BACKGROUND
1. Asserting that he came into the employment of the Respondent under a two-year fixed-term contract as a Quality Manager, whose contract the latter unfairly didn’t allow to run its full course, the Claimant sued the Respondent, seeking the following reliefs;
i) One month's salary in lieu of notice =Kshs. 250,000/-;
ii) Leave days earned but not taken (19.16 days x 9,615.38/) is (Less Kshs. 119,684/- already paid Kshs.184,230.68/-Kshs. 64,546.68/-;
iii) 1 day worked in April (23rd April 2021) = 9,615.38/-;
iv) Award for the remaining period of contract; 6 months, 17 days (from24th April 2021 until 12th November 2021) = Kshs. 1,663,461.46/-;
v) Damages for unfair and unlawful dismissal (Kshs. 250,000/- x 12 months) = Kshs. 3,000,000/-;
vi) Benefits due from the staff Pension Scheme at 2 .5% per month of taxable Salary = Ksh. 150,000/-.
Total amount claimed = Kshs. 5,137,623.52/-
2. The Respondent resisted the Claimant’s claim, contending that the termination of the Claimant’s employment was procedurally and substantively fair. He is thus not entitled to the reliefs sought.
3. After hearing the parties on their respective cases, this Court directed that they file their written submissions. They did, and their submissions are on record.
The Claimant’s Case
4. The Claimant was engaged as the Quality Manager through an employment contract between the Claimant and the Respondent on 13th November 2019, for two years, which employment contract was to lapse on 12th November 2021.
5. During his tenure, he consistently delivered high-quality service to the Respondent, achieving notable results such as increasing Good Manufacturing Practices standards from around 44% to 70.7% by December 2020. Subsequently, the Respondent revised its evaluation criteria to gather more detailed information, successfully renewed the Kenya Bureau of Standards (KEBS) permit, facilitated the registration of the Twiga Foods distribution partnership, conducted loss intelligence analysis, and reviewed several standard operating procedures to optimise products and processes, among others.
6. On 8 April 2021, the Respondent’s Human Resource Manager served him with a Notice to Show Cause dated 7 April 2021, asking him to explain why disciplinary action should not be taken due to an alleged report that he failed to send samples needed to support an application to the Food and Drugs Authority (FDA).
7. In the Show Cause Notice, the Respondent further alleged that his actions did not accord with his role, duties, and responsibilities. Additionally, the actions amounted to negligence, carelessness, and improper work performance. The allegations were unfounded.
8. The Head of Legal and Compliance first brought the matter regarding the registration with the Ghana FDA to his attention on 8 February 2021, at 11:55 a.m. during a telephone conversation. During the discussion, she directed him to an email sent to him on the same day, which included an attachment listing specific requirements.
9. Upon checking the email, it dawned on him that the attachment was missing. He was prompted to write back to the head of legal and compliance, requesting the missing attachment. As a result, the attachment was sent to him.
10. Upon receiving the attachment, he immediately called the Head of Legal and Compliance to further inquire about the necessity of sending physical samples to Ghana for FDA registration and submission deadlines. This was prompted by the fact that he had previously received an email from Mr. Himanshu, dated 5th February 2021, which only requested documents, including external lab analysis reports, but did not mention the physical samples. In response, the Head of Legal and Compliance directed him to contact Mr. Jackson Mwiji, the Country Commercial Manager, for guidance.
11. When he inquired about the need to submit physical samples to the FDA in Ghana, Jackson Mwiji informed him that they were unnecessary at that time and agreed to update him further if required.
12. After seeking clarification as instructed by the Head of Legal and Compliance and confirming that physical samples were not necessary then, he proceeded on the same day, 8 April 2021, to obtain an external quotation for laboratory analysis, as was the usual practice for analysing samples.
13. Subsequently, he sought approval from the Group Managing Director for the quotation from the external laboratory, which was granted. On 9 February 2021, he sent the samples to Achelab Laboratory Services for analysis.
14. To his surprise, on 9 February 2021, the CEO sent him an email inquiring about the delay. He responded by explaining that the matter had come to his attention on 8 February 2021, and that he had already collected the samples for external laboratory analysis.
15. External laboratory sample analysis typically takes 5 to 10 days. On 17 February 2021, the analysis report was released, which he promptly sent to the Ghana team along with all required documentation.
16. On 17th March 2021, the Business Development Lead in Ghana, Mr. Himanshu, sent an email indicating that the physical samples had not yet been received in Ghana. In response, the following morning, he prepared all the necessary physical samples for dispatch, which were released to UPS Courier by 4:15 pm.
17. On the same day, 18th March 2021, after the physical samples had been dispatched to Ghana, the CEO sent another email to the Claimant at 8:51 pm, questioning why the samples had not been submitted on time. This was despite the speed with which he had acted in dispatching the physical samples. Any alleged delay, if there was one, was caused by an earlier miscommunication from Mr. Himanshu, who only requested documents, and Mr. Jackson, who confirmed to him over the phone that the physical samples were not necessary at that time. He did not cause any delay at all.
