the claimant had obtained at furniture loan in 2016 and laptop loan in 2017 for all the persons the claimant allegedly assisted.
RWII further confirmed that the Team leader initiated the disciplinary process and issued the notice to show cause but, in this case, they were signed by the Director of Human Resource which according to RWII was in accord with the Respondent’s manual. The witness admitted that water the manual, the notice of hearing had to be issued at least 3 days prior to the hearing the claimant received it on Thursday 23rd August 2018 for a hearing scheduled for Monday 27th 2018 and the claimant attended the hearing alone.
Similarly, the witness confirmed that although there was an investigation reports the claimant was not given a copy suggesting that the claimant did not request for a copy.
That the minutes of the disciplinary hearing did not disclose the membership of the committee and the claimant signed the minutes.
It was RWII’s evidence that the bank accessed the accounts of Daphul Enterprises and did not require the claimant or his wife’s consent to do so and both were aware of the investigations. The witness could not confirm whether the claimant was updated on repayment of the sums owed to the Respondent.
On re-examination, RWII testified that the 1st notice to show cause was based on Audit findings and the 2nd was issued to explain the allegations. According to the witness information relevant to a particular employee was captured in the notice to show cause and the Respondent conducts transaction maintain to ensure compliance with the law. That the internal audit unearthed irregularities involving many members of staff and although the claimant’s loan was restructured the sum of Kshs.5080,845.92 was outstanding.
Claimant’s submissions
On malice by the Respondent’s Counsel relied on the decision in David V Registered Trustees of Scott Christian University [2022] KEELRC 1386(KLR), Sammy Kipmeli Yator V Co-operative Bank of Kenya (2016) eKLR, Dr. Joseph Maingi Maitha V Permanent Secretary Ministry of Medical Services & 7 others (2015) eKLR to urge that;
(i) A warning extinguishes a charge
(ii) A warning and termination of employment amounted to double punishment and
(iii) A disciplinary process quenches the accusation culminating to the process to urge the court to find and hold that termination of the claimant’s employment was tainted with malice.
Concerning breach of the staff manual reliance was placed on the decision in Manyonyi African Medical and Research Foundation (2026) KECA 101 (KLR) to urge that if the employer breaches the procedure termination of the employee’s employment is unlawful.
Further, reliance was placed on the decision in Susan Oyatsi V Judicial Service Commission [2022] KEELRC & (KLR) to submit that the staff manual is binding on the employer to urge that the respondent deviated from the manual.
Counsel submitted that termination of the claimant’s employment was not in accord with the provisions of the action 45 (2) (c) and 41 of the employment Act, in that the respondent accorded the claimant a short period to respond to the notice to show cause, was not accorded the necessary documentation to enable him prepare for the hearing.
Reliance was placed on the decisions in Kenya Plantations and Agricultural Workers Union V. Migotiyo Plantations Ltd (2021) eKLR Michael Odhiambo Opiyo V Bidco Africa Ltd (2021) KEELRC 1832 KLR Ojenge V Mabati Rolling Mills Ltd [2025] KEELR 2614 (KLR) Kenya Ports Authority V Fadhil Juma Kisuwa (2017) eKLR, Shollei V Judicial Service Commissioner and Mary Chemweno Kiptui V Kenya Pipeline Co. Ltd (2014) eKLR. On breach of marital privacy counsel for the claimant submitted that protection of an employee’s privacy constituted protection of his/her dignity and Mr. Macharia admitted having viewed transactions between the claimant and his wife. It was submitted that the claimant and his wife expected privacy in their communication and publishing transactions between them by the Respondent violated the claimant’s right to marital privacy.
Counsel submitted that since the claimant and the Respondent had a loan restructuring agreement and the repayment was uptodate the Respondent’s Counter-claim for recall of loan facilities had been overtaken by events.
On reliefs, counsel submitted that the claimant merited 12 months compensation, salary in lieu of notice damages for breach of constitutional rights.
Respondent’s submissions
On termination of the claimant’s employment, reliance was placed on Walter Ogal Aruro V. Teachers Service Commission (2013) eKLR on the twin test, National Union of Water and Sewerage Employees V Meru Water & Sewerage Services on gross misconduct to submit that in banking dishonesty and breach of trust justified dismissal of an employee.
