A. INTRODUCTION
1. By a Memorandum of Claim dated 16th October 2019, the Claimant, Duncan Mwamboga Maghanga, moved this court against the Respondent, Tavevo Water and Sewerage Company Limited, seeking a declaration that the termination of his employment was unfair, unjust and wrongful, together with an order for payment of his terminal and contractual dues, costs and interest.
2. The Respondent entered appearance and filed a Response to Claim, subsequently amended on 23rd September 2020, in which it denied the Claimant’s allegations and averred that his summary dismissal was founded on valid and justifiable grounds, and was preceded by a fair and lawful disciplinary process undertaken in compliance with the Employment Act, 2007 and its own Human Resource Policy Manual.
3. The suit proceeded to full hearing. The Claimant testified as the sole witness in support of his case and produced documents in evidence. The Respondent called two witnesses in its defence, namely Mohammed Ali, its Board Chairperson (RW1), and Osumbo Oluoch, an auditor (RW2). At the close of the hearing, the parties filed and exchanged written submissions.
4. This judgment is delivered after careful evaluation of the pleadings, the evidence tendered, the record of cross-examination, the documentary exhibits produced by both parties, and the rival submissions of counsel.
B. THE CLAIMANT’S CASE
5. The Claimant’s case, as pleaded and as testified to, is that he was employed by the Respondent’s Board of Directors as Finance and Administration Manager vide a letter of appointment dated 31st March 2014, on a three-year contract effective 1st April 2014, at a monthly consolidated salary of Kshs. 150,000. Upon satisfactory performance, his contract was renewed for a further three-year term with effect from 1st July 2017 to 30th June 2020, at an enhanced monthly consolidated salary of Kshs. 180,660.
6. On 2nd January 2018, the newly appointed County Executive Committee Member for Water and Irrigation (“the CECM”), purporting to act in his capacity as a member of the Respondent’s Board of Directors, wrote to the Managing Director requesting the Respondent’s annual reports. The task of compiling the reports was assigned to the Claimant, who duly completed and forwarded them by 8th January 2018. No query, clarification or complaint was thereafter raised with the Claimant regarding the content of those reports.
7. On 1st February 2018, while the Claimant was on annual leave, the CECM issued a letter placing him on indefinite compulsory leave, on the ground that the Respondent’s finances, as reflected in the reports so submitted, showed the company to be insolvent. The Claimant was directed to hand over to the Management Accountant. It is not disputed that at the material time, the tenure of the Respondent’s substantive Board of Directors, the body vested with authority over senior staff discipline under Clause 4.6 of the Human Resource Policy Manual, had lapsed in December 2017, and that no Board was in place.
8. Aggrieved, the Claimant, together with the Managing Director, moved this court vide Mombasa ELRC Miscellaneous Civil Application No. 1 of 2018, and obtained ex parte orders from Rika, J. on 15th February 2018 staying the decision contained in the CECM’s letter and directing that the Claimant be reinstated to his position without interference in the discharge of his duties.
9. Notwithstanding that order, when the Claimant reported back to his office on 25th February 2018, he found that the locks to his office had been changed, and he had to be let in by the Personal Assistant to the CECM. He further discovered that the Respondent’s bank signatories had been altered, excluding him and the Managing Director, contrary to the Board’s mandate. A request that the position be reversed elicited only a promise of “further advice in due course,” which was never given.
10. A new Board of Directors was constituted and inaugurated in mid-March 2018. On 17th March 2018, the new Board Chairman, Mr. Constantine Malai, summoned the Claimant and informed him that he had been instructed “not to work with” the Claimant and the Managing Director, and advised the Claimant to proceed on leave “to let the situation cool down” and to explore “the political angle” to resolve the impasse. The Claimant’s leave, ordinarily authorised by the Managing Director, was thereafter personally directed by the Chairman, and was, on the unrebutted evidence, continuously extended at the prompting of the Human Resource office, such that between March 2018 and 27th June 2018 the Claimant was kept out of active duty.
11. On 27th June 2018, three days before his extended leave was due to lapse, the Claimant received a letter headed “Suspension,” dated 27th June 2018, alleging non-performance and an irregular employment contract. The Claimant’s evidence, corroborated in material particulars by RW1 under cross-examination, is that this was in fact the first of three different letters bearing the same date and reference number but materially different content and addressees, a matter examined at length below.
12. The Claimant responded to the suspension/show-cause letter on or about 16th July 2018, denying the allegations for want of specificity and requesting the audit reports referenced therein, which were never supplied to him. On 25th July 2018, at 3.23 p.m., he received a one-line email inviting him to “appear before the BOD” the following morning at 10.00 a.m. He attended at the appointed hour but was not received until 3.00 p.m. The session, chaired not by the Board Chairman but by the Chairman of the Human Resource Committee, Dr. Jimmy Kihara, was, on the Claimant’s account, a general discussion of the Respondent’s operations; at no point, he testified, was the suspension letter or his response to it referred to, and he was expressly told the session was “not a grilling session.” He was thanked for his attendance at its conclusion.
13. On 9th August 2018, the Claimant was asked to, and did, return the Respondent’s laptop. On 26th August 2018, he received a letter dated 24th August 2018 summarily dismissing him with effect from 31st August 2018, on seven grounds materially different from, and considerably more numerous than, those set out in the suspension letter of 27th June 2018. His salary, which the letter promised would run to 31st August 2018, was never paid for that period.
14. The Claimant’s case, in sum, is that his separation from employment was the product of a politically motivated and predetermined process, engineered in the wake of a change of guard at the county government, dressed up after the fact in the language of financial impropriety, and executed without a genuine, fair or lawful disciplinary process.
C. THE RESPONDENT’S CASE
15. The Respondent’s amended defence and the evidence of RW1, Mohammed Ali, who described himself as the Board Chairperson, though he candidly conceded under cross-examination that he only became a Board member in March 2018, after the Claimant’s contract had already been renewed, was that the Claimant, as Finance and Administration Manager, bore responsibility for financial discrepancies disclosed upon scrutiny of the Respondent’s annual reports, namely unsettled customer bills of Kshs. 280,000,000, supplier debts of Kshs. 24,000,000 and outstanding bills of Kshs. 103,000,000, said to have rendered the Respondent technically insolvent.