18. He contended that he performed his duties in accordance with his employment contract diligently, obeyed the instructions given, and submitted both the documents with sample analysis and the physical samples whenever they were requested without delay. The receipt of the same was acknowledged by Mr. Himanshu, the Business Development Lead in Ghana, who, in an email dated 18th March 2021, praised the team, stating that the turnaround time for the sample requests was remarkably fast.
19. He stated further that it is not true that any delay was caused by me. The purported delay, if there was any, was caused by the Customs office in Ghana, as communicated by one Amanda Godzekpo in her email dated 26th March 2021, which stated that the items had been detained by Customs Ghana for some time and that they were in the process of having them released.
20. He contended that the Notice to Show Cause issued to him dated 7th April 2021 was done in bad faith, lacking justification, malicious, and an afterthought, whose sole intention was to satisfy the CEO's personal vendetta, as he had ongoing personal issues with him.
21. The disciplinary hearing held on 16th April 2021 and the subsequent summary dismissal were inspired by malice, bad faith, and a complete lack of justification. He had not committed any breach, fundamental or otherwise, to warrant such drastic action from his employer.
22. The Respondent’s actions constituted unlawful or unfair dismissal and an infringement of his right to fair labour practices.
23. His performance score as of 14th April 2021 was 93.78%, which is an excellent performance by any standards, as reflected in the official performance report released by the Respondent.
24. After the unlawful termination of his employment, he has remained jobless with bills to pay and a family to support, being the sole breadwinner; his expectations of completing his contractual term were utterly shattered.
25. Cross-examined by Counsel for the Respondent, the Claimant testified that he was in charge of quality management as a quality manager. His department was to ensure the quality of products.
26. The matter was first brought to his attention by an email from Ms. Lorna. He wasn’t privy to any earlier email correspondence between her and the others on the subject matter.
27. In the email, she was inquiring about the documentation status. On the same day, he replied, bringing to the sender's attention that her email was missing the attachments mentioned therein. She subsequently sent the attachments.
28. When the CEO inquired why the process was not moving, he explained that product analysis takes time, approximately five days.
29. Ms. Lorna introduced the Claimant to Mr. Mwinji. All the logs he presented as evidence testify that he called Mr. Mwinji as she directed.
30. He responded to the show cause letter and was subsequently invited to a disciplinary hearing, which he attended. Mr Mwinji was present at the disciplinary meeting. During the hearing, he mentioned that there had been a miscommunication regarding whether samples or documents were required.
31. The trail of emails reveals that the documents were dispatched expeditiously.
The Respondent’s case
32. The Respondent presented one witness, its Human Resources Manager, Mr. Julius Angoli, to testify on its behalf. The witness adopted his statement dated 13 October 2021 as his evidence in chief.
33. The witness stated that the Respondent engaged the services of the Claimant on November 13, 2019, as a Quality Manager.
34. On 7th April 2021, the Respondent received a report that the Claimant had failed to send product samples as required to facilitate an application to the FDA, Ghana. As a result, the Respondent lost six million Kenya Shillings.
35. Consequently, the Respondent issued him a show cause letter on 7th April 2024. He was required to explain why he could not be dismissed for improper work performance, which was his duty to perform under his contract of employment.
36. The Claimant responded to the show cause letter, but the Respondent found the response unsatisfactory. Subsequently, he was invited to a disciplinary hearing scheduled for 16 April 2021.
37. After considering the response to the show cause letter and the representations made by the Claimant during the disciplinary hearing, the Respondent decided to terminate his employment for gross misconduct. The decision was communicated to him via a letter dated 22nd April 2021.
38. The Claimant was not unfairly dismissed as he alleges. The dismissal was fair, and thus, he is not entitled to the reliefs sought.
39. The Claimant utilised all his leave days. After dismissal, the Claimant cleared with the Respondent and was paid all his terminal dues. A certificate of service was issued to him.
40. Cross-examined by Counsel for the Claimant, the witness testified that the Claimant was compensated for the leave days that had been earned but not utilised. His last pay slip testifies to this. The money was wired into his account. However, the Respondent hasn’t presented any documentary proof for it.
41. The Claimant had a job description. The Respondent has not presented the same as evidence.
42. It was the Claimant’s role, out of practice, to send product samples to the country where the importer was resident.
43. Mr Himanshu Joshi was the Respondent’s Business leader in Ghana. He had a new distributor in the country. He was charged with ensuring that the process was concluded seamlessly. Regarding the registration process with the FDA in Ghana, he had the duty to provide the requisite details.
44. The email dated 18th March 2021, written by the claimant to Martin Githome and copied to six other people, confirms that he sent the samples to Ghana on the same day. Ignoring this, the show cause letter accused him of failing to send the samples.
45. None of the persons to whom the email was sent raised any complaint concerning the timing, manner, and quality of the dispatch of the samples.