Reliance was also placed on Kenya Revenue Authority V Reuwel Waithak Gitahi & 2 others (2019) eKLR on the standard of proof in employment cases to urge that the claimant queried the Banks BFUB system numerously his role notwithstanding.
Also cited were the sentiments of the court in Janet Nyandiko V Kenya Commercial Bank (2017) eKLR cited with approval in National Bank of Kenya V. Anthony Njue John (2019) eKLR on the reason(s) for termination of employment to submit that the claimant received part of the monies advanced by the Respondent to purchase a laptop and furniture, thus misapplying the loans.
According to Counsel, the claimant did not disclose conflict of interest. Counsel submitted that in previous cases such as Waithira V Co-operative Bank of Kenya Ltd (2024) KEELRC 13180 (KLR) and Wamalwa V Cooperative Bank of Kenya Ltd (2025) KEELRC 1080 (KLR) courts had in found that bank employees had breached their trust by participating in the diversion of funds.
On the procedure employed by the Respondent in the termination of the claimant’s employment, counsel submitted that it was fair in that the Respondent conducted investigations to un earth the diversion of funds and it could not be faulted on the basis of the originator of the process.
Citing the decision in Mutwol V Moi University [2022] eKLR counsel urged that the claimant was issued with and received a notice to show cause and a further notice expounding the issue and he responded and was granted 4 days to prepare for the hearing. Reliance was placed on Hosea Akunga Ombwori V Bidco oil Refinances Ltd (2017) eKLR
According to counsel, the claimant was accorded all his rights citing the sentiments of the Court in Loice Otieno V Kenya Commercial Bank (2013) eKLR to highlight the elements of fair hearing.
Counsel summitted that the Respondent bank ascertained the diversion of funds from accounts held by the bank and no private communication was intercepted.
The bank investigated its own records as mandated by law and the claimant could not cite breach of his right of privacy and as held in Henry Mutundu V Chairperson Independent Electoral and Boundaries Commission and another: Attorney General Interested Party (2019) KEELRC 1602 (KLR)
On reliefs, counsel submitted that the claimant was not entitled to any as his terminal dues were paid, termination of employment was fair, his constitutional rights were not violated and did not have clean hands.
Finally, counsel submitted that the Respondent was entitled to the Counter-claim of Kshs.5,080845.92 the restructuring arrangement notwithstanding citing the sentiments of the court in National Bank of Kenya Ltd V Pipeplastic Samkolit (K) Ltd & another (2001) eKLR
Analysis and determination
It is common ground that the Respondent employed the claimant effective 25th July, 2008 as a Graduate clerk initially under a six months probationary period, was provided to supervisory Grade 2 effective 2nd November, 2017 at a consolidated salary of Kshs.197,002.00 and confirmed as section Head Grade effective 11th August 2013.
Notably, there was accoladed in 2012, on accounts 2017 for exceeding expectation and for exceptional customer service Documentary evidence on record revealed that both Daphul Enterprises and classic make furniture belonged to one Phyllis Tata Ouna mobile number 0725921240 registered on 26th July 2016 and 1st August 2016, five (5) days apart and both businesses were blacklisted by the Respondent in the acquisition of laptops and furniture by staff effective 22nd January 2018. The Respondent had issued a memo dated 5th January 2018 for having noted that some members of staff were deviating proceeds from laptop loans, furniture loans and compassionate loans as cash benefits, it had also noted that some staff were using falsified chattels as security for period loans.
According to the Respondent the claimant was involved in a scheme to defraud the Respondent bank by diversion of laptop and furniture loans as neither the laptops nor the furniture was supplied and was his wife’s business was charging a commission of Kshs.5260 for a laptop and Kshs.10,000 to Kshs11,500 for furniture loans and quarried customer accounts to confirm disbursements and was thus guilty of breach of trust and facilitated staff to divert loans obtained to purchase laptops and furniture.
According to the Claimant he had disclosed that Phyllis Tata Ouma was his wife and was thus doing legitimate business but admitted on cross-examination having received a total of Kshs.1600 from Daphul Enterprises after he secured the laptop loan. The claimant neither denied having obtained the laptop and furniture loans nor having quarried customers accounts as alleged by the Respondent and did not avail evidence to show that the account holders requested him to do so.