16. RW1 further relied on an internal financial audit covering July 2017 to April 2018, said to have revealed conflict of interest in the renewal of the Claimant’s own contract, irregular procurement, irregular staff recruitment and poor management. On this basis, the Claimant was suspended on 27th June 2018 under Clause 4.6.2 of the Human Resource Policy Manual, invited to a disciplinary hearing by a letter dated 20th July 2018 said to have set out the charges and his right to representation, subjected to hearings on 25th, 26th and 27th July 2018, and, having failed to give satisfactory explanations, summarily dismissed by letter dated 24th August 2018 on grounds of negligence of duty and non-compliance, irregular employment contract, non-adherence to procurement regulations, un-procedural staff recruitment, failure to properly advise the Board, conflict of interest in the renewal of his own contract, and illegal and un-procedural procurement.
17. RW1 maintained that the Claimant’s rights to fair hearing and the rules of natural justice were fully observed, and that the dismissal was both substantively and procedurally sound.
18. RW2, Osumbo Oluoch, testified to being the author of a further audit report, said to have been prepared by the firm of Shulunge & Company on the instructions of an entity styled Betica Company, which had purportedly been sub-contracted for the exercise. His evidence, examined more closely below, does little to advance the Respondent’s case.
D. ISSUES FOR DETERMINATION
19. Arising from the pleadings, the evidence and the parties’ rival submissions, this court considers the following issues to fall for determination:
i. Whether there was a disciplinary hearing preceding the Claimant’s summary dismissal, and if so, whether it met the threshold required in law;
ii. Whether the Claimant’s summary dismissal was, in all the circumstances, substantively and procedurally fair;
iii. Whether the Claimant is entitled to the reliefs sought; and
iv. Who shall bear the costs of the suit.
E. ANALYSIS AND DETERMINATION
The Suspension Letters and Their Bearing on the Fairness and Reliability of the Respondent’s Documentary Case
20. This court must begin with the suspension letters, for they are the foundation stone upon which the entirety of the Respondent’s disciplinary edifice was raised, and, on closer examination, that foundation is shown to be unsound.
21. It emerged from the Claimant’s evidence, and was substantially confirmed by RW1 under cross-examination, that the Claimant did not receive one suspension letter but three, all bearing the same date of 27th June 2018 and the same reference number, yet materially inconsistent with one another. The first, delivered on 27th June 2018, was unsigned and, on its face, addressed the “Managing Director and Accounting Officer” rather than the Finance and Administration Manager. The second, transmitted by email on 29th June 2018 as a purported correction of “typographical errors,” remained unsigned and continued to reference the Managing Director. The third, received on 6th July 2018, was signed, but introduced grounds for suspension that departed materially from those stated in its two predecessors. RW1 could offer no satisfactory explanation for this state of affairs, save to confirm that each of the three documents existed and that they differed.
22. The significance of this is not a matter of pedantry over paperwork. Clause 4.6.2 of the Respondent’s own Human Resource Policy Manual, as elicited from RW1 in cross-examination, requires that discipline of this nature proceed through defined stages, a verbal warning, an official written warning and thereafter a show-cause letter, before the drastic step of interdiction or suspension is taken, and even then, suspension pending criminal proceedings is contemplated as the norm under the Manual. None of those preliminary stages was shown to have been observed. Instead, the Claimant was confronted, without notice, with a document that could not settle on who it was addressed to, what it accused him of, or on what evidentiary basis it was issued.
23. More troubling still is the temporal impossibility exposed by the record. The suspension letter of 27th June 2018 anchored its allegations on “the Auditor-General’s Report and financial statements for the year ending 30th June 2017.” Yet the very report so invoked, when eventually produced by the Respondent, bears a signature date of 5th July 2018, more than a week after the suspension letter was issued and later even than the “corrected” second version. A document cannot form the evidentiary basis of an accusation levelled before that document came into existence. RW1, when pressed on this in cross-examination, could point to no audit report or document before this court predating 5th July 2018 to substantiate the allegation of insolvency contained in the letter of 27th June 2018, and went so far as to state that he doubted whether one ever existed.
24. This court also takes into account the position of RW2’s audit report, tendered as an alternative or supplementary basis for the allegations against the Claimant. RW2 conceded that his own name does not appear anywhere within the body of the report as its author; that the letter introducing and instructing the audit was, in his own words, “backdated”; that he could not place before the court any instrument evidencing his firm’s engagement or Betica Company’s authority to sub-contract an audit of a public water utility, a function ordinarily reserved to the Kenya National Audit Office; that the documents said to support the report’s findings, listed at its own page 5, were never annexed; and that the Claimant, the very officer whose conduct the report purported to indict, was at no stage consulted or involved in its preparation. A report so infirm cannot, in law or in logic, ground a finding of gross misconduct against an employee who was never permitted to test, challenge, or even see it, despite having specifically asked for it in his response of 16th July 2018.
25. A litigant, more so an employer exercising the grave power to end another’s livelihood, is bound by candour and consistency in the documents it produces to justify that exercise of power. Where, as here, the very instruments said to justify a dismissal are shown to be internally contradictory, multiple in origin, unsigned in more than one iteration, and anchored on reports that either did not yet exist at the material time or were demonstrably irregular in their provenance, the court is entitled to, and must, treat the whole of that documentary case with the gravest suspicion. The multiplicity and inconsistency of the suspension letters does not merely raise a procedural quibble; it goes to the very heart of whether the Respondent has discharged the burden placed on it by Sections 43 and 47(5) of the Employment Act, 2007, to prove, on a balance of probabilities, both the existence and the validity of the reasons for terminating the Claimant’s employment. This court finds that it has not.
