REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI
ELRC CAUSE NO. E381 OF 2025
EUNICE WANGARI MUREITHI................................................CLAIMANT
VERSUS
CCI KENYA LIMITED............................................................RESPONDENT
JUDGMENT
1. It is not in dispute that the Claimant was employed by the Respondent in the position of Organizational Development Manager pursuant to a letter of offer dated 6 th June 2022.
2. The Claimant states that she diligently discharged her duties and responsibilities to the satisfaction of the Respondent. She contends that her performance was demonstrated by the fact that she was retained following a redundancy exercise and was subsequently recalled to resume employment after tendering her resignation in August 2023.
3. According to the Claimant, upon her return she reported to the newly appointed Head of Talent & Culture. She avers that they initially enjoyed a cordial working relationship for approximately two (2) months, during which she assisted him in settling into the organisation and familiarising himself with its operations.
4. The Claimant, however, asserts that the relationship later deteriorated when the Head of Talent & Culture became excessively controlling and denied her the autonomy necessary to perform her duties.
5. The Claimant further avers that, in an effort to establish professional boundaries, she raised her concerns with the Chief People Officer. In response, the Chief People Officer summoned the Head of Talent & Culture and advised the Claimant that she was neither required to share an office with him nor be at his beck and call.
6. According to the Claimant, the Head of Talent & Culture did not receive the reprimand well and thereafter adopted a condescending attitude towards her, particularly after he learnt about her remuneration.
7. The Claimant states that matters worsened after the Chief People Officer proceeded on leave. She avers that during this time, she was issued with a Notice to Show Cause, invited to attend a disciplinary hearing, and ultimately served with a letter terminating her employment. Although she lodged an appeal against the decision, the Respondent upheld the termination.
8. For the foregoing reasons, the Claimant contends that the termination of her employment was unfair and inhumane and consequently seeks the following reliefs against the Respondent:
a. A declaration that the Claimant’s termination from the Respondent’s employment was unprocedural, unfair and unlawful and unconstitutional;
b. Compensation for unfair termination of Kshs 6,000,000.00.
c. Unpaid house allowance of Kshs 2,160,000.00.
d. Exemplary and malicious damages for the unfair disciplinary process.
e. Punitive and aggravated damages;
f. Damages for constitutional violations.
g. Interest on (b), (c), (d), (e) and (f) above from the date of termination to the date of payment in full.
h. Costs of the suit.
i. Any other relief that the court may deem appropriate to grant.
9. The Respondent opposed the Claim through its Memorandum of Response dated 11 th August 2025, denying the Claimant's allegations. In particular, it contends that the alleged negative treatment by the Head of Talent & Culture was never brought to the attention of the Chief People Officer.
10. The Respondent further avers that the Notice to Show Cause was issued following concerns regarding the Claimant's poor work performance as observed by her immediate supervisor, the Head of Talent & Culture. It maintains that the disciplinary process culminating in the Claimant's termination complied with both the substantive and procedural requirements of fairness. Accordingly, the Respondent has urged the Court to dismiss the Claim with costs.
11. The matter proceeded for hearing on 21 st January 2026, during which both parties tendered oral evidence in support of their respective cases.
Claimant’s Case
12. The Claimant testified in support of her case and for starters, she adopted her witness statement to constitute her evidence in chief. She further produced the documents filed alongside her Memorandum of Claim as exhibits before the Court.
13. The Claimant testified that the Head of Talent & Culture made several disparaging remarks to her, including that he could employ four (4) people using her salary, that he could dismiss her and justify the decision by citing the Constitution, that she possessed very basic Microsoft Excel skills for her role, and that he had never encountered incompetent people until joining the Respondent. She further stated that the said line manager had promised to give her a gift on her work anniversary, which "gift" turned out to be her letter of termination.
14. The Claimant maintained that her job description did not require advanced proficiency in Microsoft Excel. She further testified that she was issued with a Notice to Show Cause dated 3 rd July 2024 directing her to respond by 12.00 p.m. on 2 nd July 2024, a deadline which had already lapsed and which she described as impossible to comply with.
15. She stated that notwithstanding the erroneous deadline, she responded to the allegations by an email dated 4 th July 2024. In her response, she explained the projects she had undertaken, outlined her role in each, and clarified that some of the responsibilities referred to in the notice fell within the mandate of other members of staff.
16. The Claimant further testified that she received an invitation to attend a disciplinary hearing at 10.39 p.m. on 5 th July 2024, requiring her to appear on Monday, 8 th July 2024 at 2.00 p.m. She contended that the invitation was sent to her official work email, which she could not access outside working hours, thereby denying her adequate time to prepare her defence.
17. She further stated that she was invited to the verdict session, which was less than the 24-hour notice prescribed under the Respondent's Human Resource Policy Manual. According to the verdict, her employment had been terminated on the grounds of failing to obey lawful commands and neglecting to perform her duties carefully and properly, contrary to Section 44(4)(c) and (e) of the Employment Act.
18. It was the Claimant's case that the disciplinary process was tainted by bias and that the outcome had been predetermined. She contended that the allegations against her were unsupported by documentary evidence and that the Respondent failed to give due consideration to her response.
19. The Claimant maintained that she had consistently been a high-performing employee and asserted that the allegation of failing to obey lawful instructions was unfounded.
20. She further testified that the disciplinary panel failed to consider evidence that would have exonerated her, including the scope of her responsibilities in relation to the tasks she was alleged to have neglected.
21. The Claimant further contended that the Respondent ignored the real issue, which was the malicious conduct of the Head of Talent & Culture, who had openly declared his intention to ensure her termination from employment. She added that the Respondent failed to take into account the complaints she had previously lodged against him.
22. The Claimant further asserted that the Respondent failed to adhere to its own Human Capital Policy Manual and conducted the disciplinary process in a hurried manner that was prejudicial to her.