46. In his email dated 18 March 2021, Mr. Joshe appreciated the Claimant's promptness in dispatching the samples.
47. He asserted that, according to him, the samples ought to have been dispatched in February 2021. The process was triggered on 5th February 2021. However, there is no document from which it can be discerned that he had instructions to send the samples in February.
48. The Commercial Manager gave him the figure of a six-million loss orally. The Respondent has no document to demonstrate the loss.
49. Though he stated in the show cause letter that when the Claimant was asked about the delay, he answered that he assumed that the importer would buy the samples, he didn’t have any paragraph in the minutes of the disciplinary hearing expressing the same.
50. Looking at the documents submitted to the court by the Claimant, one would safely conclude that the entire process was a collaborative effort.
51. When the Court sought clarification from the witness, he stated that the Respondent didn’t have a standard operations procedure document because each country has different import procedures.
52. In the matter at hand, there was no document outlining specific timelines. The transaction under question was the first regarding the product for the Ghanaian market.
Analysis and Determination
53. I have carefully considered the pleadings by the parties, their evidence and submissions, and the following issues emerge for determination, thus:
a) Was the summary dismissal against the Claimant fair?
b) Whether the Claimant is entitled to the reliefs sought.
54. A summary dismissal against an employee or termination of an employee’s employment only passes the fairness test if it is demonstrated that the process leading to the decision to dismiss or terminate, and the decision, embodies procedural and substantive fairness, as required by section 45 of the Employment Act.
55. Section 41 of the Employment Act outlines a mandatory procedure that an employer must follow when contemplating the summary dismissal of an employee or the termination of their employment. The procedure encompasses three key elements. First, the employer must notify the affected employee of their contemplation and the reasons behind it. Second, the employee must be given a sufficient opportunity to prepare and present their case, accompanied by a colleague of their choice or a trade union representative, if they are a union member. Lastly, the employer must take into account the representations made before arriving at a final decision on the matter.
56. There is no dispute that the Claimant received a show cause letter dated 7th April 2021. The accusations against him were clearly outlined in it. The Claimant responded to that letter. Subsequently, exercising its managerial discretion, the Respondent invited him to a disciplinary hearing. The Claimant was heard, and the Respondent then dismissed him summarily. Undeniably, the Respondent adhered to procedural fairness as contemplated in section 41 of the Employment Act. The summary dismissal was procedurally fair, therefore.
57. I now turn to consider the substantive justification aspect. Sections 43 and 45[2] of the Employment Act speak to substantive fairness. The two sections place upon the employer a twin legal burden to discharge in a dispute emanating from an employee’s employment termination. Under section 43, the employer bears the burden of proving the reasons for the termination. Section 45[2] imposes a further duty on the employer to demonstrate that the reason[s] were fair and valid. See—Pius Isundu Machafu vs Lavington Security [2017] eKLR. Any failure to discharge both or any of them renders the termination unfair.
58. The process leading to the summary dismissal of the Claimant started with the show cause letter dated 7th April 2021 that read in part;
“On 18th March 2021, we received a report that you had failed to send samples as required to facilitate the application to the FDA, Ghana. This caused a delay in business turnaround that resulted in a material loss of about 6M in revenue. When you were asked what occasioned the delay, you indicated that it was an oversight from your end and that you assumed the team would buy the samples.
Your actions do not complement the role, duties and responsibilities that you assigned and amount to negligence, careless and improper performance of work which was your duty to perform under your contract. In light of the aforementioned, you are hereby given a chance by giving reasonable and acceptable reason[s] to show cause as to why disciplinary action should not be taken against you….”
59. The Claimant was summarily dismissed via a letter dated 22nd April 2021, as paraphrased;
“Reference is made to the show cause letter dated 7th April 2021 and issued to you on 8th April 2021, your response dated 8th April 2021 and the subsequent disciplinary hearing held on 16th April 2021. From the show cause response and disciplinary hearing, it was noted that you failed to send samples as required to facilitate the application to FDA, Ghana. This caused a delay in business turnaround and resulted in material loss of about KShs. 6M in revenue.
The management has considered your response and submissions in the hearing and found no justification for your actions. Your action amounts to negligence, carelessness and improper performance of work which was your duty to perform under your contract. Therefore, the management has decided to summarily dismiss you on grounds of gross misconduct as per Employment Act ,2007, section 44[4][c] with effect from 23rd April 2021 ….”
60. A valid reason for the termination of an employee’s employment or summary dismissal must be one that is logical, sound and supported by evidence or facts. One that should to a reasonable man be acceptable and believable.
61. The Court got the Claimant as asserting throughout that the reason[s] for the summary dismissal against him was not sound and supported by evidence or facts.