Whether There Was a Disciplinary Hearing in the Strict Sense, or at All
26. The Respondent’s case stands or falls on the proposition that the Claimant was afforded a disciplinary hearing on 25th, 26th and 27th July 2018, in compliance with Section 41 of the Employment Act, 2007. Having scrutinised the documents produced, the Claimant’s evidence and, critically, the admissions extracted from RW1 in cross-examination, this court is satisfied that no disciplinary hearing, in the strict sense contemplated by the law, or indeed at all, was ever held.
27. First, the very letter said to have formally invited the Claimant to a three-day disciplinary hearing, dated 20th July 2018 and pleaded at length in the Amended Response to Claim and in RW1’s witness statement at paragraph 23, does not exist in the record before this court. RW1 candidly conceded this in cross-examination: “We have no letter in relation to that he was invited to disciplinary hearing on 20/07/2018. Though I have asserted that in paragraph 23 of my witness statement that there was.” An employer who pleads and swears to the existence of a document central to its defence, and then admits under oath that no such document can be produced, cannot be heard to say that the requirements of Section 41 were met.
28. What does exist is a single-sentence email, sent at 3.23 p.m. on 25th July 2018, the very afternoon before the Claimant was required to attend, informing him only that he had “been asked by the Chairman, Board of Directors, TAVEVO to appear for hearing on Thursday 25th July, 2018 at former Municipal Council of Voi Boardroom at 10.00 a.m.” That email is silent as to the nature of the meeting, silent as to whether it was disciplinary in character, silent as to the charges to be answered, silent as to the fact that it was intended to span three days, and silent as to the Claimant’s right, under Section 41(1) of the Act, to be accompanied by a fellow employee or representative of his choice. Section 41 does not contemplate that an employee facing what may prove to be the end of his career should be required to divine, from a single ambiguous sentence received the afternoon before, that he is walking into a disciplinary hearing at all.
29. Second, the Claimant’s own account of what in fact transpired at the meeting he attended is telling, and was not seriously dislodged in cross-examination. He was kept waiting from 9.45 a.m. until 3.00 p.m.; the session was chaired not by the Board Chairman, Mr. Constantine Malai, who signed the suspension letter and to whom the Claimant’s response was addressed, but by the Chairman of the Human Resource Committee, Dr. Jimmy Kihara; several Board members were absent; the Claimant was expressly told the session was “not a grilling session” but a general discussion to “know more about him” and to “shed light on the operations” of the Respondent; and at no point during the hours the meeting was in progress was the suspension letter, or the Claimant’s response to it, ever raised. A meeting at which the very allegations under scrutiny are never mentioned to the accused cannot, by any stretch, be characterised as a hearing of those allegations.
30. Third, the minutes tendered by the Respondent as the record of the “disciplinary” proceedings of 25th, 26th and 27th July 2018 are themselves unreliable as evidence that a fair, or indeed any, disciplinary hearing occurred. They are a single consolidated account of three purported days of proceedings, with no means of discerning what, if anything, occurred on each specific day; they bear a single, unattributed signature at their foot; and, tellingly, the Claimant is nowhere recorded among those “present,” notwithstanding that he was, on the Respondent’s own case, meant to be its central subject. What the minutes in fact disclose, on close reading, is an extended, wide-ranging interrogation of both the Managing Director and the Claimant on the entire gamut of the Respondent’s institutional and financial affairs, an exercise having far more the character of a general inquiry than a focused disciplinary hearing addressed to the specific charges in a suspension letter. Indeed, on the Respondent’s own record, at the conclusion of that lengthy interrogation it was not the full Board that resolved to dismiss; rather, the “Recommendation of the Committee” records only that the Human Resource Committee resolved to recommend to the full Board of Directors that “appropriate disciplinary action” be taken. This is, on its face, a preliminary investigative process and not a hearing at all, and there is no evidence before this court of any subsequent process at which the Claimant was heard on the Committee’s recommendation before the final decision to dismiss him was taken.
31. Fourth, and fatally, the letter of summary dismissal dated 24th August 2018 introduced grounds, namely conflict of interest in the renewal of his contract and illegal and un-procedural procurement, that do not appear at all in the suspension letters that preceded it, and expanded the original two grounds into no fewer than seven. It is trite that grounds not disclosed to an employee in advance, and on which he was never invited to make representations, cannot lawfully found his dismissal. An employee cannot answer a charge he was never told he faced.
32. For these reasons, this court finds as a fact that there was no disciplinary hearing held in respect of the Claimant, whether construed strictly in accordance with Section 41 of the Employment Act, 2007, or at all. What occurred was, at its highest, an unstructured and inadequately minuted general interrogation that never addressed the charges in the suspension letter, was not chaired by the appropriate organ, and was followed by a unilateral, predetermined decision dressed up, after the fact, in the language of due process.
The Non-Appearance of the County Executive Committee Member as a Witness
33. It is a matter of considerable significance to this court that the County Executive Committee Member for Water and Irrigation, whose unilateral intervention set in motion the entire chain of events culminating in the Claimant’s dismissal, requesting the annual reports, alleging insolvency on the strength of them, placing the Claimant on indefinite compulsory leave without lawful authority to do so, a decision this court was compelled to stay by its order of 15th February 2018, and presiding over the change of the office locks and bank signatories in defiance of that order, was neither called as a witness at the purported disciplinary hearing of 25th to 27th July 2018, nor availed to testify at any stage of these proceedings.
34. This omission is not incidental. It was the CECM’s original allegation of insolvency, founded on his own reading of reports the Claimant had himself prepared, that supplied the seed from which every subsequent step, the compulsory leave, the change of locks, the suspension, and ultimately the dismissal, grew. Yet the author of that seminal allegation was never subjected to cross-examination, never required to substantiate under oath the basis of his claim that the Respondent was insolvent, and never asked to explain by what authority, in the admitted absence of a substantive Board of Directors in office in February 2018, he purported to discipline a senior officer answerable, on the Respondent’s own Human Resource Policy Manual and letter of appointment, to the Board alone. RW1 himself, under cross-examination, was constrained to accept that disciplinary authority over senior staff lay with the Board of Directors and not with the CECM, a concession fatal to the legitimacy of the entire chain of events that the CECM’s letter set in train.