23. She maintained that prior to the disciplinary proceedings, she had never been informed that her performance was wanting, nor had she been issued with any warning letter, placed on a performance improvement plan, or subjected to performance reviews highlighting any shortcomings.
24. The Claimant further testified that she was never furnished with any particulars or evidence of the alleged persistent insubordination or wilful refusal to comply with the instructions of the Head of Talent & Culture.
25. The Claimant further contended that the Notice to Show Cause did not indicate that she was being accused of the offences of disobeying lawful commands or neglecting her duties. In her view, the allegations levelled against her were incomprehensible and inconsistent.
Respondent’s Case
26. The Respondent called one witness, Patrick Handah , who testified as RW1. Mr. Handah introduced himself as the Respondent's Senior Manager, Employee Relations. Equally, RW1 adopted his witness statement to constitute his evidence in chief and produced the Respondent's list and bundle of documents as exhibits before the Court.
27. RW1 testified that the Claimant's immediate supervisor, the Head of Talent & Culture, raised concerns regarding her work performance, citing significant execution gaps that allegedly disrupted the Respondent's operations.
28. He stated that the Claimant had been instructed by her supervisor to complete performance data but failed to do so despite receiving guidance on how to process the information.
29. RW1 further testified that on 21 st June 2024, the Claimant failed to share with her supervisor certain links required to pilot her process and subsequently failed to respond to an email dated 25 th June 2024 seeking an update on the same.
30. He further stated that the Claimant did not respond when requested to provide an update on the preparation of documents required for the behavioural assessment report assigned to her.
31. RW1 also testified that the Claimant failed to review the performance data relating to Team Leaders, Operations Managers and Senior Operations Managers. According to him, despite receiving guidance on the task requirements, she only submitted incomplete data.
32. He averred that, as a result of these shortcomings in the Claimant's performance, the Respondent issued her with a Notice to Show Cause dated 3 rd July 2024. The notice required her to respond to allegations of misconduct, namely failure to obey lawful instructions within the scope of her duties and neglect to perform her work carefully. In his view, the date (2 nd July 2024) by which the Claimant was required to issue a response was erroneous.
33. RW1 stated that the Claimant responded to the Notice to Show Cause by email dated 4 th July 2024, following which her supervisor submitted feedback on her work performance. He added that the Claimant did not tender any objections regarding the date of 2 nd July 2024.
34. He further testified that, by an email dated 5 th July 2024, the Claimant was invited to attend a disciplinary hearing scheduled for 8 th July 2024. According to RW1, the invitation set out the particulars of the hearing and informed the Claimant of her right to be accompanied by a witness of her choice.
35. RW1 maintained that the Claimant neither objected to the notice convening the disciplinary hearing nor sought additional time to prepare her defence.
36. He further testified that the disciplinary hearing proceeded as scheduled in the presence of the Claimant, her supervisors, himself and three (3) other employees. He added that the Claimant indicated that her witness was available on call.
37. RW1 stated that the minutes of the disciplinary hearing were forwarded to the Claimant on 10 th July 2024 for her review. Thereafter, on 11 th July 2024, she was issued with a letter terminating her employment, which set out the reasons for the termination, her terminal dues and her right of appeal.
38. He further testified that the Claimant lodged an appeal, which was considered by the disciplinary committee. The committee ultimately upheld the decision to terminate her employment.
39. It was RW1's evidence that the disciplinary process was conducted fairly and in compliance with the Employment Act. He maintained that the disciplinary committee considered both the Claimant's representations and those of her supervisor. He further asserted that there were material inconsistencies between the explanations the Claimant gave in response to the Notice to Show Cause and those she offered during the disciplinary hearing.
40. RW1 further testified that the Respondent computed and paid the Claimant's terminal dues in accordance with the provisions of the Employment Act.
Submissions
41. It was submitted on behalf of the Claimant that the Respondent ought to have conducted investigations in line with Clause 10.8 of its Human Capital Policy to establish if she had failed to perform her work to the required standard or had failed to follow a command.
42. The Claimant posited that the investigations would have assisted the Respondent to determine whether or not the offences laid out against her warranted termination of her employment as provided for in the Respondent’s Human Capital Policy Manual.
43. The Claimant stated in further submission that the failure to involve the Chief People Officer in the disciplinary process was an indication of malice.
44. Referencing the case of Muigai v Kuku Foods Kenya Limited (Employment and Labour Relations Cause 777 of 2019) [2025] KEELRC 1354 (KLR) (8 May 2025) (Judgment), the Claimant submitted that the Respondent should have demonstrated that her offences fit the category of dismissal.
45. It was further submitted that the allegations laid out against the Claimant were premature in that the Head of Talent & Culture wrote an email dated 8 th July 2024, a few minutes before the disciplinary hearing, raising concerns that were not mentioned to the Claimant before the disciplinary hearing.
46. The Claimant further posited that the Respondent’s claims were not proven in light of her evidence appearing in the appeal letter and the response to the Notice to Show Cause.
47. It was further submitted that the generalized allegations that the Claimant had negligently performed her work did not satisfy the required threshold. In the Claimant’s view, the allegations largely fell under the category of poor performance which was avoided by the Respondent so as not to create an obligation to place her under the performance improvement process provided in its Human Capital Policy Manual.
48. Placing reliance on the cases of Kinyanjui v Rural Electrification & Renewable Corporation (Cause E709 of 2022) [2024] KEELRC 1824 (KLR) (12 July 2024) (Judgment) and Mithano v Standard Chartered Bank of Kenya Limited (Cause E018 of 2021) [2026] KEELRC 191 (KLR) (29 January 2026) (Judgment), the Claimant submitted that the Respondent should have accorded her reasonable time to prepare her response to the Show Cause and for the hearing as required in its manual.
49. It was the Claimant’s position that the rushed process demonstrated a process that was meant to terminate her employment with whatever means necessary.
