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Introduction
1. By a Memorandum of Claim dated 6th September 2017, the Claimant, Gideon Ngenye Mutinda, sued the Respondent, Safaricom Limited, seeking;
(a) General damages
(b) A Declaration that the termination of his services was unfair, irregular, and unlawful, and an order that he be paid his dues and compensation in the sum of Kshs. 1,173,583.60
(c) An Order that the Claimant be reinstated to employment with immediate effect.
(d) Costs of this Claim and Interests thereon.
2. The Respondent, through a Statement of Response dated 15th February 2018, denied the allegations and asserted that the Claimant’s summary dismissal was fair, lawful, and justified.
3. At trial, the Claimant testified and called another witness [CW2] to support his case. The Respondent, meanwhile, called two witnesses who were both its employees at the time in question.
Claimant’s Case
4. The Claimant states that he was employed by the Respondent on 17th September 2013 as a Customer Experience Executive, earning a monthly salary of KShs. 73,483 at the time of termination.
5. He asserts that on 27th February 2017, his employment was summarily dismissed without lawful justification or a fair hearing, despite his diligent service for more than three and a half years.
6. The Claimant states that the summary dismissal was linked to an allegation that while serving at counter No. 006, at the Naivasha Safaricom Retail Shop on 13th January 2017, he carried out an unauthorised SIM swap, which purportedly caused a customer, holder of a Safaricom line number 0726927xxx, to lose KShs—420,000 from their Equity Bank account.
7. He asserts that he did not perform the alleged SIM swap. At 14:44 hours on the day in question, when the purported swap took place, he was at counter No. 007, temporarily covering for a colleague, Stephen Muigai Gathimba, who was on official duty. He maintains that he neither undertook nor authorised the transaction in question.
8. Upon learning of the allegations, he reported the matter to Naivasha Railways Police Station and notified his supervisor. He further provided a written response to the allegations to the Safaricom fraud investigation team.
9. The Claimant asserts that his dismissal was unfair, irregular, and unlawful. He was not informed of the intended disciplinary proceedings or the charges levied against him. Furthermore, he was not afforded a fair or adequate hearing prior to dismissal. Additionally, the CCTV footage purportedly used as evidence to substantiate the allegations against him was neither presented during the hearing nor made accessible to him, despite his request for the same. Moreover, the grounds for dismissal shifted from the initial accusations of SIM swap to reporting the incident to the police without proper authorisation.
10. The Claimant avers that he was not paid terminal dues, was not issued with a Certificate of Service, and his dismissal contravened the principles of natural justice and stipulations of the Employment Act, 2007.
11. The Claimant further claims that following his dismissal, he suffered financial and emotional distress, including loss of access to his medical cover, before being formally notified of the termination.
12. Cross-examined by Counsel for the Respondent, the Claimant testified that he was the person in charge of counter No. 6 until that time when he temporarily moved to counter No.007 to hold fort.
13. On 14th January 2017, a complaint was made regarding a swim swap. His credentials, which included a password, were used to carry out the transaction in question. It was the policy of the Respondent that employees should not share credentials with third parties. He did not share his credentials with anyone.
14. The transaction in question occurred at 2:44 pm. At that time, he was attending to counter number 7, having transferred there at 2:30 p.m. He testified that he did not possess a document reflecting the transactions for counter number 7 at that specific time, as he had verbally requested the document from the shop analyst, but none was provided to him.
15. Following the complaint, he was summoned to appear before one Mr Yego, who was investigating the matter. During the investigations, he was shown CCTV footage for 13th January 2017. It showed that at the material time, he was at counter number 6.
16. The report by the Respondents'' Ethics and Compliance Department found, among other things, that the transaction in question took place on 13th January 2017, and that his credentials were used to carry it out. It also indicates that CCTV footage showed him at counter number 6 at 2:45 p.m., serving a male customer.
17. He further testified that the sales report shows that he was at counter number 007 at the material time. He disagreed with Mr Yegon about the time shown on the CCTV footage, which indicated that he moved to counter number 007 at 3:00 p.m.
18. He further testified that he was not invited to any disciplinary hearing, nor was one conducted. He only attended a meeting with the Human Resources Manager. He was surprised to discover later that the meeting was considered a disciplinary hearing. On 24th January 2017, his Manager called to inform him that he was required to attend a meeting with the Human Resources Manager on 26th January 2017. Subsequently, on 25th January 2017, she called again and informed him that the meeting had been rescheduled for 31st January 2017.
19. The Respondent disconnected his email.
20. On 3rd March 2017, he visited AAR Denholm hospital for medical attention, only to be informed that his medical card had been deactivated.
21. The memo dated 26th January 2017, purportedly inviting him to a disciplinary hearing, was never served on him. He saw it for the first time when it was presented to the court as part of the bundle of documents filed by the Respondent.
22. On 31st January 2017, he attended a meeting at the Human Resources Manager’s office. He was unaware that the meeting was disciplinary. During the meeting, he was allowed to partially explain what happened on 13th January 2017. Additionally, he was shown the CCTV footage.
23. Upon receiving the dismissal letter, he did not attend the Respondent’s offices to collect his terminal dues, despite an invitation to do so.
24. In his evidence during re-examination, the Claimant stated that, from the Report by the Ethics and Compliance Department, it is not possible to identify the author. The report is unsigned. Apparently, it wasn''t signed because no one wanted to take responsibility for it.
25. From the onset, he disputed the CCTV footage that showed that he was at counter 007 at 15:00.
26. At the meeting, he was not shown the account into which the money was transferred.
27. There was nothing given to him to show that the meeting on 31st January 2017 was to be a disciplinary meeting.
28. His email was suspended immediately after the investigations commenced.
29. The Claimant’s witness, Stephen Gathimba [CW2], testified that he worked with the Claimant at the Respondent’s from March 2015 to January 2017. He stated that on the 13th January 2017, he was working at counter No.007 until 2:36 p.m. when he left the shop to attend to a customer in Nyandarua. He requested the Claimant to step in for him.
30. He stated that when he came back, the Claimant informed him that he had received a call from the Respondent’s Buruburu office and was told that a SIM swap had been performed from his counter and a customer had lost money.
31. The witness further stated that the Claimant provided him with the affected customer''s number, who was said to have lost money. After checking his Mpesa balance, he observed that no cash had been withdrawn from his Mpesa account, except for KShs—200, which the customer had used to buy airtime. He called the customer, who informed him that the money was stolen from his Equity Bank Account and not the M-Pesa account.
32. Cross examined by Counsel for the Respondent, the witness testified that he resigned from the Respondent’s employment in 2017. At the Respondent’s, he was working as a Customer Care Executive at their Naivasha Branch, assigned to counter No. 007. His role at that counter was to sell phones and other accessories.
33. On 13th January 2017, he asked the Claimant to step in for him at counter No. 7. After the Claimant agreed to his request, he left after making the last transaction at that counter at 14:34.
34. In his evidence in re-examination, the witness stated that he handed over the counter to the Claimant at 14:34.
35. He only came to know of the alleged SIM swap at counter six on the 14th January 2017.
Respondent’s Case
36. Mr Odhiambo Ooko, [RW1], the Respondent’s Senior Manager, Employee and Labour Relations, adopted his witness statement dated 14th December 2018, as his evidence in chief. He testified that by a letter dated 17th September 2013, the Respondent offered the Claimant employment as a Customer Experience Executive at a monthly salary of KShs. 50,000. The employment was effective from 1st October,2013.