35. The evidentiary consequence of this is significant. Where an employer’s case for dismissal rests, even indirectly, on allegations or actions originating from an individual who is never called to give sworn evidence and submit to cross-examination, the court is entitled to draw an adverse inference against the party who bore the burden of proof and yet withheld that evidence, and to treat the underlying allegations as unproven. This principle applies with particular force in the sphere of employment and labour relations, where Article 47 of the Constitution guarantees every person the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair, and Article 50 guarantees the right to a fair hearing, a guarantee extending in principle to fora exercising disciplinary power over a person’s livelihood. A process built upon the unsworn, untested assertions of an absent official, whose very authority to act is itself in serious question, cannot be said to have accorded the Claimant either fair administrative action or a fair hearing. The failure to call the CECM, whether before the internal disciplinary process or before this court, materially undermines the reliability of the reasons advanced for the Claimant’s dismissal and weighs heavily in this court’s finding that the dismissal was both substantively and procedurally unfair.
The Denial of Access to the Claimant’s Office Despite a Subsisting Court Order
36. This court considers it necessary to comment at some length on the conduct of denying the Claimant access to his own office upon his return to work in compliance with the order of Rika, J. issued on 15th February 2018.
37. That order was unambiguous: it stayed the CECM’s letter of compulsory leave and directed that the Claimant be reinstated to his position and permitted to discharge his duties without interference. Rather than that order being honoured, the locks to the Claimant’s office were changed, such that upon presenting himself for duty on 25th February 2018, a senior manager restored to his post by order of this court was reduced to waiting outside his own office for a subordinate, the Personal Assistant to the very CECM whose letter had just been stayed, to come and let him in. Contemporaneously, the bank signatory mandates were altered to exclude the Claimant and the Managing Director, again without Board authority, and a request for their reinstatement as signatories was met with no more than a promise of “further advice in due course” that never came.
38. This conduct cannot be treated as a peripheral or merely embarrassing detail. An order of this court, once issued, does not remain suspended pending the convenience or agreement of the party against whom it operates; it is to be obeyed, in full and without qualification, until set aside or varied by a competent court. To change the locks on an employee’s office and strip him of his financial authority in the immediate aftermath of, and in direct defiance of, an order restoring him to his position is to treat that order with the very interference it expressly prohibited. It signals, in the clearest terms available short of an outright refusal to comply, that the Respondent had no genuine intention of honouring the order, and that the Claimant’s restoration to duty was to be nominal only.
39. More fundamentally, this conduct speaks directly to the question of fair labour practices guaranteed under Article 41 of the Constitution and to the right to fair administrative action under Article 47. Fair labour practice does not begin and end with the mechanics of a disciplinary hearing; it encompasses the entire relationship between employer and employee, including the manner in which an employer treats an employee who has successfully invoked the protection of the courts. An employer that responds to a court order compelling an employee’s reinstatement by physically excluding him from the tools of his office, humiliating him before his own subordinates, and stripping him of his financial signatory authority, is not merely disregarding a procedural nicety; it is engaging in precisely the kind of high-handed, retaliatory and administratively unfair conduct that Articles 41 and 47 of the Constitution were designed to guard against. It is, moreover, cogent evidence, standing quite apart from the question of the suspension letters or the disciplinary hearing discussed above, that the process which culminated in the Claimant’s dismissal some six months later was neither impartial nor undertaken in good faith, but was the continuation, by other and more elaborate means, of the very course of conduct that had already been found sufficiently wanting to warrant urgent interim relief in February 2018. This court associates itself, in this respect, with the observations of this same court in the companion matter of Salimo v Tavevo Water & Sewerage Co. Limited (Cause 70 of 2019) [2026] KEELRC 490 (KLR), concerning the Managing Director who suffered an identical fate, where it was similarly found that the alteration of office locks and bank signatories in defiance of the very order staying the compulsory leave contravened the interim orders of this court.
Substantive Fairness of the Dismissal
40. Section 45(2) of the Employment Act, 2007 renders a termination of employment unfair unless the employer proves that the reason for the termination was valid, that it was a fair reason related to the employee’s conduct, capacity or compatibility, or the employer’s operational requirements, and that the employee was terminated in accordance with fair procedure. Section 43(1) places the burden of proving the reason for termination squarely on the employer, and Section 47(5) confirms that while an employee bears the burden of proving that an unfair termination occurred, the burden of justifying the grounds of termination rests on the employer.
41. Applying these provisions, and adopting the guidance of this court in George Musamali v G4S Security Services Kenya Ltd [2016] eKLR, that termination of employment takes two stages, first there must be a valid and justifiable reason for termination, and once that is established, the termination must be carried out in accordance with the procedure laid down, this court has already found, for the detailed reasons set out above, that the procedural limb was not satisfied. As to substance, the position is scarcely better for the Respondent.
42. The grounds ultimately relied upon in the letter of dismissal, negligence of duty, an irregular employment contract, non-adherence to procurement regulations, unprocedural recruitment, failure to advise the Board, conflict of interest, and illegal procurement, were, save in the broadest and most conclusory terms, never particularised with the specificity the law requires. What precisely did the Claimant fail to do? Which procurement transaction was irregular, and in what respect? Which staff member was unprocedurally recruited, and by what process ought they to have been engaged instead? The Respondent’s own submissions, for all their length, answer these questions only by reference back to the same generalised allegations contained in the impugned suspension letters and the doubtful audit reports already discussed. This court is guided by the Court of Appeal’s finding in Ol Pejeta Ranching Limited v David Wanjau Muhoro [2017] eKLR, that allegations against an employee couched in general terms, unaccompanied by particulars capable of being met, cannot sustain a finding of fair termination.