50. In the same vein, the Claimant submitted that it was the Respondent’s duty to ensure reasonable time was granted and not to solely rely on her requests for more time.
51. It was further submitted that the Claimant was not provided with an opportunity for her witness, Esther Kamau, to present evidence in support of her case. According to the Claimant, this denial undermined the provisions of Section 41 of the Employment Act which entitled her to be accompanied by a witness of her own choice.
52. The Claimant further contended that she was denied an opportunity to cross–examine the Respondent’s witness, Daisy, and the Head of Talent & Culture. On this score, it was contended that the Senior Human Capital Business Partner took the role of examining Daisy on the Claimant’s behalf. Citing the case of Akanga v Capital Markets Authority (Cause 1187 of 2014) [2022] KEELRC 12773 (KLR) (6 October 2022) (Judgment), the Claimant submitted that the disciplinary panel was therefore not an impartial arbiter.
53. On the Respondent’s part, it was submitted that the Claimant’s consistent refusal to respond to the queries from her manager is tantamount to wilful neglect of duty and insubordination.
54. In this regard, the Respondent contended that multiple requests and instructions were issued to the Claimant through written communications, managerial guidance, and formal engagement processes to which she ignored and/or neglected to provide feedback or explanations.
55. It was further submitted that the Claimant was expressly instructed to complete performance data processing for Team Leaders, Operations Managers, and Senior Operations Managers. That despite being personally guided on the processing methodology and directed to seek assistance from her colleague, the Claimant submitted incomplete raw data lacking targets and weightage.
56. The Respondent further submitted that the Claimant’s omission to map the business enablement function was a clear failure to follow a command that was within her scope and duty to follow.
57. Referencing the cases of Walter Ogal vs Teachers Service Commission (2013), and Peter Wangai vs Egerton University (2019) eKLR, the Respondent urged the Court to observe, from the evidence adduced during the hearing and evidence adduced that the Claimant engaged in several acts and omissions in the course of her employment, particularly in her reporting to her manager, that constituted valid reasons for the termination of her employment.
58. With regards to procedural fairness, the Respondent submitted it satisfied the requirements under Sections 41 and 45 of the Employment Act.
Analysis and Determination
59. Upon considering the pleadings, the evidence on record and the parties' respective submissions, the Court finds that the following issues arise for determination:
i. Whether the Respondent has established a justifiable reason for terminating the Claimant's employment;
ii. Whether the Respondent complied with the procedural requirements of fairness in effecting the Claimant's termination; and
iii. Whether the Claimant is entitled to the reliefs sought.
Justifiable cause?
60. Under Sections 43 and 45(2)(a) and (b) of the Employment Act , the burden rests on an employer to prove that there existed a justifiable cause for terminating an employee's employment. This entails demonstrating the specific grounds upon which the decision to terminate the employment was founded. Further, the reasons relied upon must be valid, fair, and related to the employee's conduct, capacity or compatibility, or be based on the employer's operational requirements.
61. In the present case, the record bears that the Respondent terminated the Claimant's employment on the grounds that she had failed to follow a command which was within the scope of her duties and had neglected to perform her duties carefully.
62. In respect of the first ground for termination, the Respondent alleged that the Claimant failed to comply with lawful instructions issued by her manager. Specifically, it was alleged that despite receiving guidance and being directed to seek further assistance from her colleague, Daisy, the Claimant failed to complete the performance data for the Operations Department.
63. The Respondent further alleged that although the Claimant had been instructed to map the enablement function for the behavioural assessment process, she only commenced the task after receiving written reminders on 21 st June 2024 and again on 24 th June 2024 upon her manager's return to the office.
64. It was further alleged by the Respondent that, despite requests made during the week commencing 10 th June 2024, the Claimant failed to share with the Talent & Culture team the links required to pilot the behavioural assessment process. It was its case that, upon returning to the office on 24 th June 2024, the Claimant's manager again requested her to share the links, but she failed to do so. Consequently, he sent her an email on 25 th June 2024 seeking an explanation for her failure to comply, to which she did not respond. According to the Respondent, the Claimant eventually shared the documents on 1 st July 2024 after receiving a further verbal reminder.
65. The Respondent also accused the Claimant of informing the newly appointed Head of Operations that her manager had cancelled or rescheduled a session intended to brief the new employee on the existing performance and engagement data. It was alleged that when her manager sought an explanation regarding what he considered to be an inaccurate account of the events, the Claimant failed to respond.
66. A further allegation was that the Claimant failed to provide a status report on the completion rate of the behavioural assessment process as requested during the morning briefing of 24 th June 2024 before leaving work for the day, thereby necessitating her manager to prepare and circulate the report himself.
67. In essence, the first limb of the reasons advanced by the Respondent for terminating the Claimant's employment centered on allegations of insubordination arising from her failure to comply with lawful and reasonable instructions issued by her direct supervisor.
68. Insubordination constitutes a ground for summary dismissal under Section 44(4)(e) of the Employment Act, which provides as follows:
[44](4) Any of the following matters may amount to gross misconduct so as to justify the summary dismissal of an employee for lawful cause…..
(e)an employee knowingly fails, or refuses, to obey a lawful and proper command which it was within the scope of his duty to obey, issued by his employer or a person placed in authority over him by his employer;
69. In the Black's Law Dictionary (10 th Edition), insubordination is defined as:
“A willful disregard of an employer's instructions, esp. behavior that gives the employer cause to terminate a worker's employment. 2. An act of disobedience to proper authority; esp., a refusal to obey an order that a superior officer is authorized to give.”
70. The Claimant consistently denied the allegations levelled against her, both in her response to the Notice to Show Cause and in her appeal against the decision to terminate her employment.