37. The Respondent states that in January 2017, a customer complained to the Respondent’s Buruburu retail shop that his line had gone offline. The Respondent’s Ethics and Compliance department undertook investigations into the complaint. The investigations revealed that the customer’s line had been swapped on 13th January 2017 at around 2:45 p.m., using the Claimant’s credentials.
38. CCTV footage retrieved from the retail centre showed the Claimant performing a SIM swap and activating the line while serving a male customer at the said workstation.
39. The Claimant was invited via email on 16th January 2017 by Denis Yegon, of the Fraud Investigation, Risk Management team, to attend an interview with the team, concerning the unauthorised SIM swap of a customer’s line. On 17th January 2017, the Claimant presented himself for the interview. He initially claimed that at around 14:00 hrs, he was working in the sales area. However, when confronted with the CCTV footage, the Claimant changed his narrative, stating that he began working in the sales area at around 14:30 hrs and served the last SIM swap customer at 14:22 hrs before he moved to the sales area.
40. The investigation team also interviewed the customer. The customer presented his bank account details, which showed that KShs. 140,000.00 was transferred to MSISDN 0722792557, and withdrawn in Kisii at agent 605612-Teba Comm’s Caro Beauty Shop. Two hundred eighty thousand Kenyan Shillings had been transferred to an internal bank account on the date of the swap.
41. The investigation confirmed that the bank transactions resulting in the loss were triggered through internet banking, using a one-time password (OTP).
42. The investigations concluded that the Claimant performed an unauthorised SIM swap on a customer’s line, leading to the loss of KShs. 420,000.00, and recommended disciplinary action be taken against him.
43. The witness stated that on 26th January 2017, the Claimant was issued with a notification for a disciplinary hearing which was scheduled for 31st January 2017. He was informed that it was alleged that on 13th January 2017, he performed an unauthorised SIM swap on a customer’s line, leading to a loss of KShs. 420,000.
44. On 31st January 2017, a disciplinary hearing was held for the Claimant, where it was established that he had conducted an unauthorised SIM swap resulting in financial loss to a customer and breach of confidentiality.
45. Following the disciplinary hearing, the Employee Relations Manager of the Respondent recommended that the Claimant be summarily dismissed for breaching company policy and procedures designed to protect the customer’s information.
46. The witness claimed that the recommendation was based on the fact that during the hearing, the Claimant repeatedly insisted that he was not at his desk when the incident occurred. However, CCTV footage confirmed that he was at counter No. 6.
47. The witness further stated that the Claimant breached the Respondent’s Information Security Policy. He reported the matter to the police without the authority of his line manager.
48. Following the disciplinary process, the Respondent resolved to summarily dismiss the Claimant via a letter dated 27th February 2017, citing gross misconduct. The Claimant was informed of his right to appeal, which he exercised.
49. Upon review, the appeal was dismissed on 5th May 2017, with the Respondent maintaining that the process and outcome were fair and consistent.
50. Lastly, he asserted that the Claimant’s dismissal was fair, lawful, and procedurally compliant with the Employment Act, the Constitution, and the contract of employment. He prayed that the Claim be dismissed with costs.
51. Cross examined by Counsel for the Claimant, the witness stated that the dismissal of the Claimant from employment was on the ground that he performed an unauthorised SIM swap on a customer’s line. The Respondent has not presented the termination letter as evidence.
52. He testified that he did not meet the Claimant on 17th January 2017. Between 13th and 31st January 2017, investigations were being undertaken by Mr Yegon. The investigation''s report does not have the author''s name.
53. He testified that the Claimant was cut off the system on 26th January 2017, at the instructions of the investigator. Despite being cut off, he was still an employee of the Respondent.
54. The Claimant was not given any suspension letter.
55. The termination letter submitted by the Claimant as evidence outlined two reasons for the Claimant’s summary dismissal: the authorisation of the SIM swap and reporting the incident to the police without proper authority. However, a SIM swap is a criminal offence. The decision to report such an incident to law enforcement is solely up to the individual. The Claimant’s mistake was that he reported the matter to the police without first allowing internal processes to take their course.
56. Asked whether he knew the customer whose SIM and account were affected, the witness stated that he did not know and had no reason to.
57. The investigations confirmed with Equity Bank that the customer incurred the loss. However, the Respondent did not obtain a statement of account. Consequently, no document has been presented as evidence from which the alleged transaction can be discerned.
58. The CCTV was run during the disciplinary hearing. However, he could not confirm that the CCTV footage was not comprehensive.
59. Eric Mugo [RW2], the Respondent’s Manager, Senior Investigations, testified that Mr David Yego of the Ethics and Compliance team prepared the investigation report. At the time of preparing the report, Mr Yego, who has since left the Respondent, was reporting to him.
60. Cross examined by Counsel for the Claimant, the witness testified that during the investigation process, he did not interact with the Claimant. Instead, his colleague, Mr Yego, did. The report was prepared in January 2017, when he had not yet joined the Respondent. Looking at the report, it is not signed by the person who prepared it, nor does it have their name.
61. The identity of the person who was seen with the Claimant during the time of the swap was not established.
62. He stated that he was not aware whether or not the person who lost the money was compensated.
Claimant’s Submissions
63. The Claimant, the investigation officer, Mr Yego, inexplicably was not called to testify on behalf of the Respondent to counter his evidence that the CCTV was not comprehensive and unreliable, and that the investigation report, which was not signed, was fabricated. Additionally, his evidence that he was not at counter number 6 at the material time was not discounted.
64. He further testified that he was not shown the bank statement of the affected customer and was never charged with any offence. After being implicated, his official email account was disconnected, and he was later summoned to a meeting on 31st January 2017 by one Lilian, only to discover it was a disciplinary hearing.
65. He further submitted that the Respondent didn’t establish to the requisite standard that he was served with an invitation for a disciplinary hearing. The Respondent’s witness number one admitted that the Claimant was cut off from the Respondent’s system and his email was disabled. How then was he served?
66. The Claimant relied on Section 45(5)(a)-(e) of the Employment Act and argued that the Respondent failed to follow fair procedures, conduct a proper investigation, and handle the matter transparently. The Respondent did not involve the Directorate of Criminal Investigations, despite the Claimant reporting the issue to the police.
Respondent’s submissions
67. The Respondent identified three issues for determination: whether the summary dismissal was substantially fair; whether the summary dismissal was procedurally fair; and whether the Claimant is entitled to the reliefs sought.
68. It was submitted that under section 47[5] of the Employment Act, the burden of proving unfair termination lies with the employee. The burden is discharged once he establishes a prima facie case that the termination was not procedurally and substantively justified. To support this submission, reliance was placed on the case of Galgalo Jarso Jillo v Agricultural Finance Corporation [2021] eKLR.
69. The Claimant did not present substantiating evidence to support his claim of wrongful termination. As a result, he didn’t discharge the burden of proof under the above-stated section.