43. Furthermore, the two audit reports on which the Respondent placed principal reliance, the Auditor-General’s report signed on 5th July 2018
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1. By a Memorandum of Claim dated 16th October 2019, the Claimant, Duncan Mwamboga Maghanga, moved this court against the Respondent, Tavevo Water and Sewerage Company Limited, seeking a declaration that the termination of his employment was unfair, unjust and wrongful, together with an order for payment of his terminal and contractual dues, costs and interest.
2. The Respondent entered appearance and filed a Response to Claim, subsequently amended on 23rd September 2020, in which it denied the Claimant’s allegations and averred that his summary dismissal was founded on valid and justifiable grounds, and was preceded by a fair and lawful disciplinary process undertaken in compliance with the Employment Act, 2007 and its own Human Resource Policy Manual.
3. The suit proceeded to full hearing. The Claimant testified as the sole witness in support of his case and produced documents in evidence. The Respondent called two witnesses in its defence, namely Mohammed Ali, its Board Chairperson (RW1), and Osumbo Oluoch, an auditor (RW2). At the close of the hearing, the parties filed and exchanged written submissions.
4. This judgment is delivered after careful evaluation of the pleadings, the evidence tendered, the record of cross-examination, the documentary exhibits produced by both parties, and the rival submissions of counsel.
B. THE CLAIMANT’S CASE
5. The Claimant’s case, as pleaded and as testified to, is that he was employed by the Respondent’s Board of Directors as Finance and Administration Manager vide a letter of appointment dated 31st March 2014, on a three-year contract effective 1st April 2014, at a monthly consolidated salary of Kshs. 150,000. Upon satisfactory performance, his contract was renewed for a further three-year term with effect from 1st July 2017 to 30th June 2020, at an enhanced monthly consolidated salary of Kshs. 180,660.
6. On 2nd January 2018, the newly appointed County Executive Committee Member for Water and Irrigation (“the CECM”), purporting to act in his capacity as a member of the Respondent’s Board of Directors, wrote to the Managing Director requesting the Respondent’s annual reports. The task of compiling the reports was assigned to the Claimant, who duly completed and forwarded them by 8th January 2018. No query, clarification or complaint was thereafter raised with the Claimant regarding the content of those reports.
7. On 1st February 2018, while the Claimant was on annual leave, the CECM issued a letter placing him on indefinite compulsory leave, on the ground that the Respondent’s finances, as reflected in the reports so submitted, showed the company to be insolvent. The Claimant was directed to hand over to the Management Accountant. It is not disputed that at the material time, the tenure of the Respondent’s substantive Board of Directors, the body vested with authority over senior staff discipline under Clause 4.6 of the Human Resource Policy Manual, had lapsed in December 2017, and that no Board was in place.
8. Aggrieved, the Claimant, together with the Managing Director, moved this court vide Mombasa ELRC Miscellaneous Civil Application No. 1 of 2018, and obtained ex parte orders from Rika, J. on 15th February 2018 staying the decision contained in the CECM’s letter and directing that the Claimant be reinstated to his position without interference in the discharge of his duties.
9. Notwithstanding that order, when the Claimant reported back to his office on 25th February 2018, he found that the locks to his office had been changed, and he had to be let in by the Personal Assistant to the CECM. He further discovered that the Respondent’s bank signatories had been altered, excluding him and the Managing Director, contrary to the Board’s mandate. A request that the position be reversed elicited only a promise of “further advice in due course,” which was never given.
10. A new Board of Directors was constituted and inaugurated in mid-March 2018. On 17th March 2018, the new Board Chairman, Mr. Constantine Malai, summoned the Claimant and informed him that he had been instructed “not to work with” the Claimant and the Managing Director, and advised the Claimant to proceed on leave “to let the situation cool down” and to explore “the political angle” to resolve the impasse. The Claimant’s leave, ordinarily authorised by the Managing Director, was thereafter personally directed by the Chairman, and was, on the unrebutted evidence, continuously extended at the prompting of the Human Resource office, such that between March 2018 and 27th June 2018 the Claimant was kept out of active duty.
11. On 27th June 2018, three days before his extended leave was due to lapse, the Claimant received a letter headed “Suspension,” dated 27th June 2018, alleging non-performance and an irregular employment contract. The Claimant’s evidence, corroborated in material particulars by RW1 under cross-examination, is that this was in fact the first of three different letters bearing the same date and reference number but materially different content and addressees, a matter examined at length below.
12. The Claimant responded to the suspension/show-cause letter on or about 16th July 2018, denying the allegations for want of specificity and requesting the audit reports referenced therein, which were never supplied to him. On 25th July 2018, at 3.23 p.m., he received a one-line email inviting him to “appear before the BOD” the following morning at 10.00 a.m. He attended at the appointed hour but was not received until 3.00 p.m. The session, chaired not by the Board Chairman but by the Chairman of the Human Resource Committee, Dr. Jimmy Kihara, was, on the Claimant’s account, a general discussion of the Respondent’s operations; at no point, he testified, was the suspension letter or his response to it referred to, and he was expressly told the session was “not a grilling session.” He was thanked for his attendance at its conclusion.
13. On 9th August 2018, the Claimant was asked to, and did, return the Respondent’s laptop. On 26th August 2018, he received a letter dated 24th August 2018 summarily dismissing him with effect from 31st August 2018, on seven grounds materially different from, and considerably more numerous than, those set out in the suspension letter of 27th June 2018. His salary, which the letter promised would run to 31st August 2018, was never paid for that period.
14. The Claimant’s case, in sum, is that his separation from employment was the product of a politically motivated and predetermined process, engineered in the wake of a change of guard at the county government, dressed up after the fact in the language of financial impropriety, and executed without a genuine, fair or lawful disciplinary process.
C. THE RESPONDENT’S CASE
15. The Respondent’s amended defence and the evidence of RW1, Mohammed Ali, who described himself as the Board Chairperson, though he candidly conceded under cross-examination that he only became a Board member in March 2018, after the Claimant’s contract had already been renewed, was that the Claimant, as Finance and Administration Manager, bore responsibility for financial discrepancies disclosed upon scrutiny of the Respondent’s annual reports, namely unsettled customer bills of Kshs. 280,000,000, supplier debts of Kshs. 24,000,000 and outstanding bills of Kshs. 103,000,000, said to have rendered the Respondent technically insolvent.