62. The show cause letter laid out an accusation against the Claimant inter alia, that he failed to dispatch product samples as required to facilitate an application to the FDA, Ghana. This accusation was the reason for the summary dismissal against him. What makes this reason illogical, unsound and unsupported by facts is the fact that the documentary evidence by the Claimant, and as admitted by the Respondent’s witness, reveals that the samples were indeed sent on 17th March 2021. The same day, the analysis report was received. By email [produced as evidence by the Respondent], Mr. Himanashu Joshi wrote, “Hi Team. Thanks a million, to turnaround the sample request so fast! Greatly appreciated.
63. In his evidence under cross-examination, the Respondent's witness testified that the Respondent didn’t have a standard operating procedure for introducing products into new markets, as each country has unique processes. In my view, they needed to demonstrate that from the outset, the Claimant knew that the Ghanaian processes required product samples.
64. In a bid to discount the Claimant’s assertion that the requirement was not brought to his attention by Mr. Hamanshu or any other person, the Respondent relied on an email dated 8th February 2021 by Ms. Lorna [ the Legal Officer], which was copied to him. It is essential to point out that on 5th February 2021, Mr. Hamanshu wrote to Lorna, thus;
“Good evening. I trust you are well. Attached please kindly find the first order from Ghana from the new Distributor. Kindly please advise when we will be able to submit the documents to Forwin for onward submission to the FDA for approval, and then we can get the attached order shipped.”
It is imperative to point out that Mr. Hamanshu did not ask for or mention physical samples.
65. Following the email, on 8th February 2021, Ms Lorna wrote an email to the Claimant and copied the same to others, thus,
“Jayson, how far are you on this? This is extremely urgent.” I am of the clear view that this inquiry was about the position of the documents Mr. Hamanshu had asked about in his email of 5th February 2021. It had nothing to do with the physical samples. Counsel for the Respondent’s suggestion that it was, in my opinion, is misplaced.
66. Promptly, in his response email at 12:16 PM, the Claimant stated that he had just learnt of it and would check what was expected of them. In a subsequent email at 12:16 PM, he wrote to Lorna, indicating that her email was missing attachments. The attachments were resent in a separate email. There was no evidence that the attachments were sent or that any of them referred to the samples being sent to Ghana.
67. I have carefully considered the email correspondences among the various officers of the Respondent entity from 8th February 2021 to 16th March 2021. None referred to the dispatch of samples to Ghana or requested the Claimant to send them. They focused solely on the requisite documents, laboratory analyses, and reports. It is clear to me that the issue of dispatching the samples arose on 17th March 2021, and as noted by Mr. Hamanshu in his email of 18th March 2021, the samples were dispatched expeditiously.
68. Counsel for the Respondent submitted that at the disciplinary hearing, the Claimant stated there had been a miscommunication regarding the necessity of dispatching the samples to Ghana. He admitted the infraction and incriminated himself. Considering the circumstances of the matter, I hold a different view. This statement reflected the proper position.
69. To make the alleged infraction against the Claimant appear severe, the Respondent asserted without evidence that the Claimant’s actions caused it to suffer a loss of KShs. 6,000,000. This drives the court to perceive bad faith and a lack of candour on the part of the Respondent during the material period and trial.
70. For the reasons stated above, I remain unconvinced that the Claimant failed to send the samples to Ghana, that the samples were sent without promptness, or that there was any negligence or carelessness involved. No reasonable employer could summarily dismiss an employee under the circumstances and for the reasons presented by the Respondent in this matter. The summary dismissal against the Claimant was substantively unfair.
71. Section 49[1][c] of the Employment Act, 2007, bestows upon the Court the authority to grant compensatory relief in favour of an employee who has successfully challenged the termination of his employment or summary dismissal from employment. However, it is pertinent to point out that the authority is exercised discretionarily depending on the circumstances of each case.
72. I have thoroughly considered the circumstances surrounding the Claimant’s dismissal from employment, including that it was without substantive justification and good faith, the length of service, the period remaining until the expiration of his contract, and his expressed expectation that it would run its full course. I hold that he is entitled to the compensatory award, amounting to six months' gross salary, Kshs. 1,500,000.
73. The Claimant’s Contract was terminable by one month’s notice. Undeniably, the same was not issued. Having found that the summary dismissal was unfair, if the court fails to award notice pay in favour of the Claimant, it will be tantamount to rewarding the Respondent for its wrongs. I award him one month’s salary in lieu of notice.
74. The Respondent admitted that the Claimant is entitled to pay for the one day worked in April 2021. The relief is granted.
75. Having granted the Claimant the compensatory relief contemplated under section 49[1][c] of the Employment Act, a further salary award for the remaining contract period could amount to overcompensation. Therefore, I decline the relief under this head.
76. 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 substantively unfair.
ii) Compensation pursuant to the provisions of section 49[1][c] of the Employment Act, six months’ gross salary, Kshs. 1,500,000.
iii) One month’s salary in lieu of notice, Kshs. 250,000.
iv) Salary for the one day worked in April 2021, Kshs. 9,615.38.
v) Costs of the suit.
vi) Interest on the sum awarded above, at court rates from the date of this Judgment till full payment.
Read, Signed and Delivered this 9th day of June 2025.