71. In her response to the Notice to Show Cause, the Claimant explained that she had sought assistance from her colleague, Daisy , on two (2) occasions regarding the verification of the performance data. According to the Claimant, the formulas were not working and Daisy informed her that she was occupied with other assignments and advised her to seek assistance elsewhere.
72. The Claimant further stated that she and her line manager held several meetings, including one conducted outside the office, to review the formulas. She asserted that the formulas kept changing to the extent that her manager admitted that he was also confused.
73. In support of her appeal, the Claimant produced screenshots of WhatsApp messages exchanged with her line manager on 20 th June 2024. The messages show that the Claimant enquired whether he had reviewed the stack ranking data, to which he responded that he had not and requested 30 minutes. Shortly thereafter, the line manager asked whether the Claimant was available, and she responded affirmatively. The screenshots further indicate that following their meeting, the Claimant requested Daisy's contact details, which the line manager shared.
74. From the minutes of the disciplinary hearing, Daisy confirmed that she met with the Claimant, who informed her that she was still experiencing difficulties with the formulas. Daisy further stated that although the Claimant requested her to analyse the data on her behalf, she was unable to do so because she had other pending assignments.
75. The Claimant also relied on screenshots of WhatsApp messages showing that she had forwarded a document to her line manager for review. In a subsequent message dated 1 st July 2024, the line manager invited her to his office so that they could review the errors together.
76. The Claimant maintained that she and her line manager had been working together on the data through a shared file and that she had made every effort to complete the task. She explained that she had experienced delays in obtaining the requisite data from the “WFM” team because complete data was not readily available. According to the Claimant, the final dataset was received on 1 st July 2024, after which she updated it accordingly.
77. Regarding the meeting with the newly appointed Head of Operations, Maria, the Claimant stated that both of them were in agreement that the session had been rescheduled and that her line manager had been copied in the communication. In support of this assertion, she produced a screenshot of a message dated 3 rd July 2024 from Esther Kamau confirming that the meeting had been rescheduled due to another presentation and client visits, and that both she and Maria were aligned on the revised arrangement.
78. With regard to the allegation that she failed to share the links with the Talent & Culture team to pilot the behavioural assessment process, the Claimant explained in her response to the Notice to Show Cause that the instruction communicated to her on 21 st June 2024 through WhatsApp was unclear. She stated that she immediately sought clarification from her line manager, but he merely read the message without responding. That since 22 nd and 23 rd June 2024 fell on a weekend, she sought clarification in person on Monday, 24 th June 2024, following which she commenced the task and subsequently shared the requisite links with the Talent & Culture team.
79. In support of her position, the Claimant produced a screenshot of the WhatsApp exchange in which her line manager instructed her to “Also, please create the behaviour for the rest of team (sic).”
80. The screenshot further shows that the Claimant requested her line manager to expound the instruction, but he did not respond.
81. This lends credence to the Claimant's assertion that she sought clarification and that the instruction was only explained to her when they met with her line manager in person on 24 th June 2024. It is also notable that the Respondent did not adduce any evidence to demonstrate that the Claimant had been instructed to share the links prior to the WhatsApp message of 21 st June 2024.
82. The Claimant further disputed the allegation that she failed to share the behavioural assessment status report. She maintained that she forwarded the report to her line manager on 25 th June 2024. In support of this contention, she attached to her appeal a copy of an email dated 25 th June 2024 through which she transmitted the behavioural assessment report to her manager. This discounts the assertion made by her line manager in his email of 26 th June 2024 to Dickson Adeya that the report had not been shared.
83. Revisiting the definition of the term insubordination and applying it to the facts of this case, the Court is not persuaded that the Respondent has proved the allegation against the Claimant. I say so for the reason that insubordination entails more than mere poor performance or delays in the execution of assigned tasks. Rather, it entails a wilful, deliberate or intentional refusal by an employee to obey a lawful and proper instruction issued by a supervisor.
84. Although the evidence on record may suggest that the Claimant experienced challenges in completing some of her assigned tasks, it does not demonstrate that she deliberately disregarded or ignored her supervisor's instructions.
85. On the contrary, the evidence shows that she remained engaged with her line manager, sought clarification and assistance where necessary, met with both her manager and Daisy, as directed, attended meetings and forwarded documents to her manager for review. Such conduct is inconsistent with an employee who has deliberately chosen to defy managerial authority.
86. The Court further notes that the instruction issued to the Claimant by her line manager on 21 st June 2024 through WhatsApp was unclear and capable of more than one interpretation. As per the record, the Claimant immediately sought clarification, but her manager did not respond to her request. It was only after they met in person on 24 th June 2024 that the instruction was clarified, following which the Claimant proceeded to undertake the assigned task. To this end, it would be unjustified to characterise her conduct as deliberate disobedience when she had first sought clarification before acting.
87. The evidence on record further shows that the Claimant transmitted the behavioural assessment status report to her line manager on 25 th June 2024, contrary to the allegation that she had failed to do so. This evidence discounts the Respondent's assertion that the Claimant failed to share the status report and that it was her manager who ultimately did so himself.
88. Equally, the allegation that the Claimant misrepresented the rescheduling of the meeting with the newly appointed Head of Operations, Maria, does not, in the Court's view, amount to insubordination. In any event, the screenshot of the communication from Esther Kamau corroborates the Claimant's explanation that the meeting had been rescheduled by mutual agreement.
89. Viewed in its totality, the evidence on record does not establish that the Claimant wilfully and deliberately refused to comply with the lawful instructions/command of her supervisor. Rather, it points to communication gaps, delays in execution and differences regarding the manner in which the assigned tasks were undertaken. Consequently, the Court finds that the Respondent has failed to prove the allegation of insubordination on a balance of probabilities.