16. RW1 further relied on an internal financial audit covering July 2017 to April 2018, said to have revealed conflict of interest in the renewal of the Claimant’s own contract, irregular procurement, irregular staff recruitment and poor management. On this basis, the Claimant was suspended on 27th June 2018 under Clause 4.6.2 of the Human Resource Policy Manual, invited to a disciplinary hearing by a letter dated 20th July 2018 said to have set out the charges and his right to representation, subjected to hearings on 25th, 26th and 27th July 2018, and, having failed to give satisfactory explanations, summarily dismissed by letter dated 24th August 2018 on grounds of negligence of duty and non-compliance, irregular employment contract, non-adherence to procurement regulations, un-procedural staff recruitment, failure to properly advise the Board, conflict of interest in the renewal of his own contract, and illegal and un-procedural procurement.
17. RW1 maintained that the Claimant’s rights to fair hearing and the rules of natural justice were fully observed, and that the dismissal was both substantively and procedurally sound.
18. RW2, Osumbo Oluoch, testified to being the author of a further audit report, said to have been prepared by the firm of Shulunge & Company on the instructions of an entity styled Betica Company, which had purportedly been sub-contracted for the exercise. His evidence, examined more closely below, does little to advance the Respondent’s case.
D. ISSUES FOR DETERMINATION
19. Arising from the pleadings, the evidence and the parties’ rival submissions, this court considers the following issues to fall for determination:
i. Whether there was a disciplinary hearing preceding the Claimant’s summary dismissal, and if so, whether it met the threshold required in law;
ii. Whether the Claimant’s summary dismissal was, in all the circumstances, substantively and procedurally fair;
iii. Whether the Claimant is entitled to the reliefs sought; and
iv. Who shall bear the costs of the suit.
E. ANALYSIS AND DETERMINATION
The Suspension Letters and Their Bearing on the Fairness and Reliability of the Respondent’s Documentary Case
20. This court must begin with the suspension letters, for they are the foundation stone upon which the entirety of the Respondent’s disciplinary edifice was raised, and, on closer examination, that foundation is shown to be unsound.
21. It emerged from the Claimant’s evidence, and was substantially confirmed by RW1 under cross-examination, that the Claimant did not receive one suspension letter but three, all bearing the same date of 27th June 2018 and the same reference number, yet materially inconsistent with one another. The first, delivered on 27th June 2018, was unsigned and, on its face, addressed the “Managing Director and Accounting Officer” rather than the Finance and Administration Manager. The second, transmitted by email on 29th June 2018 as a purported correction of “typographical errors,” remained unsigned and continued to reference the Managing Director. The third, received on 6th July 2018, was signed, but introduced grounds for suspension that departed materially from those stated in its two predecessors. RW1 could offer no satisfactory explanation for this state of affairs, save to confirm that each of the three documents existed and that they differed.
22. The significance of this is not a matter of pedantry over paperwork. Clause 4.6.2 of the Respondent’s own Human Resource Policy Manual, as elicited from RW1 in cross-examination, requires that discipline of this nature proceed through defined stages, a verbal warning, an official written warning and thereafter a show-cause letter, before the drastic step of interdiction or suspension is taken, and even then, suspension pending criminal proceedings is contemplated as the norm under the Manual. None of those preliminary stages was shown to have been observed. Instead, the Claimant was confronted, without notice, with a document that could not settle on who it was addressed to, what it accused him of, or on what evidentiary basis it was issued.
23. More troubling still is the temporal impossibility exposed by the record. The suspension letter of 27th June 2018 anchored its allegations on “the Auditor-General’s Report and financial statements for the year ending 30th June 2017.” Yet the very report so invoked, when eventually produced by the Respondent, bears a signature date of 5th July 2018, more than a week after the suspension letter was issued and later even than the “corrected” second version. A document cannot form the evidentiary basis of an accusation levelled before that document came into existence. RW1, when pressed on this in cross-examination, could point to no audit report or document before this court predating 5th July 2018 to substantiate the allegation of insolvency contained in the letter of 27th June 2018, and went so far as to state that he doubted whether one ever existed.
24. This court also takes into account the position of RW2’s audit report, tendered as an alternative or supplementary basis for the allegations against the Claimant. RW2 conceded that his own name does not appear anywhere within the body of the report as its author; that the letter introducing and instructing the audit was, in his own words, “backdated”; that he could not place before the court any instrument evidencing his firm’s engagement or Betica Company’s authority to sub-contract an audit of a public water utility, a function ordinarily reserved to the Kenya National Audit Office; that the documents said to support the report’s findings, listed at its own page 5, were never annexed; and that the Claimant, the very officer whose conduct the report purported to indict, was at no stage consulted or involved in its preparation. A report so infirm cannot, in law or in logic, ground a finding of gross misconduct against an employee who was never permitted to test, challenge, or even see it, despite having specifically asked for it in his response of 16th July 2018.
25. A litigant, more so an employer exercising the grave power to end another’s livelihood, is bound by candour and consistency in the documents it produces to justify that exercise of power. Where, as here, the very instruments said to justify a dismissal are shown to be internally contradictory, multiple in origin, unsigned in more than one iteration, and anchored on reports that either did not yet exist at the material time or were demonstrably irregular in their provenance, the court is entitled to, and must, treat the whole of that documentary case with the gravest suspicion. The multiplicity and inconsistency of the suspension letters does not merely raise a procedural quibble; it goes to the very heart of whether the Respondent has discharged the burden placed on it by Sections 43 and 47(5) of the Employment Act, 2007, to prove, on a balance of probabilities, both the existence and the validity of the reasons for terminating the Claimant’s employment. This court finds that it has not.