70. The employer, on the other hand, bears the legal burden to establish the validity of the dismissal in line with sections 41 and 44 of the Act. To support this point, reliance was placed on the case of Pius Machafu Isindu vs Lavington Security Guards Limited [2017] eKLR.
71. It was further submitted that Section 43 of the Employment Act places upon the employer the onus of proving the grounds for termination. Failure to discharge this burden renders the termination susceptible to being deemed unfair by dint of the provisions of section 45. Additionally, the employer is charged with the duty to prove that the reason was fair and valid.
72. Considering the evidence placed before this Court, on the genesis of the matter [ a customer’s SIM being swapped and a resultant loss of money from his account], the investigations that were conducted over the incident in question, that the Respondent’s Siebel system that retains records regarding the actual agent who performed various functions on the system could easily enable the Respondent identify who carried out a specific function at a particular time, that the system showed that the Claimant’s credentials were used to effect the transaction in question, and that the CCTV footage showed that the swap happened at his counter, is sufficient to point to the fact that the Respondent established that the reason for the dismissal was fair and valid.
73. It was further submitted that the Ethics and Compliance Report confirmed that the SIM swap originated from the Claimant’s workstation and that he failed to give a satisfactory explanation. His changing statements further undermined his defense.
74. In the circumstances of the matter, any reasonable employer would have arrived at the conclusion that it is likely that the Claimant conducted the unauthorised SIM swap, undertaken disciplinary action against him, and summarily dismissed him under section 44 of the Employment Act. As such, the summary dismissal was justified and lawful.
75. On whether the summary dismissal was procedurally fair, it was submitted that Section 41 of the Act provides for a procedure that must be adhered to by an employer contemplating terminating an employee’s employment, and that regarding the Claimant’s summary dismissal, the procedure was duly adhered to. The procedure contemplated under the provision has four elements; an explanation of the grounds of termination in a language understood by the employee; the reason for which the employer is considering termination; entitlement of an employee to the presence of another employee of his choice when the explanation on the grounds is made; and hearing and considering any representation made by the employee and the person chosen by the employee. To buttress this submission, reliance was placed on the cases of Postal Corporation of Kenya v K. Tanui [2019] eKLR and Anthony Mkala Chitavi v Malindi Water & Sewerage Co. Ltd [2013] eKLR.
76. After the incident, the Claimant was interrogated by the Fraud Investigation Team and allowed to write a report. He was notified of a disciplinary hearing via email dated 26th January 2017, which he received before his account was disabled at midnight. The hearing took place on 31st January 2017, and the Claimant attended and responded to the charges. The disciplinary committee considered his explanations before recommending summary dismissal on 13th February 2017.
77. On the reliefs sought, the Respondent argued that general damages cannot be availed to the Claimant, as such a remedy is not awardable for breach of contract. To fortify this point, they cited the decision in Erick Karanja Gakonyo & Another v Samson Gathimba (2011) eKLR, and Capital Fish Kenya Ltd v Kenya Power & Lighting Co. Ltd [2016] eKLR.
78. On reinstatement, the Respondent submitted that reinstatement was unavailable since over seven years had passed since dismissal, relying on Cliff Omanga Ontita v Teachers Service Commission [2015] eKLR, which held that reinstatement cannot be granted after three years.
79. The Respondent having demonstrated that the summary dismissal was lawful as it was substantively and procedurally fair, the compensatory relief contemplated by the Employment Act for unfair dismissal cannot be granted to the Claimant.
Analysis and determination
i. Whether the summary dismissal against the Claimant was substantively justifiable and procedurally fair.
ii. Whether the Claimant is entitled to the prayers sought.
Whether the summary dismissal was substantively justifiable and procedurally unfair.
80. It isn’t contested that the employer-employee relationship between the Respondent and the Claimant encountered headwinds on 13th January 2017, culminating in its fall on or about the 13th of February 2017, when the Claimant was summarily dismissed.
81. When called upon to assess whether a summary dismissal of an employee satisfies the fairness test, the Court is required to mandatorily consider the presence or absence of two statutory aspects: procedural fairness and substantive justification. According to section 45 of the Employment Act, these two elements define fairness in the context of employee dismissals.
82. Before I delve further into considering the presence or otherwise in the summary dismissal against the Claimant, it is important to point out that Section 47[5] of the Employment Act, which states;
“For any complaint of unfair termination of employment or wrongful dismissal the burden of proving that an unfair termination of employment or wrongful dismissal has occurred the burden of proving that an unfair termination of employment or wrongful dismissal has occurred shall rest on the employee, while the burden of justifying the grounds for termination of employment or wrongful dismissal shall rest on the employer.”
places legal burdens of different forms on both the employee and the employer, which are dischargeable at various stages but in a sequential order.
83. The employee bears the initial burden of establishing a prima facie case that the termination or summary dismissal lacked procedural and/or substantive fairness. Consequently, if this burden is not discharged, the employee’s claim fails at this preliminary stage. See also Galgalo Jarso v. Agricultural Finance Corporation [2021] eKLR [supra].
84. It is only after the employee has satisfied this initial legal responsibility that the evidential burden shifts to the employer to justify the termination or summary dismissal, as the case may be. Discharging this burden will involve the employer demonstrating that the termination or summary dismissal complied with the principles of procedural fairness as outlined under section 41 of the Employment Act, Articles 47 and 50 of the Constitution, and the provisions of the Fair Administrative Actions Act. Furthermore, the reason for the termination or summary dismissal was fair and valid. The termination or summary dismissal was conducted in accordance with principles of justice and equity.
85. Elaborating on the burden on the employer, the Court of Appeal in the case of Pius Machafu Isindu vs Lavington Security Guards Limited [2017] eKLR stated;
“There can be no doubt that the Act, which was enacted in 2007, places a heavy obligation on the employers in matters of summary dismissal for breach of employment contract and unfair termination involving breach of statutory law. The employer must prove the reasons for terminating [section 43]-prove that the reasons are valid and fair [section 45]; prove that the grounds are justified [section 47[5], amongst other provisions. A mandatory and elaborate process is then set up under section 41, requiring notification and hearing before termination. The Act provides for most procedures to be followed, thus obviating reliance on the Evidence Act and Civil procedure Rules…………….”
86. The Claimant asserted that he was not invited to a disciplinary hearing and was not accorded an opportunity to defend himself against the allegations that were levelled against him and that formed the basis of his summary dismissal from employment. The Respondent, on their part, asserted that via a Memo dated 26th January 2017, the Claimant was invited for a disciplinary hearing that was scheduled for 31st January 2017. On the Memo, the accusations against him and his right to accompaniment by a colleague were set out. He attended the hearing and was heard. As such, the edicts of procedural fairness were complied with.
87. This Court has duly considered the Claimant’s evidence that he attended the meeting on 31st January 2017 upon the request of his Manager, Lilian, to visit the Human Resource Manager’s office. He was not informed that the meeting was to constitute a disciplinary hearing, which would have enabled him to prepare his defence. The Respondent did not adequately challenge this pivotal evidence, or at all. Strangely, although it would be reasonable to expect, given the circumstances of this matter, that the Manager would be called to testify, the Respondent failed to do so. I can only infer in an adverse manner and conclude that had she been called, she would have provided unfavourable evidence to the Respondent concerning the invitation.