Surprisingly, the claimant allegedly changed the laptop he acquired for developing operational problems but failed to notify the bank or avail it for scrutiny so as to ensure that its particulars were captured in another invoice. After all it was the security. The claimant’s principal defence that he had no business with the two businesses operated by his wife was unconvincing bearing in mind that the claimant and many of his colleagues used the two business to secure laptop and/or furnish loans. A Panoramic view of the evidence reveals that invoices from Daphul Enterprises and classic make furniture diverting of accounts by the claimant and accepting Kshs.16000 from Daphul Enterprises after the loan had been disbursed was not planned and coincidental but a well-executed scheme to enable the claimant and his colleagues secure staff loans on the pretext that they wanted to purchase furniture’s laptops, a dishonest and dishonorable conduct for a personal in a fiduciary relationship with their customers and clients.
Relatedly, the claimant avers that the Respondent bank infringed their constitutional right to privacy. It is told that the right to privacy is a constitutional imperative Article 31 of the Constitution of Kenya provides. Every person has the right to privacy which includes the right not to have-
(a) Their person, home or property searched.
(b) Their possession seized.
(c) Information relating to their family a private attain unnecessarily required or revealed; or
(d) The privacy of their communications in fringed.
Needless to belabour the foregoing provision is not exhaustive on the scope of privacy and the same extend to private information in the possession of a third party. In the context of banking the bank owes its customers a duty of secrecy or confidentiality fortified by the sentiments of Onyango Otieno JA in Standard Chartered Bank Ltd V. Intercom Femos Ltd & 4 others (2004) KECA 163 (KLR) as follows:
“the Banks duty to secrecy responding a customers account and matters relating to it is never in dispute. The banks, whether collecting banks or paying banks have a duty to ensure that customers account and matters relating to it are kept secret or are made confidential. There is no doubt about that for it is that understanding that anybody either as individual or as a corporate body would ever think of putting his money in a bank.
Further, if the same confidentiality was not assured, any crimes would be committed as a consequence of knowing what one has in his or its count and further, commercial transaction would not flourish.
In the case of Tournier V. National Provincial and Union Bank of England Ltd (1923) ALLER 550, Banker LJ stated as follows:
“The case of the Banker and his customer appears to me to be in which the confidential relationship between the parties is very marked. The credit of the customer depends very largely upon the strict observance of that confidence.”
However, as rightly accepted by the superior court, the same duty which is a legal duty arising out of contract, is not an absolute duty. It is a qualified duty. I say the duty arises out of a contract because as Lord Atkim LJ states into same case of Tournier versus National Provincial and Union Bank of England Ltd, the customer and the bank in their relationship have one of the implied terms of their contract which is that the bank would abstain from disclosing information as to the affair of the customer without the customer’s consent. Accepting that position and accepting that the duty to maintain confidentiality is not absolute but it is qualified…
Or put another way – what are the qualifications of the same duty… sum of these exceptions are; where the bank has a duty to the public to disclose; where disclosure is under compulsion of law; when the interest of the bank requires disclosure; where disclosure is made by the express implied consent of the customer (see Tournier versus National Provincial and Union Bank of England Ltd (1923) ALLER 550 at page 544. Under those circumstances the duly put upon the bank not to disclose customers secrecy may be waived. The giving rise to the inquiries must meet the qualifications above…
In the instant case, there existed a banker customer relationship between the claimant’s wife and the Respondent was bound to observe confidentiality. It is not in dispute that the Respondents investigations department viewed the accounts of Daphy Enterprises and Classic make Furniture (Phylis Tata Ouma) in the course of investigating alleged diversion of laptop and furniture loans by staff and prepared an audit report as well as an investigation report, which it used to charge and prosecute the claimant and eventual termination of his employment.
According to the claimant the Respondent breached his right of privacy but as demonstrated above, the right to privacy is not absolute and having entered into a banker customer relationship by opening a bank account with the Respondent bank the attendant principles of banking law governed the relationship between the parties.
The bank was investigating abuse of its products by its own staff which the bank believed was perpetrated through Daphyl Enterprises and Classic Make Furniture, the alleged vendors of computers and furniture Respectively and which belonged to the claimant’s wife.