90. The second ground upon which the Respondent terminated the Claimant's employment was negligence of duty. Specifically, it was alleged that the Claimant submitted incomplete raw performance data that lacked the requisite targets and weightage
[...truncated]
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI
ELRC CAUSE NO. E381 OF 2025
EUNICE WANGARI MUREITHI................................................CLAIMANT
VERSUS
CCI KENYA LIMITED............................................................RESPONDENT
JUDGMENT
1. It is not in dispute that the Claimant was employed by the Respondent in the position of Organizational Development Manager pursuant to a letter of offer dated 6 th June 2022.
2. The Claimant states that she diligently discharged her duties and responsibilities to the satisfaction of the Respondent. She contends that her performance was demonstrated by the fact that she was retained following a redundancy exercise and was subsequently recalled to resume employment after tendering her resignation in August 2023.
3. According to the Claimant, upon her return she reported to the newly appointed Head of Talent & Culture. She avers that they initially enjoyed a cordial working relationship for approximately two (2) months, during which she assisted him in settling into the organisation and familiarising himself with its operations.
4. The Claimant, however, asserts that the relationship later deteriorated when the Head of Talent & Culture became excessively controlling and denied her the autonomy necessary to perform her duties.
5. The Claimant further avers that, in an effort to establish professional boundaries, she raised her concerns with the Chief People Officer. In response, the Chief People Officer summoned the Head of Talent & Culture and advised the Claimant that she was neither required to share an office with him nor be at his beck and call.
6. According to the Claimant, the Head of Talent & Culture did not receive the reprimand well and thereafter adopted a condescending attitude towards her, particularly after he learnt about her remuneration.
7. The Claimant states that matters worsened after the Chief People Officer proceeded on leave. She avers that during this time, she was issued with a Notice to Show Cause, invited to attend a disciplinary hearing, and ultimately served with a letter terminating her employment. Although she lodged an appeal against the decision, the Respondent upheld the termination.
8. For the foregoing reasons, the Claimant contends that the termination of her employment was unfair and inhumane and consequently seeks the following reliefs against the Respondent:
a. A declaration that the Claimant’s termination from the Respondent’s employment was unprocedural, unfair and unlawful and unconstitutional;
b. Compensation for unfair termination of Kshs 6,000,000.00.
c. Unpaid house allowance of Kshs 2,160,000.00.
d. Exemplary and malicious damages for the unfair disciplinary process.
e. Punitive and aggravated damages;
f. Damages for constitutional violations.
g. Interest on (b), (c), (d), (e) and (f) above from the date of termination to the date of payment in full.
h. Costs of the suit.
i. Any other relief that the court may deem appropriate to grant.
9. The Respondent opposed the Claim through its Memorandum of Response dated 11 th August 2025, denying the Claimant's allegations. In particular, it contends that the alleged negative treatment by the Head of Talent & Culture was never brought to the attention of the Chief People Officer.
10. The Respondent further avers that the Notice to Show Cause was issued following concerns regarding the Claimant's poor work performance as observed by her immediate supervisor, the Head of Talent & Culture. It maintains that the disciplinary process culminating in the Claimant's termination complied with both the substantive and procedural requirements of fairness. Accordingly, the Respondent has urged the Court to dismiss the Claim with costs.
11. The matter proceeded for hearing on 21 st January 2026, during which both parties tendered oral evidence in support of their respective cases.
Claimant’s Case
12. The Claimant testified in support of her case and for starters, she adopted her witness statement to constitute her evidence in chief. She further produced the documents filed alongside her Memorandum of Claim as exhibits before the Court.
13. The Claimant testified that the Head of Talent & Culture made several disparaging remarks to her, including that he could employ four (4) people using her salary, that he could dismiss her and justify the decision by citing the Constitution, that she possessed very basic Microsoft Excel skills for her role, and that he had never encountered incompetent people until joining the Respondent. She further stated that the said line manager had promised to give her a gift on her work anniversary, which "gift" turned out to be her letter of termination.
14. The Claimant maintained that her job description did not require advanced proficiency in Microsoft Excel. She further testified that she was issued with a Notice to Show Cause dated 3 rd July 2024 directing her to respond by 12.00 p.m. on 2 nd July 2024, a deadline which had already lapsed and which she described as impossible to comply with.
15. She stated that notwithstanding the erroneous deadline, she responded to the allegations by an email dated 4 th July 2024. In her response, she explained the projects she had undertaken, outlined her role in each, and clarified that some of the responsibilities referred to in the notice fell within the mandate of other members of staff.
16. The Claimant further testified that she received an invitation to attend a disciplinary hearing at 10.39 p.m. on 5 th July 2024, requiring her to appear on Monday, 8 th July 2024 at 2.00 p.m. She contended that the invitation was sent to her official work email, which she could not access outside working hours, thereby denying her adequate time to prepare her defence.
17. She further stated that she was invited to the verdict session, which was less than the 24-hour notice prescribed under the Respondent's Human Resource Policy Manual. According to the verdict, her employment had been terminated on the grounds of failing to obey lawful commands and neglecting to perform her duties carefully and properly, contrary to Section 44(4)(c) and (e) of the Employment Act.
18. It was the Claimant's case that the disciplinary process was tainted by bias and that the outcome had been predetermined. She contended that the allegations against her were unsupported by documentary evidence and that the Respondent failed to give due consideration to her response.
19. The Claimant maintained that she had consistently been a high-performing employee and asserted that the allegation of failing to obey lawful instructions was unfounded.
20. She further testified that the disciplinary panel failed to consider evidence that would have exonerated her, including the scope of her responsibilities in relation to the tasks she was alleged to have neglected.
21. The Claimant further contended that the Respondent ignored the real issue, which was the malicious conduct of the Head of Talent & Culture, who had openly declared his intention to ensure her termination from employment. She added that the Respondent failed to take into account the complaints she had previously lodged against him.
22. The Claimant further asserted that the Respondent failed to adhere to its own Human Capital Policy Manual and conducted the disciplinary process in a hurried manner that was prejudicial to her.