88. When an employee is to undergo a disciplinary hearing, the law mandates that such an employee must be notified in advance of the hearing date, as well as the grounds upon which the disciplinary process against them is based. Typically, the grounds are incorporated either in a specific disciplinary hearing invitation document or by having that document reference an earlier document, such as a show cause letter, where the same grounds could have been outlined.
89. It is for this reason that I must, at this point, determine the contested issue whether or not the alleged invitation memorandum was served on the Claimant. The Respondent contended that the memorandum was sent via email to the Claimant. The Claimant argued that such service wouldn’t have been possible, as his email had been deactivated on the very day. The Respondent, without any proof—which they could have easily provided as a Tech enterprise—if it were true, asserted that the deactivation occurred at midnight after the memorandum had been received.
90. Where service is denied, it behoves the person asserting the same to prove it. I have no hesitation in concluding that the Respondent didn’t prove service of the invitation memorandum on the Claimant. It is strange that despite the bold assertion regarding the service, they didn’t present the email under which the memorandum was sent as evidence before the Court. A clear indication that there was no service.
91. The Respondent took a position that there were disciplinary proceedings that took place on 31st January 2017. Surprisingly, no minutes of the same were placed before this Court to confirm this. The document dated 13th February 2017, titled “Disciplinary Recommendation for Gideon Ngenye Mutinda’’ cannot be held to be disciplinary proceedings as the Respondent labels them.
92. Interestingly, the document isn’t signed by the author or the other four senior officers who were supposed to approve the contents thereof.
93. Maybe the Respondent needs to take heed that it is not every meeting that should be labelled as a disciplinary hearing meeting, and even if there was such labelling, the Court will cut the same to ascertain whether indeed it took the character of a disciplinary hearing as contemplated by the law.
94. In the case of the Chief Registrar of the Judiciary and 2 Others vs LMN [2025] KESC 53[KLR], the Supreme Court emphasised the need for fairness in disciplinary processes, thus;
“We begin this judgment by declaring that the fairness of any disciplinary process is today a constitutional imperative, irrespective of the status of the officer involved. The process must uphold all the tenets of fair administrative action under Article 47 and the right to a fair hearing under Article 50 of the Constitution.
95. The long and short of the foregoing is that this Court is not persuaded that the Claimant was invited for a disciplinary hearing scheduled for 31st January 2017, and that such a disciplinary hearing took place.
96. I now examine whether the summary dismissal was substantively justified. As correctly argued by Counsel for the Respondent, summary dismissal refers to dismissing an employee without notice or with less notice than what they are entitled to by the employment contract or law. See also section 44[1] of the Employment Act.
97. Section 44[3] provides when the employer may dismiss an employee summarily, thus;
“Subject to the provisions of this Act, an employer may dismiss an employee summarily when the employee has, by his conduct, indicated that he has fundamentally breached his obligation arising under the contract of employment.’’
98. Section 44[4] delineates a catalogue of issues that may constitute gross misconduct sufficient to justify the summary dismissal of an employee for lawful cause. It is important to note that this list is not exhaustive. An employer may dismiss an employee for matters beyond those listed, provided that the conduct demonstrates an impact on the employer-employee relationship as outlined in subsection 3.
99. The origin of the Claimant’s troubles is clear. A SIM swap was carried out at his counter, resulting in the Respondent’s customer losing money from his account due to fraudulent activity linked to the swap. Bearing in mind the standard of proof that was expected of the Respondent in proving the reason for the summary dismissal and that the reason was fair and valid, a balance of probabilities, and not beyond a reasonable doubt, I am persuaded, for the reasons immediately hereinafter, that the Respondent had a reason, a valid and fair one to dismiss the Claimant summarily.
100. During his cross-examination, the Claimant acknowledged that the CCTV footage was reviewed in his presence during the investigation. It clearly indicated that the transaction was carried out at counter 6. His assertions regarding the authenticity of the footage, in my opinion, lack convincing merit.
101. He didn’t deny that his credentials were used to carry out the transaction in question. He didn’t explain how they were accessed for use if he was not the one who used them to perform the transaction.
102. In an employment relationship, the employee bears a duty to safeguard the interests of the employer. The employee is obliged not to engage in conduct likely to jeopardise the employer''s interests. The Claimant''s actions demonstrated a disregard for this obligation, constituting a fundamental breach of the contractual duty.
103. I have considered the industry in which the Respondent is involved and, without hesitation, conclude that incidents like the one in question could seriously negatively impact its reputation and finances if left unaddressed. In light of this, I see no other conclusion. The summary dismissal was justified. It was substantively fair.
Whether the Claimant is entitled to the prayers sought.
General damages
104. A claim for general damages must be established through sufficient evidence that would lay a basis for and attract the grant of the same. No doubt, the Claimant did not place forth such evidence. The relief is for the declining. It is hereby rejected.
One month''s pay in lieu of Notice, KShs. 73,483.00
105. Having found that the summary dismissal was substantively fair, I have no reason to award the Claimant notice pay.
12 months'' salary compensation for unfair termination
106. Section 49[1][c] of the Employment Act grants the Court the authority to award compensation to an employee who has successfully challenged their employer’s decision to summarily dismiss them or terminate their employment on the grounds that the dismissal or termination was wrongful or unfair. However, it is important to note that this authority is discretionary and exercised based on the specific circumstances of each case.
107. I have carefully considered the circumstances of this matter, including the Court''s conclusion that, on a balance of probabilities, the Respondent proved that the Claimant was involved in the SIM swap and that liability in this case arises solely from the Respondent''s failure to adhere to the principles of procedural fairness. I find that the Claimant deserves only one month’s salary as compensation for the unfair summary dismissal.
12 pending days for Annual Leave KShs. 29,393.00
108. The claim under this head was not challenged. In fact, the dismissal letter alludes to the Claimant’s entitlement to the same. It is hereby granted.
Contribution towards the Employees'' Pension Scheme KShs. 188,901.60
109. The Respondent did not challenge this relief sought. It was specifically pleaded. If the Respondent did not believe that it was entitled to, they would have read evidence to discount the entitlement. The relief is hereby granted.
An Order that the Claimant be reinstated to employment with immediate effect.
110. This Court is unable to grant the relief sought under this head for two reasons. Firstly, having established that the Claimant committed an act of gross misconduct, which justified his summary dismissal, it would be remiss of this Court to order his reinstatement. Secondly, pursuant to section 12 of the Employment and Labour Relations Court Act, the remedy of reinstatement is unavailable where three years have elapsed since the termination of the employee’s employment.
111. In the upshot, Judgment is hereby entered for the Claimant in the following terms;
I. A declaration that the summary dismissal against the Claimant was procedurally unfair.
II. Compensation for unfair summary dismissal, under section 49[1][c] of the Employment Act, one month’s gross salary KShs. 73,483.20
III. Compensation for earned but unutilised leave days, KShs. 29,393.00.
IV. Entitled contributions made towards the Employee Pension Scheme, KShs. 188, 901.60
V. Interest on the awarded sum from the date of this judgment till full payment.
VI. Costs of the suit.
Read, Signed and Delivered this 16th day of October 2025.