To eliminate the suspicion the Respondent had to follow the money or loan in this case and found that the amounts disbursed would be withdrawn immediately and sent to other persons including the claimant in this case.
Although the claimant represented himself as a customer to Daphyl Enterprises and Classic Make Furniture his conduct contradicted the representation and in particular viewing customer accounts where employees had applied for furniture or computer loans. Similarly, both businesses were registered in 2016 in quick succession.
Had the Respondent not investigated the accounts of Daphyl Enterprises and Classic Make Furniture (Phylis Tata Ouma), it would not have discovered that staff loans for the purchase of furniture and laptops were being diverted by staff using vendors who were known to the staff to ensure that they received cash as opposed to the laptop or furniture.
It is not in contest that, several following the audit and investigation members of staff were dismissed from employment including the claimant. RWI confirmed that Respondent’s Business Code of Conduct and Ethics authorized the bank to view customer accounts. The Court is in agreement’s witnesses that it did not require the claimant and his wife’s consent to publish the investigation report. They were also aware of the investigation.
From the foregoing it is the finding of the court that the Respondent had sufficient justification to access the accounts of Daphyl Enterprises and Classic Make Furniture and trace the amount it had advanced the claimant to ascertain it was obtained for the purposes for which it was given in the first instance consistent with the exceptions to the principle in Tournier versus National Provincial and Union Bank of England Ltd (supra) and in particular protection of the bank’s interests. The claimant has failed to prove that the Respondent violated his right of privacy or that of his wife or both. Under the provisions of section 45(2) of the Employment Act.
(2) A termination of employment by an employment is unfair if the employer fails to prove-
(a) that the reason for the termination is valid;
(b) that the reason for the termination is a fair reason;
(i) related to the employees conduct capacity or
compatibility; or
(ii) based on the operational requirements of the
employer; and
(c) that the employment was terminated in accordance with fair procedure.
If an employer fails to prove the reason or reasons for termination of an employee’s employment, the termination is deemed to have been unfair. Under section 43(2) of the Employment Act;
The reason or reasons for termination of a contract are the matter that the employer at the time of termination of the contract genuinely believed to exit and which caused the employer to terminate the services of the employee. In Galgalo Jarso Jillo V Agricultural Finance Corporation (2021) eKLR Manani J stated as follows;
…All that is required is far the employer to have a reasonable basis for genuinely believing that the ground exists.”
See also Naima Khamis V Oxford University Press (EA) Ltd (2017) eKLR and Kenya Revenue Authority V Reuwel Waithak Gitahi & 2 others (2019) eKLR on the Standard of Proof and British Layland (UK) Ltd V Sweft (1981) IRLR 91 on the range of reasonable responses test”.
In this case, from the evidence on record, it is discernible that the Respondent’s staff took furniture and laptop loans at staff rates using specific firms as vendors of the items for purposes of diverting the amount to other purposes, and the investigation report laid it bare. In the court’s view, the Respondent evidentiary demonstrated that it had a reason (s) to terminate the claimant’s employment as it did.
Concerning procedure, the provisions of section 45(2) (c) of the Employment Act are unambiguous that the procedure must have been fair. In addition, the provision of section 41 of the Act person be the elements of procedural fairness as remised by the Court of Appeal in Postal Corporation of Kenya V Andrew K. Tanu (2019) eKLR the Court of Appeal held that the elaborate procedure prescribed under section 41 of the Employment Act was mandatory and it is designed to ensure fairness in the process of terminating an employee’s employment.
During the hearing, it emerged that the Respondent did not comply with its staff manual with regard to who instructed the investigation department or who commenced the disciplinary process. While the manual placed the Team leader at the centre of the disciplinary process, the claimant’s Team leader appeared to have played no role in this case as the notice to show cause was issued by the Director of Human Resource.
Under paragraph 10.5 (iv) of the Respondent’s staff manual where an employee committed a serious offence requiring investigations, the Team Leader was supposed to inform the Director Human Resource and Head of Security and request for investigation.
