Background
1. Contending that at all material times he was an employee of the Respondent, whose employment was terminated unlawfully and unfairly, the Claimant sued the Respondent herein, seeking the following reliefs:
a) A Declaration that the Respondent unlawfully and unfairly terminated the Claimant from its employment;
b) The Honourable Court be pleased to review the decision to dismiss the Claimant from the employment of the Respondent and reinstate him to his employment;
c) The Respondent does issue the Claimant with a Certificate of Service;
d) There be a declaration that the Claimant was entitled to financial compensation for service in the office of Sales Manager and an appropriate sum be awarded for the period served;
e) There be a Declaration that the Claimant has the right to purchase Motor Vehicle Registration No. KCG 166V at 5 % of the original cost and/or an award of 95% of the original cost;
f) A declaration that the Claimant has the right to purchase the Respondent's iPhone 7 at 5% of the purchase price and/or an award of 95% of the purchase price;
g) Damages for discrimination;
h) Damages of Kshs.3,295,731.36/= being 12 months' salary for the unfair &unlawful termination;
i)Kshs.137.322.14/= being 15 days' salary for the month of January 2021;
j) Kshs.274,644.28/= being one (1) month's salary in lieu of Notice;
k) Kshs.192,251/= being compensation for leave days (21 days) for the year 2021;
l) Costs of this suit; and
m)Interest on (d) to (l) above till payment in full.
2. The Respondent opposed the Claimant’s claim, asserting that the Claimant was lawfully summarily dismissed due to gross misconduct. As such, the Claimant is not entitled to the reliefs sought.
3. At the hearing, the parties adopted their witness statements filed herein as their evidence in chief and produced the documents filed under their respective lists of documents as their documentary evidence.
Claimant’s case
4. The Claimant, Robert Kennedy Osoro, states that he was employed by the Respondent on 24th July 2015 as a Medical Representative, earning a gross monthly salary of Kshs. 116,037.50, which was subsequently increased to Kshs. 248,744.85.
5. Owing to his exemplary performance, he was promoted in May 2019 to the position of Sales Manager (Assignment). However, the promotion entailed increased managerial responsibilities but no corresponding financial benefits or training to prepare him for the new role.
6. During his employment, he was issued with company assets, including a motor vehicle, phone, laptop, and corporate card, and was entitled under company policies to purchase the motor vehicle and mobile phone at 5% of their value after a four-year and two -year period, respectively.
7. He further stated that until January 2021, he had served diligently without any prior warning, complaint, or disciplinary record. On 15th January 2021, the Respondent abruptly, unlawfully and unfairly terminated his employment on a flimsy excuse that he had illegally approved certain expenses incurred by a staff member on the Respondent’s citi- card for payment, and late expense reports and incidental personal expenses incurred on a corporate card, contrary to the Travel, Entertainment and Other Business Expenses (PT & E) Policy.
8. He stated that in his capacity as a Sales Manager, he adhered to the terms of his employment, the provisions of the policy mentioned above, the Respondent’s custom, practice, and other policies and procedures.
9. He further asserted that Clause 9 of the above-stated policy bestowed upon him specific duties and responsibilities, in his capacity as a Sales Manager [Assignment], including reviewing all expense reports for compliance with the policy; approving expense reports in a timely manner; and delegating approval authority when going on leave.
10. The policy allowed him to approve incidental personal expenses incurred on the corporate card on condition that the staff member involved had made prompt repayment, provided a reasonable explanation and proof of payment. On approval of the late expenses, he had the discretion to listen and consider the explanation offered by the staff member.
11. He reviewed and approved all the expense reports submitted according to the provisions of the policy. In cases of late submissions and incidental personal expenses, he considered proof of prompt repayment, the explanation thereto, and even added comments at the expense entry level to explain why each expense was approved. No complaint was ever raised, and the corporate card issuer had never rejected approved expenses or sought to recover funds in respect of the expenses he approved.
12. He further asserted that the charges levelled against him were illegitimate and unfair, especially considering that the offences he was accused of were not offences under the Respondent’s policy, the allegations were not supported by evidence, and the Respondent did not suffer any loss out of the alleged irregular conduct. The Respondent’s conduct was unfair and unreasonable in the circumstances.