23. She maintained that prior to the disciplinary proceedings, she had never been informed that her performance was wanting, nor had she been issued with any warning letter, placed on a performance improvement plan, or subjected to performance reviews highlighting any shortcomings.
24. The Claimant further testified that she was never furnished with any particulars or evidence of the alleged persistent insubordination or wilful refusal to comply with the instructions of the Head of Talent & Culture.
25. The Claimant further contended that the Notice to Show Cause did not indicate that she was being accused of the offences of disobeying lawful commands or neglecting her duties. In her view, the allegations levelled against her were incomprehensible and inconsistent.
Respondent’s Case
26. The Respondent called one witness, Patrick Handah , who testified as RW1. Mr. Handah introduced himself as the Respondent's Senior Manager, Employee Relations. Equally, RW1 adopted his witness statement to constitute his evidence in chief and produced the Respondent's list and bundle of documents as exhibits before the Court.
27. RW1 testified that the Claimant's immediate supervisor, the Head of Talent & Culture, raised concerns regarding her work performance, citing significant execution gaps that allegedly disrupted the Respondent's operations.
28. He stated that the Claimant had been instructed by her supervisor to complete performance data but failed to do so despite receiving guidance on how to process the information.
29. RW1 further testified that on 21 st June 2024, the Claimant failed to share with her supervisor certain links required to pilot her process and subsequently failed to respond to an email dated 25 th June 2024 seeking an update on the same.
30. He further stated that the Claimant did not respond when requested to provide an update on the preparation of documents required for the behavioural assessment report assigned to her.
31. RW1 also testified that the Claimant failed to review the performance data relating to Team Leaders, Operations Managers and Senior Operations Managers. According to him, despite receiving guidance on the task requirements, she only submitted incomplete data.
32. He averred that, as a result of these shortcomings in the Claimant's performance, the Respondent issued her with a Notice to Show Cause dated 3 rd July 2024. The notice required her to respond to allegations of misconduct, namely failure to obey lawful instructions within the scope of her duties and neglect to perform her work carefully. In his view, the date (2 nd July 2024) by which the Claimant was required to issue a response was erroneous.
33. RW1 stated that the Claimant responded to the Notice to Show Cause by email dated 4 th July 2024, following which her supervisor submitted feedback on her work performance. He added that the Claimant did not tender any objections regarding the date of 2 nd July 2024.
34. He further testified that, by an email dated 5 th July 2024, the Claimant was invited to attend a disciplinary hearing scheduled for 8 th July 2024. According to RW1, the invitation set out the particulars of the hearing and informed the Claimant of her right to be accompanied by a witness of her choice.
35. RW1 maintained that the Claimant neither objected to the notice convening the disciplinary hearing nor sought additional time to prepare her defence.
36. He further testified that the disciplinary hearing proceeded as scheduled in the presence of the Claimant, her supervisors, himself and three (3) other employees. He added that the Claimant indicated that her witness was available on call.
37. RW1 stated that the minutes of the disciplinary hearing were forwarded to the Claimant on 10 th July 2024 for her review. Thereafter, on 11 th July 2024, she was issued with a letter terminating her employment, which set out the reasons for the termination, her terminal dues and her right of appeal.
38. He further testified that the Claimant lodged an appeal, which was considered by the disciplinary committee. The committee ultimately upheld the decision to terminate her employment.
39. It was RW1's evidence that the disciplinary process was conducted fairly and in compliance with the Employment Act. He maintained that the disciplinary committee considered both the Claimant's representations and those of her supervisor. He further asserted that there were material inconsistencies between the explanations the Claimant gave in response to the Notice to Show Cause and those she offered during the disciplinary hearing.
40. RW1 further testified that the Respondent computed and paid the Claimant's terminal dues in accordance with the provisions of the Employment Act.
Submissions
41. It was submitted on behalf of the Claimant that the Respondent ought to have conducted investigations in line with Clause 10.8 of its Human Capital Policy to establish if she had failed to perform her work to the required standard or had failed to follow a command.
42. The Claimant posited that the investigations would have assisted the Respondent to determine whether or not the offences laid out against her warranted termination of her employment as provided for in the Respondent’s Human Capital Policy Manual.
43. The Claimant stated in further submission that the failure to involve the Chief People Officer in the disciplinary process was an indication of malice.
44. Referencing the case of Muigai v Kuku Foods Kenya Limited (Employment and Labour Relations Cause 777 of 2019) [2025] KEELRC 1354 (KLR) (8 May 2025) (Judgment), the Claimant submitted that the Respondent should have demonstrated that her offences fit the category of dismissal.
45. It was further submitted that the allegations laid out against the Claimant were premature in that the Head of Talent & Culture wrote an email dated 8 th July 2024, a few minutes before the disciplinary hearing, raising concerns that were not mentioned to the Claimant before the disciplinary hearing.
46. The Claimant further posited that the Respondent’s claims were not proven in light of her evidence appearing in the appeal letter and the response to the Notice to Show Cause.
47. It was further submitted that the generalized allegations that the Claimant had negligently performed her work did not satisfy the required threshold. In the Claimant’s view, the allegations largely fell under the category of poor performance which was avoided by the Respondent so as not to create an obligation to place her under the performance improvement process provided in its Human Capital Policy Manual.
48. Placing reliance on the cases of Kinyanjui v Rural Electrification & Renewable Corporation (Cause E709 of 2022) [2024] KEELRC 1824 (KLR) (12 July 2024) (Judgment) and Mithano v Standard Chartered Bank of Kenya Limited (Cause E018 of 2021) [2026] KEELRC 191 (KLR) (29 January 2026) (Judgment), the Claimant submitted that the Respondent should have accorded her reasonable time to prepare her response to the Show Cause and for the hearing as required in its manual.