1. Asserting that he came into the employment of the Respondent under a two-year fixed-term contract as a Quality Manager, whose contract the latter unfairly didn’t allow to run its full course, the Claimant sued the Respondent, seeking the following reliefs;
i) One month's salary in lieu of notice =Kshs. 250,000/-;
ii) Leave days earned but not taken (19.16 days x 9,615.38/) is (Less Kshs. 119,684/- already paid Kshs.184,230.68/-Kshs. 64,546.68/-;
iii) 1 day worked in April (23rd April 2021) = 9,615.38/-;
iv) Award for the remaining period of contract; 6 months, 17 days (from24th April 2021 until 12th November 2021) = Kshs. 1,663,461.46/-;
v) Damages for unfair and unlawful dismissal (Kshs. 250,000/- x 12 months) = Kshs. 3,000,000/-;
vi) Benefits due from the staff Pension Scheme at 2 .5% per month of taxable Salary = Ksh. 150,000/-.
Total amount claimed = Kshs. 5,137,623.52/-
2. The Respondent resisted the Claimant’s claim, contending that the termination of the Claimant’s employment was procedurally and substantively fair. He is thus not entitled to the reliefs sought.
3. After hearing the parties on their respective cases, this Court directed that they file their written submissions. They did, and their submissions are on record.
The Claimant’s Case
4. The Claimant was engaged as the Quality Manager through an employment contract between the Claimant and the Respondent on 13th November 2019, for two years, which employment contract was to lapse on 12th November 2021.
5. During his tenure, he consistently delivered high-quality service to the Respondent, achieving notable results such as increasing Good Manufacturing Practices standards from around 44% to 70.7% by December 2020. Subsequently, the Respondent revised its evaluation criteria to gather more detailed information, successfully renewed the Kenya Bureau of Standards (KEBS) permit, facilitated the registration of the Twiga Foods distribution partnership, conducted loss intelligence analysis, and reviewed several standard operating procedures to optimise products and processes, among others.
6. On 8 April 2021, the Respondent’s Human Resource Manager served him with a Notice to Show Cause dated 7 April 2021, asking him to explain why disciplinary action should not be taken due to an alleged report that he failed to send samples needed to support an application to the Food and Drugs Authority (FDA).
7. In the Show Cause Notice, the Respondent further alleged that his actions did not accord with his role, duties, and responsibilities. Additionally, the actions amounted to negligence, carelessness, and improper work performance. The allegations were unfounded.
8. The Head of Legal and Compliance first brought the matter regarding the registration with the Ghana FDA to his attention on 8 February 2021, at 11:55 a.m. during a telephone conversation. During the discussion, she directed him to an email sent to him on the same day, which included an attachment listing specific requirements.
9. Upon checking the email, it dawned on him that the attachment was missing. He was prompted to write back to the head of legal and compliance, requesting the missing attachment. As a result, the attachment was sent to him.
10. Upon receiving the attachment, he immediately called the Head of Legal and Compliance to further inquire about the necessity of sending physical samples to Ghana for FDA registration and submission deadlines. This was prompted by the fact that he had previously received an email from Mr. Himanshu, dated 5th February 2021, which only requested documents, including external lab analysis reports, but did not mention the physical samples. In response, the Head of Legal and Compliance directed him to contact Mr. Jackson Mwiji, the Country Commercial Manager, for guidance.
11. When he inquired about the need to submit physical samples to the FDA in Ghana, Jackson Mwiji informed him that they were unnecessary at that time and agreed to update him further if required.
12. After seeking clarification as instructed by the Head of Legal and Compliance and confirming that physical samples were not necessary then, he proceeded on the same day, 8 April 2021, to obtain an external quotation for laboratory analysis, as was the usual practice for analysing samples.
13. Subsequently, he sought approval from the Group Managing Director for the quotation from the external laboratory, which was granted. On 9 February 2021, he sent the samples to Achelab Laboratory Services for analysis.
14. To his surprise, on 9 February 2021, the CEO sent him an email inquiring about the delay. He responded by explaining that the matter had come to his attention on 8 February 2021, and that he had already collected the samples for external laboratory analysis.
15. External laboratory sample analysis typically takes 5 to 10 days. On 17 February 2021, the analysis report was released, which he promptly sent to the Ghana team along with all required documentation.
16. On 17th March 2021, the Business Development Lead in Ghana, Mr. Himanshu, sent an email indicating that the physical samples had not yet been received in Ghana. In response, the following morning, he prepared all the necessary physical samples for dispatch, which were released to UPS Courier by 4:15 pm.
17. On the same day, 18th March 2021, after the physical samples had been dispatched to Ghana, the CEO sent another email to the Claimant at 8:51 pm, questioning why the samples had not been submitted on time. This was despite the speed with which he had acted in dispatching the physical samples. Any alleged delay, if there was one, was caused by an earlier miscommunication from Mr. Himanshu, who only requested documents, and Mr. Jackson, who confirmed to him over the phone that the physical samples were not necessary at that time. He did not cause any delay at all.