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Introduction
1. By a Memorandum of Claim dated 6th September 2017, the Claimant, Gideon Ngenye Mutinda, sued the Respondent, Safaricom Limited, seeking;
(a) General damages
(b) A Declaration that the termination of his services was unfair, irregular, and unlawful, and an order that he be paid his dues and compensation in the sum of Kshs. 1,173,583.60
(c) An Order that the Claimant be reinstated to employment with immediate effect.
(d) Costs of this Claim and Interests thereon.
2. The Respondent, through a Statement of Response dated 15th February 2018, denied the allegations and asserted that the Claimant’s summary dismissal was fair, lawful, and justified.
3. At trial, the Claimant testified and called another witness [CW2] to support his case. The Respondent, meanwhile, called two witnesses who were both its employees at the time in question.
Claimant’s Case
4. The Claimant states that he was employed by the Respondent on 17th September 2013 as a Customer Experience Executive, earning a monthly salary of KShs. 73,483 at the time of termination.
5. He asserts that on 27th February 2017, his employment was summarily dismissed without lawful justification or a fair hearing, despite his diligent service for more than three and a half years.
6. The Claimant states that the summary dismissal was linked to an allegation that while serving at counter No. 006, at the Naivasha Safaricom Retail Shop on 13th January 2017, he carried out an unauthorised SIM swap, which purportedly caused a customer, holder of a Safaricom line number 0726927xxx, to lose KShs—420,000 from their Equity Bank account.
7. He asserts that he did not perform the alleged SIM swap. At 14:44 hours on the day in question, when the purported swap took place, he was at counter No. 007, temporarily covering for a colleague, Stephen Muigai Gathimba, who was on official duty. He maintains that he neither undertook nor authorised the transaction in question.
8. Upon learning of the allegations, he reported the matter to Naivasha Railways Police Station and notified his supervisor. He further provided a written response to the allegations to the Safaricom fraud investigation team.
9. The Claimant asserts that his dismissal was unfair, irregular, and unlawful. He was not informed of the intended disciplinary proceedings or the charges levied against him. Furthermore, he was not afforded a fair or adequate hearing prior to dismissal. Additionally, the CCTV footage purportedly used as evidence to substantiate the allegations against him was neither presented during the hearing nor made accessible to him, despite his request for the same. Moreover, the grounds for dismissal shifted from the initial accusations of SIM swap to reporting the incident to the police without proper authorisation.
10. The Claimant avers that he was not paid terminal dues, was not issued with a Certificate of Service, and his dismissal contravened the principles of natural justice and stipulations of the Employment Act, 2007.
11. The Claimant further claims that following his dismissal, he suffered financial and emotional distress, including loss of access to his medical cover, before being formally notified of the termination.
12. Cross-examined by Counsel for the Respondent, the Claimant testified that he was the person in charge of counter No. 6 until that time when he temporarily moved to counter No.007 to hold fort.
13. On 14th January 2017, a complaint was made regarding a swim swap. His credentials, which included a password, were used to carry out the transaction in question. It was the policy of the Respondent that employees should not share credentials with third parties. He did not share his credentials with anyone.
14. The transaction in question occurred at 2:44 pm. At that time, he was attending to counter number 7, having transferred there at 2:30 p.m. He testified that he did not possess a document reflecting the transactions for counter number 7 at that specific time, as he had verbally requested the document from the shop analyst, but none was provided to him.
15. Following the complaint, he was summoned to appear before one Mr Yego, who was investigating the matter. During the investigations, he was shown CCTV footage for 13th January 2017. It showed that at the material time, he was at counter number 6.
16. The report by the Respondents'' Ethics and Compliance Department found, among other things, that the transaction in question took place on 13th January 2017, and that his credentials were used to carry it out. It also indicates that CCTV footage showed him at counter number 6 at 2:45 p.m., serving a male customer.
17. He further testified that the sales report shows that he was at counter number 007 at the material time. He disagreed with Mr Yegon about the time shown on the CCTV footage, which indicated that he moved to counter number 007 at 3:00 p.m.
18. He further testified that he was not invited to any disciplinary hearing, nor was one conducted. He only attended a meeting with the Human Resources Manager. He was surprised to discover later that the meeting was considered a disciplinary hearing. On 24th January 2017, his Manager called to inform him that he was required to attend a meeting with the Human Resources Manager on 26th January 2017. Subsequently, on 25th January 2017, she called again and informed him that the meeting had been rescheduled for 31st January 2017.
19. The Respondent disconnected his email.
20. On 3rd March 2017, he visited AAR Denholm hospital for medical attention, only to be informed that his medical card had been deactivated.
21. The memo dated 26th January 2017, purportedly inviting him to a disciplinary hearing, was never served on him. He saw it for the first time when it was presented to the court as part of the bundle of documents filed by the Respondent.
22. On 31st January 2017, he attended a meeting at the Human Resources Manager’s office. He was unaware that the meeting was disciplinary. During the meeting, he was allowed to partially explain what happened on 13th January 2017. Additionally, he was shown the CCTV footage.
23. Upon receiving the dismissal letter, he did not attend the Respondent’s offices to collect his terminal dues, despite an invitation to do so.
24. In his evidence during re-examination, the Claimant stated that, from the Report by the Ethics and Compliance Department, it is not possible to identify the author. The report is unsigned. Apparently, it wasn''t signed because no one wanted to take responsibility for it.
25. From the onset, he disputed the CCTV footage that showed that he was at counter 007 at 15:00.
26. At the meeting, he was not shown the account into which the money was transferred.
27. There was nothing given to him to show that the meeting on 31st January 2017 was to be a disciplinary meeting.
28. His email was suspended immediately after the investigations commenced.
29. The Claimant’s witness, Stephen Gathimba [CW2], testified that he worked with the Claimant at the Respondent’s from March 2015 to January 2017. He stated that on the 13th January 2017, he was working at counter No.007 until 2:36 p.m. when he left the shop to attend to a customer in Nyandarua. He requested the Claimant to step in for him.
30. He stated that when he came back, the Claimant informed him that he had received a call from the Respondent’s Buruburu office and was told that a SIM swap had been performed from his counter and a customer had lost money.
31. The witness further stated that the Claimant provided him with the affected customer''s number, who was said to have lost money. After checking his Mpesa balance, he observed that no cash had been withdrawn from his Mpesa account, except for KShs—200, which the customer had used to buy airtime. He called the customer, who informed him that the money was stolen from his Equity Bank Account and not the M-Pesa account.
32. Cross examined by Counsel for the Respondent, the witness testified that he resigned from the Respondent’s employment in 2017. At the Respondent’s, he was working as a Customer Care Executive at their Naivasha Branch, assigned to counter No. 007. His role at that counter was to sell phones and other accessories.
33. On 13th January 2017, he asked the Claimant to step in for him at counter No. 7. After the Claimant agreed to his request, he left after making the last transaction at that counter at 14:34.
34. In his evidence in re-examination, the witness stated that he handed over the counter to the Claimant at 14:34.
35. He only came to know of the alleged SIM swap at counter six on the 14th January 2017.
Respondent’s Case
36. Mr Odhiambo Ooko, [RW1], the Respondent’s Senior Manager, Employee and Labour Relations, adopted his witness statement dated 14th December 2018, as his evidence in chief. He testified that by a letter dated 17th September 2013, the Respondent offered the Claimant employment as a Customer Experience Executive at a monthly salary of KShs. 50,000. The employment was effective from 1st October,2013.