RWI confirmed that his supervisor, the Head of Security, Mr. Edwin Karuri received instructions from Human Resource. It also emerged that the Respondent availed neither the internal audit which led to the first notice to show cause, nor the investigation report which culminated in the termination of the claimant employment. Both RWI and II confirmed that no report was availed to the claimant. The reports could have been availed on request could not in the court’s view avail the Respondent. The Respondent’s testimony that on notices to the claimant, he received the 2nd notice to show cause on 18th July, 2018, the date by which he was supposed to respond to its contents. RWII disputed the date of receipt of the letter by the claimant insisting that he received it on 17th July 2018 but had no proof.
In his response dated 18th July, 2018, the claimant stated;
“I confirm receipt of your further show cause letter dated 11th July 2018 through the Head of Department on 17th July, 2018 and received by me through my immediate leader on 18th July, 2018.”
Even if the claimant received the letter on 17th July, 2018 having been prepared on 11th July, 2018 the one (1) day notice would not have been fair.
Equally, the claimant received the first notice to show cause dated 8th May, 2018 on 16th May 2018 and a response was required by 18th July, 2018, a 12-page document. It is rather curious that both letters to the claimant were served upon him very late in both cases 7 days after the letters were prepared. What is coincidental or by design?
In the first letter dated 8th May, 2018, the claimant registered his displeasure with the time given bearing in mind that he was still in employment a fact RWII confirmed on cross-examination. As regards invitation to the disciplinary hearing, the respondent’s staff manual paragraph 10.14.6 was emphatic that the Human Resource Division had to send the written invitation at least three (3) working days before the date of the hearing.
On cross-examination, RWII confirmed that the claimant received the invitation on 23rd August 2018 and hearing was scheduled for 27th August, 2018. While 23rd August 2018 was a Thursday, 27th August was on Monday. RWII confirmed that the notice accorded the claimant two (2) working days only and equally confirmed that the claimant all ordered the hearing alone and declined counsel’s suggestion that the notice period may have been the cause.
In the court’s view, the short notices the Respondent accorded the claimant to respond to the two (2) notices to show cause and the invitation for the disciplinary hearing coupled with the refusal to copies of the audit and the investigation reports which it relied upon to terminate the claimant’s employment impended the claimant’s right to fair hearing and vitiated the termination of employment.
In Evans Odhiambo Kideru V 4 others V Ferdinard Waititu & 4 others (2014) eKLR, the Supreme Court of Kenya held:
“Fair hearing, in Principle Incorporates the concept of audi arteram partem (hear the other side or no one is condemned unheard) and nemo Judex in Causa Sua (no man shall be a judge in his own cause) Otherwise referred to as the rule against bias. Peter Kaluma Judicial Review: Law, Procedure and Practice 2nd Edition Nairobi, 2009 at 195 notes that the rules of natural justice, generally refer to procedural fairness in decision making…
What then are the norms or components of a fair hearing? The Supreme Court of India in Indru Ramchand Bharvam & Others V Union of India & Others 1988 SCR Subl (1) 544, 555 found that a fair hearing has two justiciable elements:
(i) an opportunity of hearing must be given; and
(ii) that opportunity must be reasonable (acting Bal Kissen Kejriwal V. Collector of Customs Calculta & Others AIR 1962 Cal. 460…”
The Court left not doubt that the right to fair hearing is a wife concept and incorporates the right to fair trial. See Mohamad Abdi Mohamud V Ahmed Abdullahi Muhamad & 3 others (2018) EKLR and Karan V Ochieng & 2 Others (2018) KESC 6 (KLR) among others.
Clearly, a one (1) or two (2) days notice to respond to the notice to show cause is patently unreasonable unless the circumstance shows that neither party had a fairer alternative. Mine was shown in this case. A two (2) days notice to attend a disciplinary hearing in contravention of the Respondent’s Staff Manual, which ordained at least three (3) working days was unreasonable and cannot pass muster. An employee facing disciplinary proceedings ought to be accorded sufficient time and facilitation, by way of the evidence the employer intends to rely upon at the hearing and other relevant documents.
The documents and time allow the employee a distinct opportunity to prepare his/her defence while case in accord with the right to be heard. Similarly, it affords the employee sufficient time to procure witness or a colleague to accompany him during the hearing. A weekend is not sufficient. The court is not persuaded that the fact that RWI was part of the disciplinary hearing panel, having previously investigated the allegations against the claimant and other staff affected the fairness of the panel nothing turns on the issue.