13. Sometime in November 2020, he received a call from the Country Manager, who questioned why he had approved Ekidor Ateyo Lokoro’s expenses, to which he responded that Mr Lokorio had attached evidence of payments and an explanation, as was the norm. The Manager threatened him, telling him that he was jeopardising his job, and demanded that Lokorio’s expense reports be submitted to the Human Resources Department for a disciplinary committee to be set up.
14. Through an email, he was invited by the Respondent to a virtual disciplinary hearing slated for 4th December 2020, over allegations of approving expenses belonging to Ekidor Ateyo Lokorio. All along, he believed Lokorio was under investigation, not him.
15. During the hearing, he satisfactorily answered the questions posed to him. He informed the disciplinary panel that he approved all the expenses in accordance with policy and the Respondent’s norms and practices. He further informed the panel that the staff member had attached an explanation/memo and evidence regarding the payments for the late expenses, and that he found nothing untoward in approving the expenses.
16. He asserted that the Respondent did not disapprove his responses, nor did it dispute the payments, nor did it prove any loss that it had incurred out of the alleged approval. They only insisted that it was an offence to approve incidental personal expenses incurred on the corporate card, and to approve submissions, regardless of evidence of payments on record and an explanation thereof. The Disciplinary Panel asked him to apologise.
17. He further stated that, in January 2021, the Respondent sent him an email invitation to receive the verdict of the disciplinary hearing, virtually on 14th January 2021. On that day, the Respondent informed him that it had decided to terminate his employment. However, in an attempt to trick him, they asked him to resign immediately so that he could obtain a good reference letter, or risk termination by 5:00 p.m. that day. He did not fall for the trick. Consequently, the Respondent terminated his employment via a letter dated 14th January 2021, effective 15th January 2021. It paid him his salary for the 15 days worked in January 2021.
18. The Respondent disconnected him from the system immediately and asked him to hand over all its properties in his possession.
19. The procedure followed to terminate his employment was contrary to the Respondent’s own Disciplinary code. The Code provides for levels of disciplinary action. counselling, verbal warning, [or counselling]; a written warning [ warning/final written]; or disciplinary enquiry.
20. Prior to the disciplinary hearing, he had never been issued a warning or subjected to the measures set out under the Respondent’s Disciplinary Code under Clause 10 of the policy.
21. Contrary to the tenets of procedural fairness, the Respondent did not particularise the charges against him. This denied him an opportunity to adequately state his case. He was not at any time served with a show-cause letter setting out the charges against him and inviting him to show cause prior to the disciplinary hearing. Further, the Respondent did not give him a chance to attend the hearing with a representative of his choice.
22. The Claimant further stated that during the hearing, the Panel threw questions at him, but refused to respond to clarifications.
23. He was not given a chance to appeal against the decision of the Panel.
24. Cross-examined by Counsel for the Respondent, the Claimant testified that the notification for the disciplinary hearing was sent on 4th December 2020. The invitation was sent by email on 2nd December 2020. Due to the COVID-19 pandemic, the Respondent was conducting its meetings virtually. However, the meeting didn’t take place because some panel members wouldn't be present.
25. He further testified that he was entitled to purchase the company motor vehicle he was using at 5% of its value. Clause 3 of the Company Car Policy sets out the eligibility criteria. Upon termination of an employee’s employment, the car was to be returned to the Respondent, as the employee loses the right to purchase the vehicle. He was therefore not entitled to purchase the same.
26. Clause 3.4.2 of the policy provided for the purchase of the mobile device. The purchase would be upon request and approval by the existing employee, who had to request that the purchase be allowed. He didn’t make any request. There was no approval.
27. The Respondent had the Travel Entertainment and Other Related Expenses policy. The policy provided for the corporate card to be used for business expenses. However, it also allowed personal expenses to be charged to the personal charge.
28. He further stated that the Manager was required to submit expense reports timeously, in any event, not later than 30 days. The expenses were required to be supported by adequate documentation.
29. At the hearing, he confirmed that Mr Lokorio had not provided any receipts to prove the expense. He gave him a list of expenses, which he approved. He admitted he had made a mistake.