Whether There Was a Disciplinary Hearing in the Strict Sense, or at All
26. The Respondent’s case stands or falls on the proposition that the Claimant was afforded a disciplinary hearing on 25th, 26th and 27th July 2018, in compliance with Section 41 of the Employment Act, 2007. Having scrutinised the documents produced, the Claimant’s evidence and, critically, the admissions extracted from RW1 in cross-examination, this court is satisfied that no disciplinary hearing, in the strict sense contemplated by the law, or indeed at all, was ever held.
27. First, the very letter said to have formally invited the Claimant to a three-day disciplinary hearing, dated 20th July 2018 and pleaded at length in the Amended Response to Claim and in RW1’s witness statement at paragraph 23, does not exist in the record before this court. RW1 candidly conceded this in cross-examination: “We have no letter in relation to that he was invited to disciplinary hearing on 20/07/2018. Though I have asserted that in paragraph 23 of my witness statement that there was.” An employer who pleads and swears to the existence of a document central to its defence, and then admits under oath that no such document can be produced, cannot be heard to say that the requirements of Section 41 were met.
28. What does exist is a single-sentence email, sent at 3.23 p.m. on 25th July 2018, the very afternoon before the Claimant was required to attend, informing him only that he had “been asked by the Chairman, Board of Directors, TAVEVO to appear for hearing on Thursday 25th July, 2018 at former Municipal Council of Voi Boardroom at 10.00 a.m.” That email is silent as to the nature of the meeting, silent as to whether it was disciplinary in character, silent as to the charges to be answered, silent as to the fact that it was intended to span three days, and silent as to the Claimant’s right, under Section 41(1) of the Act, to be accompanied by a fellow employee or representative of his choice. Section 41 does not contemplate that an employee facing what may prove to be the end of his career should be required to divine, from a single ambiguous sentence received the afternoon before, that he is walking into a disciplinary hearing at all.
29. Second, the Claimant’s own account of what in fact transpired at the meeting he attended is telling, and was not seriously dislodged in cross-examination. He was kept waiting from 9.45 a.m. until 3.00 p.m.; the session was chaired not by the Board Chairman, Mr. Constantine Malai, who signed the suspension letter and to whom the Claimant’s response was addressed, but by the Chairman of the Human Resource Committee, Dr. Jimmy Kihara; several Board members were absent; the Claimant was expressly told the session was “not a grilling session” but a general discussion to “know more about him” and to “shed light on the operations” of the Respondent; and at no point during the hours the meeting was in progress was the suspension letter, or the Claimant’s response to it, ever raised. A meeting at which the very allegations under scrutiny are never mentioned to the accused cannot, by any stretch, be characterised as a hearing of those allegations.
30. Third, the minutes tendered by the Respondent as the record of the “disciplinary” proceedings of 25th, 26th and 27th July 2018 are themselves unreliable as evidence that a fair, or indeed any, disciplinary hearing occurred. They are a single consolidated account of three purported days of proceedings, with no means of discerning what, if anything, occurred on each specific day; they bear a single, unattributed signature at their foot; and, tellingly, the Claimant is nowhere recorded among those “present,” notwithstanding that he was, on the Respondent’s own case, meant to be its central subject. What the minutes in fact disclose, on close reading, is an extended, wide-ranging interrogation of both the Managing Director and the Claimant on the entire gamut of the Respondent’s institutional and financial affairs, an exercise having far more the character of a general inquiry than a focused disciplinary hearing addressed to the specific charges in a suspension letter. Indeed, on the Respondent’s own record, at the conclusion of that lengthy interrogation it was not the full Board that resolved to dismiss; rather, the “Recommendation of the Committee” records only that the Human Resource Committee resolved to recommend to the full Board of Directors that “appropriate disciplinary action” be taken. This is, on its face, a preliminary investigative process and not a hearing at all, and there is no evidence before this court of any subsequent process at which the Claimant was heard on the Committee’s recommendation before the final decision to dismiss him was taken.
31. Fourth, and fatally, the letter of summary dismissal dated 24th August 2018 introduced grounds, namely conflict of interest in the renewal of his contract and illegal and un-procedural procurement, that do not appear at all in the suspension letters that preceded it, and expanded the original two grounds into no fewer than seven. It is trite that grounds not disclosed to an employee in advance, and on which he was never invited to make representations, cannot lawfully found his dismissal. An employee cannot answer a charge he was never told he faced.
32. For these reasons, this court finds as a fact that there was no disciplinary hearing held in respect of the Claimant, whether construed strictly in accordance with Section 41 of the Employment Act, 2007, or at all. What occurred was, at its highest, an unstructured and inadequately minuted general interrogation that never addressed the charges in the suspension letter, was not chaired by the appropriate organ, and was followed by a unilateral, predetermined decision dressed up, after the fact, in the language of due process.
The Non-Appearance of the County Executive Committee Member as a Witness
33. It is a matter of considerable significance to this court that the County Executive Committee Member for Water and Irrigation, whose unilateral intervention set in motion the entire chain of events culminating in the Claimant’s dismissal, requesting the annual reports, alleging insolvency on the strength of them, placing the Claimant on indefinite compulsory leave without lawful authority to do so, a decision this court was compelled to stay by its order of 15th February 2018, and presiding over the change of the office locks and bank signatories in defiance of that order, was neither called as a witness at the purported disciplinary hearing of 25th to 27th July 2018, nor availed to testify at any stage of these proceedings.
34. This omission is not incidental. It was the CECM’s original allegation of insolvency, founded on his own reading of reports the Claimant had himself prepared, that supplied the seed from which every subsequent step, the compulsory leave, the change of locks, the suspension, and ultimately the dismissal, grew. Yet the author of that seminal allegation was never subjected to cross-examination, never required to substantiate under oath the basis of his claim that the Respondent was insolvent, and never asked to explain by what authority, in the admitted absence of a substantive Board of Directors in office in February 2018, he purported to discipline a senior officer answerable, on the Respondent’s own Human Resource Policy Manual and letter of appointment, to the Board alone. RW1 himself, under cross-examination, was constrained to accept that disciplinary authority over senior staff lay with the Board of Directors and not with the CECM, a concession fatal to the legitimacy of the entire chain of events that the CECM’s letter set in train.