37. The Respondent states that in January 2017, a customer complained to the Respondent’s Buruburu retail shop that his line had gone offline. The Respondent’s Ethics and Compliance department undertook investigations into the complaint. The investigations revealed that the customer’s line had been swapped on 13th January 2017 at around 2:45 p.m., using the Claimant’s credentials.
38. CCTV footage retrieved from the retail centre showed the Claimant performing a SIM swap and activating the line while serving a male customer at the said workstation.
39. The Claimant was invited via email on 16th January 2017 by Denis Yegon, of the Fraud Investigation, Risk Management team, to attend an interview with the team, concerning the unauthorised SIM swap of a customer’s line. On 17th January 2017, the Claimant presented himself for the interview. He initially claimed that at around 14:00 hrs, he was working in the sales area. However, when confronted with the CCTV footage, the Claimant changed his narrative, stating that he began working in the sales area at around 14:30 hrs and served the last SIM swap customer at 14:22 hrs before he moved to the sales area.
40. The investigation team also interviewed the customer. The customer presented his bank account details, which showed that KShs. 140,000.00 was transferred to MSISDN 0722792557, and withdrawn in Kisii at agent 605612-Teba Comm’s Caro Beauty Shop. Two hundred eighty thousand Kenyan Shillings had been transferred to an internal bank account on the date of the swap.
41. The investigation confirmed that the bank transactions resulting in the loss were triggered through internet banking, using a one-time password (OTP).
42. The investigations concluded that the Claimant performed an unauthorised SIM swap on a customer’s line, leading to the loss of KShs. 420,000.00, and recommended disciplinary action be taken against him.
43. The witness stated that on 26th January 2017, the Claimant was issued with a notification for a disciplinary hearing which was scheduled for 31st January 2017. He was informed that it was alleged that on 13th January 2017, he performed an unauthorised SIM swap on a customer’s line, leading to a loss of KShs. 420,000.
44. On 31st January 2017, a disciplinary hearing was held for the Claimant, where it was established that he had conducted an unauthorised SIM swap resulting in financial loss to a customer and breach of confidentiality.
45. Following the disciplinary hearing, the Employee Relations Manager of the Respondent recommended that the Claimant be summarily dismissed for breaching company policy and procedures designed to protect the customer’s information.
46. The witness claimed that the recommendation was based on the fact that during the hearing, the Claimant repeatedly insisted that he was not at his desk when the incident occurred. However, CCTV footage confirmed that he was at counter No. 6.
47. The witness further stated that the Claimant breached the Respondent’s Information Security Policy. He reported the matter to the police without the authority of his line manager.
48. Following the disciplinary process, the Respondent resolved to summarily dismiss the Claimant via a letter dated 27th February 2017, citing gross misconduct. The Claimant was informed of his right to appeal, which he exercised.
49. Upon review, the appeal was dismissed on 5th May 2017, with the Respondent maintaining that the process and outcome were fair and consistent.
50. Lastly, he asserted that the Claimant’s dismissal was fair, lawful, and procedurally compliant with the Employment Act, the Constitution, and the contract of employment. He prayed that the Claim be dismissed with costs.
51. Cross examined by Counsel for the Claimant, the witness stated that the dismissal of the Claimant from employment was on the ground that he performed an unauthorised SIM swap on a customer’s line. The Respondent has not presented the termination letter as evidence.
52. He testified that he did not meet the Claimant on 17th January 2017. Between 13th and 31st January 2017, investigations were being undertaken by Mr Yegon. The investigation''s report does not have the author''s name.
53. He testified that the Claimant was cut off the system on 26th January 2017, at the instructions of the investigator. Despite being cut off, he was still an employee of the Respondent.
54. The Claimant was not given any suspension letter.
55. The termination letter submitted by the Claimant as evidence outlined two reasons for the Claimant’s summary dismissal: the authorisation of the SIM swap and reporting the incident to the police without proper authority. However, a SIM swap is a criminal offence. The decision to report such an incident to law enforcement is solely up to the individual. The Claimant’s mistake was that he reported the matter to the police without first allowing internal processes to take their course.
56. Asked whether he knew the customer whose SIM and account were affected, the witness stated that he did not know and had no reason to.
57. The investigations confirmed with Equity Bank that the customer incurred the loss. However, the Respondent did not obtain a statement of account. Consequently, no document has been presented as evidence from which the alleged transaction can be discerned.
58. The CCTV was run during the disciplinary hearing. However, he could not confirm that the CCTV footage was not comprehensive.
59. Eric Mugo [RW2], the Respondent’s Manager, Senior Investigations, testified that Mr David Yego of the Ethics and Compliance team prepared the investigation report. At the time of preparing the report, Mr Yego, who has since left the Respondent, was reporting to him.
60. Cross examined by Counsel for the Claimant, the witness testified that during the investigation process, he did not interact with the Claimant. Instead, his colleague, Mr Yego, did. The report was prepared in January 2017, when he had not yet joined the Respondent. Looking at the report, it is not signed by the person who prepared it, nor does it have their name.
61. The identity of the person who was seen with the Claimant during the time of the swap was not established.
62. He stated that he was not aware whether or not the person who lost the money was compensated.
Claimant’s Submissions
63. The Claimant, the investigation officer, Mr Yego, inexplicably was not called to testify on behalf of the Respondent to counter his evidence that the CCTV was not comprehensive and unreliable, and that the investigation report, which was not signed, was fabricated. Additionally, his evidence that he was not at counter number 6 at the material time was not discounted.
64. He further testified that he was not shown the bank statement of the affected customer and was never charged with any offence. After being implicated, his official email account was disconnected, and he was later summoned to a meeting on 31st January 2017 by one Lilian, only to discover it was a disciplinary hearing.
65. He further submitted that the Respondent didn’t establish to the requisite standard that he was served with an invitation for a disciplinary hearing. The Respondent’s witness number one admitted that the Claimant was cut off from the Respondent’s system and his email was disabled. How then was he served?
66. The Claimant relied on Section 45(5)(a)-(e) of the Employment Act and argued that the Respondent failed to follow fair procedures, conduct a proper investigation, and handle the matter transparently. The Respondent did not involve the Directorate of Criminal Investigations, despite the Claimant reporting the issue to the police.
Respondent’s submissions
67. The Respondent identified three issues for determination: whether the summary dismissal was substantially fair; whether the summary dismissal was procedurally fair; and whether the Claimant is entitled to the reliefs sought.
68. It was submitted that under section 47[5] of the Employment Act, the burden of proving unfair termination lies with the employee. The burden is discharged once he establishes a prima facie case that the termination was not procedurally and substantively justified. To support this submission, reliance was placed on the case of Galgalo Jarso Jillo v Agricultural Finance Corporation [2021] eKLR.
69. The Claimant did not present substantiating evidence to support his claim of wrongful termination. As a result, he didn’t discharge the burden of proof under the above-stated section.