18. He contended that he performed his duties in accordance with his employment contract diligently, obeyed the instructions given, and submitted both the documents with sample analysis and the physical samples whenever they were requested without delay. The receipt of the same was acknowledged by Mr. Himanshu, the Business Development Lead in Ghana, who, in an email dated 18th March 2021, praised the team, stating that the turnaround time for the sample requests was remarkably fast.
19. He stated further that it is not true that any delay was caused by me. The purported delay, if there was any, was caused by the Customs office in Ghana, as communicated by one Amanda Godzekpo in her email dated 26th March 2021, which stated that the items had been detained by Customs Ghana for some time and that they were in the process of having them released.
20. He contended that the Notice to Show Cause issued to him dated 7th April 2021 was done in bad faith, lacking justification, malicious, and an afterthought, whose sole intention was to satisfy the CEO's personal vendetta, as he had ongoing personal issues with him.
21. The disciplinary hearing held on 16th April 2021 and the subsequent summary dismissal were inspired by malice, bad faith, and a complete lack of justification. He had not committed any breach, fundamental or otherwise, to warrant such drastic action from his employer.
22. The Respondent’s actions constituted unlawful or unfair dismissal and an infringement of his right to fair labour practices.
23. His performance score as of 14th April 2021 was 93.78%, which is an excellent performance by any standards, as reflected in the official performance report released by the Respondent.
24. After the unlawful termination of his employment, he has remained jobless with bills to pay and a family to support, being the sole breadwinner; his expectations of completing his contractual term were utterly shattered.
25. Cross-examined by Counsel for the Respondent, the Claimant testified that he was in charge of quality management as a quality manager. His department was to ensure the quality of products.
26. The matter was first brought to his attention by an email from Ms. Lorna. He wasn’t privy to any earlier email correspondence between her and the others on the subject matter.
27. In the email, she was inquiring about the documentation status. On the same day, he replied, bringing to the sender's attention that her email was missing the attachments mentioned therein. She subsequently sent the attachments.
28. When the CEO inquired why the process was not moving, he explained that product analysis takes time, approximately five days.
29. Ms. Lorna introduced the Claimant to Mr. Mwinji. All the logs he presented as evidence testify that he called Mr. Mwinji as she directed.
30. He responded to the show cause letter and was subsequently invited to a disciplinary hearing, which he attended. Mr Mwinji was present at the disciplinary meeting. During the hearing, he mentioned that there had been a miscommunication regarding whether samples or documents were required.
31. The trail of emails reveals that the documents were dispatched expeditiously.
The Respondent’s case
32. The Respondent presented one witness, its Human Resources Manager, Mr. Julius Angoli, to testify on its behalf. The witness adopted his statement dated 13 October 2021 as his evidence in chief.
33. The witness stated that the Respondent engaged the services of the Claimant on November 13, 2019, as a Quality Manager.
34. On 7th April 2021, the Respondent received a report that the Claimant had failed to send product samples as required to facilitate an application to the FDA, Ghana. As a result, the Respondent lost six million Kenya Shillings.
35. Consequently, the Respondent issued him a show cause letter on 7th April 2024. He was required to explain why he could not be dismissed for improper work performance, which was his duty to perform under his contract of employment.
36. The Claimant responded to the show cause letter, but the Respondent found the response unsatisfactory. Subsequently, he was invited to a disciplinary hearing scheduled for 16 April 2021.
37. After considering the response to the show cause letter and the representations made by the Claimant during the disciplinary hearing, the Respondent decided to terminate his employment for gross misconduct. The decision was communicated to him via a letter dated 22nd April 2021.
38. The Claimant was not unfairly dismissed as he alleges. The dismissal was fair, and thus, he is not entitled to the reliefs sought.
39. The Claimant utilised all his leave days. After dismissal, the Claimant cleared with the Respondent and was paid all his terminal dues. A certificate of service was issued to him.
40. Cross-examined by Counsel for the Claimant, the witness testified that the Claimant was compensated for the leave days that had been earned but not utilised. His last pay slip testifies to this. The money was wired into his account. However, the Respondent hasn’t presented any documentary proof for it.
41. The Claimant had a job description. The Respondent has not presented the same as evidence.
42. It was the Claimant’s role, out of practice, to send product samples to the country where the importer was resident.
43. Mr Himanshu Joshi was the Respondent’s Business leader in Ghana. He had a new distributor in the country. He was charged with ensuring that the process was concluded seamlessly. Regarding the registration process with the FDA in Ghana, he had the duty to provide the requisite details.
44. The email dated 18th March 2021, written by the claimant to Martin Githome and copied to six other people, confirms that he sent the samples to Ghana on the same day. Ignoring this, the show cause letter accused him of failing to send the samples.
45. None of the persons to whom the email was sent raised any complaint concerning the timing, manner, and quality of the dispatch of the samples.