49. It was the Claimant’s position that the rushed process demonstrated a process that was meant to terminate her employment with whatever means necessary.
50. In the same vein, the Claimant submitted that it was the Respondent’s duty to ensure reasonable time was granted and not to solely rely on her requests for more time.
51. It was further submitted that the Claimant was not provided with an opportunity for her witness, Esther Kamau, to present evidence in support of her case. According to the Claimant, this denial undermined the provisions of Section 41 of the Employment Act which entitled her to be accompanied by a witness of her own choice.
52. The Claimant further contended that she was denied an opportunity to cross–examine the Respondent’s witness, Daisy, and the Head of Talent & Culture. On this score, it was contended that the Senior Human Capital Business Partner took the role of examining Daisy on the Claimant’s behalf. Citing the case of Akanga v Capital Markets Authority (Cause 1187 of 2014) [2022] KEELRC 12773 (KLR) (6 October 2022) (Judgment), the Claimant submitted that the disciplinary panel was therefore not an impartial arbiter.
53. On the Respondent’s part, it was submitted that the Claimant’s consistent refusal to respond to the queries from her manager is tantamount to wilful neglect of duty and insubordination.
54. In this regard, the Respondent contended that multiple requests and instructions were issued to the Claimant through written communications, managerial guidance, and formal engagement processes to which she ignored and/or neglected to provide feedback or explanations.
55. It was further submitted that the Claimant was expressly instructed to complete performance data processing for Team Leaders, Operations Managers, and Senior Operations Managers. That despite being personally guided on the processing methodology and directed to seek assistance from her colleague, the Claimant submitted incomplete raw data lacking targets and weightage.
56. The Respondent further submitted that the Claimant’s omission to map the business enablement function was a clear failure to follow a command that was within her scope and duty to follow.
57. Referencing the cases of Walter Ogal vs Teachers Service Commission (2013), and Peter Wangai vs Egerton University (2019) eKLR, the Respondent urged the Court to observe, from the evidence adduced during the hearing and evidence adduced that the Claimant engaged in several acts and omissions in the course of her employment, particularly in her reporting to her manager, that constituted valid reasons for the termination of her employment.
58. With regards to procedural fairness, the Respondent submitted it satisfied the requirements under Sections 41 and 45 of the Employment Act.
Analysis and Determination
59. Upon considering the pleadings, the evidence on record and the parties' respective submissions, the Court finds that the following issues arise for determination:
i. Whether the Respondent has established a justifiable reason for terminating the Claimant's employment;
ii. Whether the Respondent complied with the procedural requirements of fairness in effecting the Claimant's termination; and
iii. Whether the Claimant is entitled to the reliefs sought.
Justifiable cause?
60. Under Sections 43 and 45(2)(a) and (b) of the Employment Act , the burden rests on an employer to prove that there existed a justifiable cause for terminating an employee's employment. This entails demonstrating the specific grounds upon which the decision to terminate the employment was founded. Further, the reasons relied upon must be valid, fair, and related to the employee's conduct, capacity or compatibility, or be based on the employer's operational requirements.
61. In the present case, the record bears that the Respondent terminated the Claimant's employment on the grounds that she had failed to follow a command which was within the scope of her duties and had neglected to perform her duties carefully.
62. In respect of the first ground for termination, the Respondent alleged that the Claimant failed to comply with lawful instructions issued by her manager. Specifically, it was alleged that despite receiving guidance and being directed to seek further assistance from her colleague, Daisy, the Claimant failed to complete the performance data for the Operations Department.
63. The Respondent further alleged that although the Claimant had been instructed to map the enablement function for the behavioural assessment process, she only commenced the task after receiving written reminders on 21 st June 2024 and again on 24 th June 2024 upon her manager's return to the office.
64. It was further alleged by the Respondent that, despite requests made during the week commencing 10 th June 2024, the Claimant failed to share with the Talent & Culture team the links required to pilot the behavioural assessment process. It was its case that, upon returning to the office on 24 th June 2024, the Claimant's manager again requested her to share the links, but she failed to do so. Consequently, he sent her an email on 25 th June 2024 seeking an explanation for her failure to comply, to which she did not respond. According to the Respondent, the Claimant eventually shared the documents on 1 st July 2024 after receiving a further verbal reminder.
65. The Respondent also accused the Claimant of informing the newly appointed Head of Operations that her manager had cancelled or rescheduled a session intended to brief the new employee on the existing performance and engagement data. It was alleged that when her manager sought an explanation regarding what he considered to be an inaccurate account of the events, the Claimant failed to respond.
66. A further allegation was that the Claimant failed to provide a status report on the completion rate of the behavioural assessment process as requested during the morning briefing of 24 th June 2024 before leaving work for the day, thereby necessitating her manager to prepare and circulate the report himself.
67. In essence, the first limb of the reasons advanced by the Respondent for terminating the Claimant's employment centered on allegations of insubordination arising from her failure to comply with lawful and reasonable instructions issued by her direct supervisor.
68. Insubordination constitutes a ground for summary dismissal under Section 44(4)(e) of the Employment Act, which provides as follows:
[44](4) Any of the following matters may amount to gross misconduct so as to justify the summary dismissal of an employee for lawful cause…..
(e)an employee knowingly fails, or refuses, to obey a lawful and proper command which it was within the scope of his duty to obey, issued by his employer or a person placed in authority over him by his employer;
69. In the Black's Law Dictionary (10 th Edition), insubordination is defined as:
“A willful disregard of an employer's instructions, esp. behavior that gives the employer cause to terminate a worker's employment. 2. An act of disobedience to proper authority; esp., a refusal to obey an order that a superior officer is authorized to give.”
70. The Claimant consistently denied the allegations levelled against her, both in her response to the Notice to Show Cause and in her appeal against the decision to terminate her employment.