70. The employer, on the other hand, bears the legal burden to establish the validity of the dismissal in line with sections 41 and 44 of the Act. To support this point, reliance was placed on the case of Pius Machafu Isindu vs Lavington Security Guards Limited [2017] eKLR.
71. It was further submitted that Section 43 of the Employment Act places upon the employer the onus of proving the grounds for termination. Failure to discharge this burden renders the termination susceptible to being deemed unfair by dint of the provisions of section 45. Additionally, the employer is charged with the duty to prove that the reason was fair and valid.
72. Considering the evidence placed before this Court, on the genesis of the matter [ a customer’s SIM being swapped and a resultant loss of money from his account], the investigations that were conducted over the incident in question, that the Respondent’s Siebel system that retains records regarding the actual agent who performed various functions on the system could easily enable the Respondent identify who carried out a specific function at a particular time, that the system showed that the Claimant’s credentials were used to effect the transaction in question, and that the CCTV footage showed that the swap happened at his counter, is sufficient to point to the fact that the Respondent established that the reason for the dismissal was fair and valid.
73. It was further submitted that the Ethics and Compliance Report confirmed that the SIM swap originated from the Claimant’s workstation and that he failed to give a satisfactory explanation. His changing statements further undermined his defense.
74. In the circumstances of the matter, any reasonable employer would have arrived at the conclusion that it is likely that the Claimant conducted the unauthorised SIM swap, undertaken disciplinary action against him, and summarily dismissed him under section 44 of the Employment Act. As such, the summary dismissal was justified and lawful.
75. On whether the summary dismissal was procedurally fair, it was submitted that Section 41 of the Act provides for a procedure that must be adhered to by an employer contemplating terminating an employee’s employment, and that regarding the Claimant’s summary dismissal, the procedure was duly adhered to. The procedure contemplated under the provision has four elements; an explanation of the grounds of termination in a language understood by the employee; the reason for which the employer is considering termination; entitlement of an employee to the presence of another employee of his choice when the explanation on the grounds is made; and hearing and considering any representation made by the employee and the person chosen by the employee. To buttress this submission, reliance was placed on the cases of Postal Corporation of Kenya v K. Tanui [2019] eKLR and Anthony Mkala Chitavi v Malindi Water & Sewerage Co. Ltd [2013] eKLR.
76. After the incident, the Claimant was interrogated by the Fraud Investigation Team and allowed to write a report. He was notified of a disciplinary hearing via email dated 26th January 2017, which he received before his account was disabled at midnight. The hearing took place on 31st January 2017, and the Claimant attended and responded to the charges. The disciplinary committee considered his explanations before recommending summary dismissal on 13th February 2017.
77. On the reliefs sought, the Respondent argued that general damages cannot be availed to the Claimant, as such a remedy is not awardable for breach of contract. To fortify this point, they cited the decision in Erick Karanja Gakonyo & Another v Samson Gathimba (2011) eKLR, and Capital Fish Kenya Ltd v Kenya Power & Lighting Co. Ltd [2016] eKLR.
78. On reinstatement, the Respondent submitted that reinstatement was unavailable since over seven years had passed since dismissal, relying on Cliff Omanga Ontita v Teachers Service Commission [2015] eKLR, which held that reinstatement cannot be granted after three years.
79. The Respondent having demonstrated that the summary dismissal was lawful as it was substantively and procedurally fair, the compensatory relief contemplated by the Employment Act for unfair dismissal cannot be granted to the Claimant.
Analysis and determination
i. Whether the summary dismissal against the Claimant was substantively justifiable and procedurally fair.
ii. Whether the Claimant is entitled to the prayers sought.
Whether the summary dismissal was substantively justifiable and procedurally unfair.
80. It isn’t contested that the employer-employee relationship between the Respondent and the Claimant encountered headwinds on 13th January 2017, culminating in its fall on or about the 13th of February 2017, when the Claimant was summarily dismissed.
81. When called upon to assess whether a summary dismissal of an employee satisfies the fairness test, the Court is required to mandatorily consider the presence or absence of two statutory aspects: procedural fairness and substantive justification. According to section 45 of the Employment Act, these two elements define fairness in the context of employee dismissals.
82. Before I delve further into considering the presence or otherwise in the summary dismissal against the Claimant, it is important to point out that Section 47[5] of the Employment Act, which states;
“For any complaint of unfair termination of employment or wrongful dismissal the burden of proving that an unfair termination of employment or wrongful dismissal has occurred the burden of proving that an unfair termination of employment or wrongful dismissal has occurred shall rest on the employee, while the burden of justifying the grounds for termination of employment or wrongful dismissal shall rest on the employer.”
places legal burdens of different forms on both the employee and the employer, which are dischargeable at various stages but in a sequential order.
83. The employee bears the initial burden of establishing a prima facie case that the termination or summary dismissal lacked procedural and/or substantive fairness. Consequently, if this burden is not discharged, the employee’s claim fails at this preliminary stage. See also Galgalo Jarso v. Agricultural Finance Corporation [2021] eKLR [supra].
84. It is only after the employee has satisfied this initial legal responsibility that the evidential burden shifts to the employer to justify the termination or summary dismissal, as the case may be. Discharging this burden will involve the employer demonstrating that the termination or summary dismissal complied with the principles of procedural fairness as outlined under section 41 of the Employment Act, Articles 47 and 50 of the Constitution, and the provisions of the Fair Administrative Actions Act. Furthermore, the reason for the termination or summary dismissal was fair and valid. The termination or summary dismissal was conducted in accordance with principles of justice and equity.
85. Elaborating on the burden on the employer, the Court of Appeal in the case of Pius Machafu Isindu vs Lavington Security Guards Limited [2017] eKLR stated;
“There can be no doubt that the Act, which was enacted in 2007, places a heavy obligation on the employers in matters of summary dismissal for breach of employment contract and unfair termination involving breach of statutory law. The employer must prove the reasons for terminating [section 43]-prove that the reasons are valid and fair [section 45]; prove that the grounds are justified [section 47[5], amongst other provisions. A mandatory and elaborate process is then set up under section 41, requiring notification and hearing before termination. The Act provides for most procedures to be followed, thus obviating reliance on the Evidence Act and Civil procedure Rules…………….”
86. The Claimant asserted that he was not invited to a disciplinary hearing and was not accorded an opportunity to defend himself against the allegations that were levelled against him and that formed the basis of his summary dismissal from employment. The Respondent, on their part, asserted that via a Memo dated 26th January 2017, the Claimant was invited for a disciplinary hearing that was scheduled for 31st January 2017. On the Memo, the accusations against him and his right to accompaniment by a colleague were set out. He attended the hearing and was heard. As such, the edicts of procedural fairness were complied with.
87. This Court has duly considered the Claimant’s evidence that he attended the meeting on 31st January 2017 upon the request of his Manager, Lilian, to visit the Human Resource Manager’s office. He was not informed that the meeting was to constitute a disciplinary hearing, which would have enabled him to prepare his defence. The Respondent did not adequately challenge this pivotal evidence, or at all. Strangely, although it would be reasonable to expect, given the circumstances of this matter, that the Manager would be called to testify, the Respondent failed to do so. I can only infer in an adverse manner and conclude that had she been called, she would have provided unfavourable evidence to the Respondent concerning the invitation.