46. In his email dated 18 March 2021, Mr. Joshe appreciated the Claimant's promptness in dispatching the samples.
47. He asserted that, according to him, the samples ought to have been dispatched in February 2021. The process was triggered on 5th February 2021. However, there is no document from which it can be discerned that he had instructions to send the samples in February.
48. The Commercial Manager gave him the figure of a six-million loss orally. The Respondent has no document to demonstrate the loss.
49. Though he stated in the show cause letter that when the Claimant was asked about the delay, he answered that he assumed that the importer would buy the samples, he didn’t have any paragraph in the minutes of the disciplinary hearing expressing the same.
50. Looking at the documents submitted to the court by the Claimant, one would safely conclude that the entire process was a collaborative effort.
51. When the Court sought clarification from the witness, he stated that the Respondent didn’t have a standard operations procedure document because each country has different import procedures.
52. In the matter at hand, there was no document outlining specific timelines. The transaction under question was the first regarding the product for the Ghanaian market.
Analysis and Determination
53. I have carefully considered the pleadings by the parties, their evidence and submissions, and the following issues emerge for determination, thus:
a) Was the summary dismissal against the Claimant fair?
b) Whether the Claimant is entitled to the reliefs sought.
54. A summary dismissal against an employee or termination of an employee’s employment only passes the fairness test if it is demonstrated that the process leading to the decision to dismiss or terminate, and the decision, embodies procedural and substantive fairness, as required by section 45 of the Employment Act.
55. Section 41 of the Employment Act outlines a mandatory procedure that an employer must follow when contemplating the summary dismissal of an employee or the termination of their employment. The procedure encompasses three key elements. First, the employer must notify the affected employee of their contemplation and the reasons behind it. Second, the employee must be given a sufficient opportunity to prepare and present their case, accompanied by a colleague of their choice or a trade union representative, if they are a union member. Lastly, the employer must take into account the representations made before arriving at a final decision on the matter.
56. There is no dispute that the Claimant received a show cause letter dated 7th April 2021. The accusations against him were clearly outlined in it. The Claimant responded to that letter. Subsequently, exercising its managerial discretion, the Respondent invited him to a disciplinary hearing. The Claimant was heard, and the Respondent then dismissed him summarily. Undeniably, the Respondent adhered to procedural fairness as contemplated in section 41 of the Employment Act. The summary dismissal was procedurally fair, therefore.
57. I now turn to consider the substantive justification aspect. Sections 43 and 45[2] of the Employment Act speak to substantive fairness. The two sections place upon the employer a twin legal burden to discharge in a dispute emanating from an employee’s employment termination. Under section 43, the employer bears the burden of proving the reasons for the termination. Section 45[2] imposes a further duty on the employer to demonstrate that the reason[s] were fair and valid. See—Pius Isundu Machafu vs Lavington Security [2017] eKLR. Any failure to discharge both or any of them renders the termination unfair.
58. The process leading to the summary dismissal of the Claimant started with the show cause letter dated 7th April 2021 that read in part;
“On 18th March 2021, we received a report that you had failed to send samples as required to facilitate the application to the FDA, Ghana. This caused a delay in business turnaround that resulted in a material loss of about 6M in revenue. When you were asked what occasioned the delay, you indicated that it was an oversight from your end and that you assumed the team would buy the samples.
Your actions do not complement the role, duties and responsibilities that you assigned and amount to negligence, careless and improper performance of work which was your duty to perform under your contract. In light of the aforementioned, you are hereby given a chance by giving reasonable and acceptable reason[s] to show cause as to why disciplinary action should not be taken against you….”
59. The Claimant was summarily dismissed via a letter dated 22nd April 2021, as paraphrased;
“Reference is made to the show cause letter dated 7th April 2021 and issued to you on 8th April 2021, your response dated 8th April 2021 and the subsequent disciplinary hearing held on 16th April 2021. From the show cause response and disciplinary hearing, it was noted that you failed to send samples as required to facilitate the application to FDA, Ghana. This caused a delay in business turnaround and resulted in material loss of about KShs. 6M in revenue.
The management has considered your response and submissions in the hearing and found no justification for your actions. Your action amounts to negligence, carelessness and improper performance of work which was your duty to perform under your contract. Therefore, the management has decided to summarily dismiss you on grounds of gross misconduct as per Employment Act ,2007, section 44[4][c] with effect from 23rd April 2021 ….”
60. A valid reason for the termination of an employee’s employment or summary dismissal must be one that is logical, sound and supported by evidence or facts. One that should to a reasonable man be acceptable and believable.
61. The Court got the Claimant as asserting throughout that the reason[s] for the summary dismissal against him was not sound and supported by evidence or facts.