71. In her response to the Notice to Show Cause, the Claimant explained that she had sought assistance from her colleague, Daisy , on two (2) occasions regarding the verification of the performance data. According to the Claimant, the formulas were not working and Daisy informed her that she was occupied with other assignments and advised her to seek assistance elsewhere.
72. The Claimant further stated that she and her line manager held several meetings, including one conducted outside the office, to review the formulas. She asserted that the formulas kept changing to the extent that her manager admitted that he was also confused.
73. In support of her appeal, the Claimant produced screenshots of WhatsApp messages exchanged with her line manager on 20 th June 2024. The messages show that the Claimant enquired whether he had reviewed the stack ranking data, to which he responded that he had not and requested 30 minutes. Shortly thereafter, the line manager asked whether the Claimant was available, and she responded affirmatively. The screenshots further indicate that following their meeting, the Claimant requested Daisy's contact details, which the line manager shared.
74. From the minutes of the disciplinary hearing, Daisy confirmed that she met with the Claimant, who informed her that she was still experiencing difficulties with the formulas. Daisy further stated that although the Claimant requested her to analyse the data on her behalf, she was unable to do so because she had other pending assignments.
75. The Claimant also relied on screenshots of WhatsApp messages showing that she had forwarded a document to her line manager for review. In a subsequent message dated 1 st July 2024, the line manager invited her to his office so that they could review the errors together.
76. The Claimant maintained that she and her line manager had been working together on the data through a shared file and that she had made every effort to complete the task. She explained that she had experienced delays in obtaining the requisite data from the “WFM” team because complete data was not readily available. According to the Claimant, the final dataset was received on 1 st July 2024, after which she updated it accordingly.
77. Regarding the meeting with the newly appointed Head of Operations, Maria, the Claimant stated that both of them were in agreement that the session had been rescheduled and that her line manager had been copied in the communication. In support of this assertion, she produced a screenshot of a message dated 3 rd July 2024 from Esther Kamau confirming that the meeting had been rescheduled due to another presentation and client visits, and that both she and Maria were aligned on the revised arrangement.
78. With regard to the allegation that she failed to share the links with the Talent & Culture team to pilot the behavioural assessment process, the Claimant explained in her response to the Notice to Show Cause that the instruction communicated to her on 21 st June 2024 through WhatsApp was unclear. She stated that she immediately sought clarification from her line manager, but he merely read the message without responding. That since 22 nd and 23 rd June 2024 fell on a weekend, she sought clarification in person on Monday, 24 th June 2024, following which she commenced the task and subsequently shared the requisite links with the Talent & Culture team.
79. In support of her position, the Claimant produced a screenshot of the WhatsApp exchange in which her line manager instructed her to “Also, please create the behaviour for the rest of team (sic).”
80. The screenshot further shows that the Claimant requested her line manager to expound the instruction, but he did not respond.
81. This lends credence to the Claimant's assertion that she sought clarification and that the instruction was only explained to her when they met with her line manager in person on 24 th June 2024. It is also notable that the Respondent did not adduce any evidence to demonstrate that the Claimant had been instructed to share the links prior to the WhatsApp message of 21 st June 2024.
82. The Claimant further disputed the allegation that she failed to share the behavioural assessment status report. She maintained that she forwarded the report to her line manager on 25 th June 2024. In support of this contention, she attached to her appeal a copy of an email dated 25 th June 2024 through which she transmitted the behavioural assessment report to her manager. This discounts the assertion made by her line manager in his email of 26 th June 2024 to Dickson Adeya that the report had not been shared.
83. Revisiting the definition of the term insubordination and applying it to the facts of this case, the Court is not persuaded that the Respondent has proved the allegation against the Claimant. I say so for the reason that insubordination entails more than mere poor performance or delays in the execution of assigned tasks. Rather, it entails a wilful, deliberate or intentional refusal by an employee to obey a lawful and proper instruction issued by a supervisor.
84. Although the evidence on record may suggest that the Claimant experienced challenges in completing some of her assigned tasks, it does not demonstrate that she deliberately disregarded or ignored her supervisor's instructions.
85. On the contrary, the evidence shows that she remained engaged with her line manager, sought clarification and assistance where necessary, met with both her manager and Daisy, as directed, attended meetings and forwarded documents to her manager for review. Such conduct is inconsistent with an employee who has deliberately chosen to defy managerial authority.
86. The Court further notes that the instruction issued to the Claimant by her line manager on 21 st June 2024 through WhatsApp was unclear and capable of more than one interpretation. As per the record, the Claimant immediately sought clarification, but her manager did not respond to her request. It was only after they met in person on 24 th June 2024 that the instruction was clarified, following which the Claimant proceeded to undertake the assigned task. To this end, it would be unjustified to characterise her conduct as deliberate disobedience when she had first sought clarification before acting.
87. The evidence on record further shows that the Claimant transmitted the behavioural assessment status report to her line manager on 25 th June 2024, contrary to the allegation that she had failed to do so. This evidence discounts the Respondent's assertion that the Claimant failed to share the status report and that it was her manager who ultimately did so himself.
88. Equally, the allegation that the Claimant misrepresented the rescheduling of the meeting with the newly appointed Head of Operations, Maria, does not, in the Court's view, amount to insubordination. In any event, the screenshot of the communication from Esther Kamau corroborates the Claimant's explanation that the meeting had been rescheduled by mutual agreement.
89. Viewed in its totality, the evidence on record does not establish that the Claimant wilfully and deliberately refused to comply with the lawful instructions/command of her supervisor. Rather, it points to communication gaps, delays in execution and differences regarding the manner in which the assigned tasks were undertaken. Consequently, the Court finds that the Respondent has failed to prove the allegation of insubordination on a balance of probabilities.
90. The second ground upon which the Respondent terminated the Claimant's employment was negligence of duty. Specifically, it was alleged that the Claimant submitted incomplete raw performance data that lacked the requisite targets and weightage
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