88. When an employee is to undergo a disciplinary hearing, the law mandates that such an employee must be notified in advance of the hearing date, as well as the grounds upon which the disciplinary process against them is based. Typically, the grounds are incorporated either in a specific disciplinary hearing invitation document or by having that document reference an earlier document, such as a show cause letter, where the same grounds could have been outlined.
89. It is for this reason that I must, at this point, determine the contested issue whether or not the alleged invitation memorandum was served on the Claimant. The Respondent contended that the memorandum was sent via email to the Claimant. The Claimant argued that such service wouldn’t have been possible, as his email had been deactivated on the very day. The Respondent, without any proof—which they could have easily provided as a Tech enterprise—if it were true, asserted that the deactivation occurred at midnight after the memorandum had been received.
90. Where service is denied, it behoves the person asserting the same to prove it. I have no hesitation in concluding that the Respondent didn’t prove service of the invitation memorandum on the Claimant. It is strange that despite the bold assertion regarding the service, they didn’t present the email under which the memorandum was sent as evidence before the Court. A clear indication that there was no service.
91. The Respondent took a position that there were disciplinary proceedings that took place on 31st January 2017. Surprisingly, no minutes of the same were placed before this Court to confirm this. The document dated 13th February 2017, titled “Disciplinary Recommendation for Gideon Ngenye Mutinda’’ cannot be held to be disciplinary proceedings as the Respondent labels them.
92. Interestingly, the document isn’t signed by the author or the other four senior officers who were supposed to approve the contents thereof.
93. Maybe the Respondent needs to take heed that it is not every meeting that should be labelled as a disciplinary hearing meeting, and even if there was such labelling, the Court will cut the same to ascertain whether indeed it took the character of a disciplinary hearing as contemplated by the law.
94. In the case of the Chief Registrar of the Judiciary and 2 Others vs LMN [2025] KESC 53[KLR], the Supreme Court emphasised the need for fairness in disciplinary processes, thus;
“We begin this judgment by declaring that the fairness of any disciplinary process is today a constitutional imperative, irrespective of the status of the officer involved. The process must uphold all the tenets of fair administrative action under Article 47 and the right to a fair hearing under Article 50 of the Constitution.
95. The long and short of the foregoing is that this Court is not persuaded that the Claimant was invited for a disciplinary hearing scheduled for 31st January 2017, and that such a disciplinary hearing took place.
96. I now examine whether the summary dismissal was substantively justified. As correctly argued by Counsel for the Respondent, summary dismissal refers to dismissing an employee without notice or with less notice than what they are entitled to by the employment contract or law. See also section 44[1] of the Employment Act.
97. Section 44[3] provides when the employer may dismiss an employee summarily, thus;
“Subject to the provisions of this Act, an employer may dismiss an employee summarily when the employee has, by his conduct, indicated that he has fundamentally breached his obligation arising under the contract of employment.’’
98. Section 44[4] delineates a catalogue of issues that may constitute gross misconduct sufficient to justify the summary dismissal of an employee for lawful cause. It is important to note that this list is not exhaustive. An employer may dismiss an employee for matters beyond those listed, provided that the conduct demonstrates an impact on the employer-employee relationship as outlined in subsection 3.
99. The origin of the Claimant’s troubles is clear. A SIM swap was carried out at his counter, resulting in the Respondent’s customer losing money from his account due to fraudulent activity linked to the swap. Bearing in mind the standard of proof that was expected of the Respondent in proving the reason for the summary dismissal and that the reason was fair and valid, a balance of probabilities, and not beyond a reasonable doubt, I am persuaded, for the reasons immediately hereinafter, that the Respondent had a reason, a valid and fair one to dismiss the Claimant summarily.
100. During his cross-examination, the Claimant acknowledged that the CCTV footage was reviewed in his presence during the investigation. It clearly indicated that the transaction was carried out at counter 6. His assertions regarding the authenticity of the footage, in my opinion, lack convincing merit.
101. He didn’t deny that his credentials were used to carry out the transaction in question. He didn’t explain how they were accessed for use if he was not the one who used them to perform the transaction.
102. In an employment relationship, the employee bears a duty to safeguard the interests of the employer. The employee is obliged not to engage in conduct likely to jeopardise the employer''s interests. The Claimant''s actions demonstrated a disregard for this obligation, constituting a fundamental breach of the contractual duty.
103. I have considered the industry in which the Respondent is involved and, without hesitation, conclude that incidents like the one in question could seriously negatively impact its reputation and finances if left unaddressed. In light of this, I see no other conclusion. The summary dismissal was justified. It was substantively fair.
Whether the Claimant is entitled to the prayers sought.
General damages
104. A claim for general damages must be established through sufficient evidence that would lay a basis for and attract the grant of the same. No doubt, the Claimant did not place forth such evidence. The relief is for the declining. It is hereby rejected.
One month''s pay in lieu of Notice, KShs. 73,483.00
105. Having found that the summary dismissal was substantively fair, I have no reason to award the Claimant notice pay.
12 months'' salary compensation for unfair termination
106. Section 49[1][c] of the Employment Act grants the Court the authority to award compensation to an employee who has successfully challenged their employer’s decision to summarily dismiss them or terminate their employment on the grounds that the dismissal or termination was wrongful or unfair. However, it is important to note that this authority is discretionary and exercised based on the specific circumstances of each case.
107. I have carefully considered the circumstances of this matter, including the Court''s conclusion that, on a balance of probabilities, the Respondent proved that the Claimant was involved in the SIM swap and that liability in this case arises solely from the Respondent''s failure to adhere to the principles of procedural fairness. I find that the Claimant deserves only one month’s salary as compensation for the unfair summary dismissal.
12 pending days for Annual Leave KShs. 29,393.00
108. The claim under this head was not challenged. In fact, the dismissal letter alludes to the Claimant’s entitlement to the same. It is hereby granted.
Contribution towards the Employees'' Pension Scheme KShs. 188,901.60
109. The Respondent did not challenge this relief sought. It was specifically pleaded. If the Respondent did not believe that it was entitled to, they would have read evidence to discount the entitlement. The relief is hereby granted.
An Order that the Claimant be reinstated to employment with immediate effect.
110. This Court is unable to grant the relief sought under this head for two reasons. Firstly, having established that the Claimant committed an act of gross misconduct, which justified his summary dismissal, it would be remiss of this Court to order his reinstatement. Secondly, pursuant to section 12 of the Employment and Labour Relations Court Act, the remedy of reinstatement is unavailable where three years have elapsed since the termination of the employee’s employment.
111. In the upshot, Judgment is hereby entered for the Claimant in the following terms;
I. A declaration that the summary dismissal against the Claimant was procedurally unfair.
II. Compensation for unfair summary dismissal, under section 49[1][c] of the Employment Act, one month’s gross salary KShs. 73,483.20
III. Compensation for earned but unutilised leave days, KShs. 29,393.00.
IV. Entitled contributions made towards the Employee Pension Scheme, KShs. 188, 901.60
V. Interest on the awarded sum from the date of this judgment till full payment.
VI. Costs of the suit.
Read, Signed and Delivered this 16th day of October 2025.
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