62. The show cause letter laid out an accusation against the Claimant inter alia, that he failed to dispatch product samples as required to facilitate an application to the FDA, Ghana. This accusation was the reason for the summary dismissal against him. What makes this reason illogical, unsound and unsupported by facts is the fact that the documentary evidence by the Claimant, and as admitted by the Respondent’s witness, reveals that the samples were indeed sent on 17th March 2021. The same day, the analysis report was received. By email [produced as evidence by the Respondent], Mr. Himanashu Joshi wrote, “Hi Team. Thanks a million, to turnaround the sample request so fast! Greatly appreciated.
63. In his evidence under cross-examination, the Respondent's witness testified that the Respondent didn’t have a standard operating procedure for introducing products into new markets, as each country has unique processes. In my view, they needed to demonstrate that from the outset, the Claimant knew that the Ghanaian processes required product samples.
64. In a bid to discount the Claimant’s assertion that the requirement was not brought to his attention by Mr. Hamanshu or any other person, the Respondent relied on an email dated 8th February 2021 by Ms. Lorna [ the Legal Officer], which was copied to him. It is essential to point out that on 5th February 2021, Mr. Hamanshu wrote to Lorna, thus;
“Good evening. I trust you are well. Attached please kindly find the first order from Ghana from the new Distributor. Kindly please advise when we will be able to submit the documents to Forwin for onward submission to the FDA for approval, and then we can get the attached order shipped.”
It is imperative to point out that Mr. Hamanshu did not ask for or mention physical samples.
65. Following the email, on 8th February 2021, Ms Lorna wrote an email to the Claimant and copied the same to others, thus,
“Jayson, how far are you on this? This is extremely urgent.” I am of the clear view that this inquiry was about the position of the documents Mr. Hamanshu had asked about in his email of 5th February 2021. It had nothing to do with the physical samples. Counsel for the Respondent’s suggestion that it was, in my opinion, is misplaced.
66. Promptly, in his response email at 12:16 PM, the Claimant stated that he had just learnt of it and would check what was expected of them. In a subsequent email at 12:16 PM, he wrote to Lorna, indicating that her email was missing attachments. The attachments were resent in a separate email. There was no evidence that the attachments were sent or that any of them referred to the samples being sent to Ghana.
67. I have carefully considered the email correspondences among the various officers of the Respondent entity from 8th February 2021 to 16th March 2021. None referred to the dispatch of samples to Ghana or requested the Claimant to send them. They focused solely on the requisite documents, laboratory analyses, and reports. It is clear to me that the issue of dispatching the samples arose on 17th March 2021, and as noted by Mr. Hamanshu in his email of 18th March 2021, the samples were dispatched expeditiously.
68. Counsel for the Respondent submitted that at the disciplinary hearing, the Claimant stated there had been a miscommunication regarding the necessity of dispatching the samples to Ghana. He admitted the infraction and incriminated himself. Considering the circumstances of the matter, I hold a different view. This statement reflected the proper position.
69. To make the alleged infraction against the Claimant appear severe, the Respondent asserted without evidence that the Claimant’s actions caused it to suffer a loss of KShs. 6,000,000. This drives the court to perceive bad faith and a lack of candour on the part of the Respondent during the material period and trial.
70. For the reasons stated above, I remain unconvinced that the Claimant failed to send the samples to Ghana, that the samples were sent without promptness, or that there was any negligence or carelessness involved. No reasonable employer could summarily dismiss an employee under the circumstances and for the reasons presented by the Respondent in this matter. The summary dismissal against the Claimant was substantively unfair.
71. Section 49[1][c] of the Employment Act, 2007, bestows upon the Court the authority to grant compensatory relief in favour of an employee who has successfully challenged the termination of his employment or summary dismissal from employment. However, it is pertinent to point out that the authority is exercised discretionarily depending on the circumstances of each case.
72. I have thoroughly considered the circumstances surrounding the Claimant’s dismissal from employment, including that it was without substantive justification and good faith, the length of service, the period remaining until the expiration of his contract, and his expressed expectation that it would run its full course. I hold that he is entitled to the compensatory award, amounting to six months' gross salary, Kshs. 1,500,000.
73. The Claimant’s Contract was terminable by one month’s notice. Undeniably, the same was not issued. Having found that the summary dismissal was unfair, if the court fails to award notice pay in favour of the Claimant, it will be tantamount to rewarding the Respondent for its wrongs. I award him one month’s salary in lieu of notice.
74. The Respondent admitted that the Claimant is entitled to pay for the one day worked in April 2021. The relief is granted.
75. Having granted the Claimant the compensatory relief contemplated under section 49[1][c] of the Employment Act, a further salary award for the remaining contract period could amount to overcompensation. Therefore, I decline the relief under this head.
76. 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 substantively unfair.
ii) Compensation pursuant to the provisions of section 49[1][c] of the Employment Act, six months’ gross salary, Kshs. 1,500,000.
iii) One month’s salary in lieu of notice, Kshs. 250,000.
iv) Salary for the one day worked in April 2021, Kshs. 9,615.38.
v) Costs of the suit.
vi) Interest on the sum awarded above, at court rates from the date of this Judgment till full payment.
Read, Signed and Delivered this 9th day of June 2025.