35. The evidentiary consequence of this is significant. Where an employer’s case for dismissal rests, even indirectly, on allegations or actions originating from an individual who is never called to give sworn evidence and submit to cross-examination, the court is entitled to draw an adverse inference against the party who bore the burden of proof and yet withheld that evidence, and to treat the underlying allegations as unproven. This principle applies with particular force in the sphere of employment and labour relations, where Article 47 of the Constitution guarantees every person the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair, and Article 50 guarantees the right to a fair hearing, a guarantee extending in principle to fora exercising disciplinary power over a person’s livelihood. A process built upon the unsworn, untested assertions of an absent official, whose very authority to act is itself in serious question, cannot be said to have accorded the Claimant either fair administrative action or a fair hearing. The failure to call the CECM, whether before the internal disciplinary process or before this court, materially undermines the reliability of the reasons advanced for the Claimant’s dismissal and weighs heavily in this court’s finding that the dismissal was both substantively and procedurally unfair.
The Denial of Access to the Claimant’s Office Despite a Subsisting Court Order
36. This court considers it necessary to comment at some length on the conduct of denying the Claimant access to his own office upon his return to work in compliance with the order of Rika, J. issued on 15th February 2018.
37. That order was unambiguous: it stayed the CECM’s letter of compulsory leave and directed that the Claimant be reinstated to his position and permitted to discharge his duties without interference. Rather than that order being honoured, the locks to the Claimant’s office were changed, such that upon presenting himself for duty on 25th February 2018, a senior manager restored to his post by order of this court was reduced to waiting outside his own office for a subordinate, the Personal Assistant to the very CECM whose letter had just been stayed, to come and let him in. Contemporaneously, the bank signatory mandates were altered to exclude the Claimant and the Managing Director, again without Board authority, and a request for their reinstatement as signatories was met with no more than a promise of “further advice in due course” that never came.
38. This conduct cannot be treated as a peripheral or merely embarrassing detail. An order of this court, once issued, does not remain suspended pending the convenience or agreement of the party against whom it operates; it is to be obeyed, in full and without qualification, until set aside or varied by a competent court. To change the locks on an employee’s office and strip him of his financial authority in the immediate aftermath of, and in direct defiance of, an order restoring him to his position is to treat that order with the very interference it expressly prohibited. It signals, in the clearest terms available short of an outright refusal to comply, that the Respondent had no genuine intention of honouring the order, and that the Claimant’s restoration to duty was to be nominal only.
39. More fundamentally, this conduct speaks directly to the question of fair labour practices guaranteed under Article 41 of the Constitution and to the right to fair administrative action under Article 47. Fair labour practice does not begin and end with the mechanics of a disciplinary hearing; it encompasses the entire relationship between employer and employee, including the manner in which an employer treats an employee who has successfully invoked the protection of the courts. An employer that responds to a court order compelling an employee’s reinstatement by physically excluding him from the tools of his office, humiliating him before his own subordinates, and stripping him of his financial signatory authority, is not merely disregarding a procedural nicety; it is engaging in precisely the kind of high-handed, retaliatory and administratively unfair conduct that Articles 41 and 47 of the Constitution were designed to guard against. It is, moreover, cogent evidence, standing quite apart from the question of the suspension letters or the disciplinary hearing discussed above, that the process which culminated in the Claimant’s dismissal some six months later was neither impartial nor undertaken in good faith, but was the continuation, by other and more elaborate means, of the very course of conduct that had already been found sufficiently wanting to warrant urgent interim relief in February 2018. This court associates itself, in this respect, with the observations of this same court in the companion matter of Salimo v Tavevo Water & Sewerage Co. Limited (Cause 70 of 2019) [2026] KEELRC 490 (KLR), concerning the Managing Director who suffered an identical fate, where it was similarly found that the alteration of office locks and bank signatories in defiance of the very order staying the compulsory leave contravened the interim orders of this court.
Substantive Fairness of the Dismissal
40. Section 45(2) of the Employment Act, 2007 renders a termination of employment unfair unless the employer proves that the reason for the termination was valid, that it was a fair reason related to the employee’s conduct, capacity or compatibility, or the employer’s operational requirements, and that the employee was terminated in accordance with fair procedure. Section 43(1) places the burden of proving the reason for termination squarely on the employer, and Section 47(5) confirms that while an employee bears the burden of proving that an unfair termination occurred, the burden of justifying the grounds of termination rests on the employer.
41. Applying these provisions, and adopting the guidance of this court in George Musamali v G4S Security Services Kenya Ltd [2016] eKLR, that termination of employment takes two stages, first there must be a valid and justifiable reason for termination, and once that is established, the termination must be carried out in accordance with the procedure laid down, this court has already found, for the detailed reasons set out above, that the procedural limb was not satisfied. As to substance, the position is scarcely better for the Respondent.
42. The grounds ultimately relied upon in the letter of dismissal, negligence of duty, an irregular employment contract, non-adherence to procurement regulations, unprocedural recruitment, failure to advise the Board, conflict of interest, and illegal procurement, were, save in the broadest and most conclusory terms, never particularised with the specificity the law requires. What precisely did the Claimant fail to do? Which procurement transaction was irregular, and in what respect? Which staff member was unprocedurally recruited, and by what process ought they to have been engaged instead? The Respondent’s own submissions, for all their length, answer these questions only by reference back to the same generalised allegations contained in the impugned suspension letters and the doubtful audit reports already discussed. This court is guided by the Court of Appeal’s finding in Ol Pejeta Ranching Limited v David Wanjau Muhoro [2017] eKLR, that allegations against an employee couched in general terms, unaccompanied by particulars capable of being met, cannot sustain a finding of fair termination.
43. Furthermore, the two audit reports on which the Respondent placed principal reliance, the Auditor-General’s report signed on 5th July 2018
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