The non-availment of the documents the Respondent relied upon in its grievant with the claimant infringed his right to fair hearing and analogous to the short notices vitiated the termination of the claimant’s employment. See in this regard Postal Corporation of Kenya V. Andrew K. Tanui (supra), Ol Pajeta Ranching Co. Ltd V. David Wanjau Muharo (2017) KECA 329 (KLR) and Regent Management Ltd V Wilberforce Ojiambo Oundo (2018) KECA 883 (KLR) under section 45 (4) of the Employment Act.
A termination of employment shall be unfair for purposes of this part where:
(a) the termination is for one of the reasons specified in section 46; or
(b) it is found out that in all the circumstances of the case the employer did not act in accordance with justice and equality in terminating the employment of the employee.
In determining whether it was just and equitable for an employer to terminate the employment of an employee, the court must consider the factors enumerated in section 45(5) of the Employment Act, including the procedure adopted in reaching the decision, communication to the employee of the decision handling of appeal if any, conduct and capability of the employee until termination of employment, compliance with statutory provisions including issuance of certificate of service. In this case, the claimant served the Respondent for about 10 years and one (1) months, which neither long nor short and had no recorded warning or an misconduct and the Team Leader gave him a good recommendation dated 14th September, 2018.
Similarly, the Respondent notified him that he could collect the certificate of service from the Human Resource Office. Having found that the short notices the Respondent gave the claimant to respond to the notice to show cause and attend the disciplinary, leaving coupled with the non-availment of the documents the Respondent relied upon vitiated the termination of the Respondent’s employment, its is the finding of this court that termination of the claimant’s employment by the Respondent was procedurally unfair.
Appropriate relief
Having found as above, declaration that termination of employment was unfair was merited. The claimant as failed to prove that his constitutional right to privacy was violated by the Respondent. The declaration sought is disallowed.
As regards salary in lieu of notice paragraph 2 of the Letter of termination of employment dated 17th September, 2018 stated that he should be paid the same and led no evidence to prove that it was not paid. The claim is declined.
On interest rates, the claimant testified that his loan repayments were up to date and RWII tendered no evidence to demonstrate that the claimant had not been paying instalments in accord with the loan agreement. The claim lacked particulars and it is dismissed.
On compensation, having found that termination of the claimant’s employment by the Respondent was unfair, the claimant is entitled to compensation in accord with the provisions of section 49(1) (c) of the Employment.
Considering that the claimant was an employee of the Respondent for about 10 years and one (1) month had no recorded warning from the Respondent but did not express his wish to remain in the Respondent’s employment or appeal the Respondent’s decision as per the Staff Manual, was in farming business and substantially contributed to the termination of his employment the equivalent of three (3) months gross salary in fair Kshs.614,646.00.
The Respondent’s Counter-claim of Kshs.5,080,845.92 was not significantly, the claimant admitted that his loan repayment was uptodate as per the arrangement between the parties.
The prayer is declined.
In the upshot, judgment is entered in favour of the claimant against the Respondent in the following terms.
(a) Declaration that termination of employment was unfair.
(b) Equivalent of three (3) months gross salary Kshs.614,646.00.
(c) One month’s salary in lieu of notice, if not paid.
(d) Costs of the suit at ½ scale.
DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI
ON THIS 24TH DAY OF MARCH, 2026
DR. JACOB GAKERI
JUDGE
ORDER
In view of the declaration of measures restricting court operations due to the COVID-19 pandemic and in light of the directions issued by His Lordship, the Chief Justice on 15th March 2020 and subsequent directions of 21st April 2020 that judgments and rulings shall be delivered through video conferencing or via email. They have waived compliance with Order 21 Rule 1 of the Civil Procedure Rules, which requires that all judgments and rulings be pronounced in open court. In permitting this course, this court has been guided by Article 159(2)(d) of the Constitution which requires the court to eschew undue technicalities in delivering justice, the right of access to justice guaranteed to every person under Article 48 of the Constitution and the provisions of Section 1B of the Civil Procedure Act (Chapter 21 of the Laws of Kenya) which impose on this court the duty of the court, inter alia, to use suitable technology to enhance the overriding objective which is to facilitate just, expeditious, proportionate and affordable resolution of civil disputes.
DR. JACOB GAKERI
JUDGE
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