30. The charges levelled against him were too general.
31. In his evidence in re-examination, the Claimant stated that the Respondent’s Personal Travel and Expense Policy- Clause 9, provided for non-reimbursable expenses. Lokorio did not submit any receipts for reimbursement. He had made a personal reimbursement. He approved a personal non-reimbursable expense. The Claimant did not approve any reimbursable expenses.
32. He reiterated that, under clause 3 of the policy, expenditure on the corporate card for incidental personal expenses was permissible. The rider was that such personal expenses were not reimbursable by the company and were to be paid by the colleague. Ateyo did not seek reimbursement. He paid for the expense.
33. Under clause 5.2, if the charges were overdue, the colleague was liable to pay. There was no obligation to attach receipts for non-reimbursable expenses. Accordingly, he did not commit any infraction when he approved a non-reimbursable expense.
34. A manager, Sophia, who had approved expenses as he did, was not dismissed.
Respondent’s case
35. The Respondent called one witness, Olubukola Oparande, its Human Resources Manager, to testify on its behalf. The witness stated that the Claimant was initially employed as a Medical Representative with Laborex Kenya Limited and subsequently seconded to Pfizer Laboratories (Pty) Ltd as a Sales Manager.
36. Upon secondment, the Respondent fully explained to him the duties and expectations required of him in his new role. He was also fully trained and provided with an enabling environment to help him adapt to his new role.
37. The Claimant was tasked to ensure that his subordinates used the Company Corporate Card to settle business, travel, and entertainment expenses while on official duties in strict conformity with the Respondent’s Standard Operating Procedure and Policy for Travel, Entertainment and Other Business-Related Expenses (PT&E Policy) and to ensure that his subordinates submitted their expense reports timeously.
38. Clause 3 of the PT & E policy provides that incidental personal expenses are permissible on the corporate card only when it is impractical to pay for them separately, and such personal expenses will not be reimbursed by the Company but shall be payable by the employee. Its further states that such personal expenses are incurred in the course of an employee engaging in Company business.
39. Clause 5.2 of the PT&E Policy placed a mandatory obligation on all the Respondent’s employees, including the Claimant, to submit expense claims within 30 days of incurring an expense.
40. Clause 5.3 provided that all expenses submitted for reimbursement must have adequate and relevant support in the form of receipts. The Clause further provided that approvers must review the documentation submitted with expenses to ensure it provides adequate and valid support for the expenses.
41. It was further stated that Clause 5.4 of the PT & E Policy makes a provision for reimbursement of incidental personal expenses. However, these incidental personal expenses are those expenses incurred in the course of official business.
42. Clause 9 of the policy placed an obligation to ensure that all expenses submitted for reimbursement were expenses incurred in the course of legitimate business expenses and that all expenses incurred were in relation to the terms set out under the policy. It also imposes a mandatory obligation on all employees to attach receipts to their expense reports and contemplates that such reports relate to expenses incurred on official business.
43. The witness stated that in November 2020, the Claimant was identified as among 5 employees who had breached the PT&E Policy by [a] belatedly approving an expense incurred by his direct subordinate Ateyo Lokorio on the Company Corporate Card and [b] approving a personal expense incurred on the card by Mr Lokorio.
44. The witness further stated that, consequently, the Respondent made a decision to institute disciplinary proceedings against the Claimant as provided under Clause 10 of the PT&E Policy, which expressly provided for the consequences of non-compliance with the policy, inter alia, subjecting the approving manager to disciplinary action if they have not appropriately exercised their reviewing responsibilities.
45. By sanctioning Mr Lukorito’s irregular usage of the Company Corporate Card, the Claimant’s actions constituted an abuse of the Respondent’s property, a misconduct offence under the Disciplinary Code.
46. The Respondent issued the Claimant a Notice to Show Cause by email on 2nd December 2020, inviting him to a virtual disciplinary hearing scheduled for 4th December 2020. The show-cause email cited two disciplinary offences as the basis for the intended hearing: failing to report his team member's non-compliance with the PT & E Policy and approving it on the system.
47. However, the hearing did not take place on 4th December 2020, but instead was postponed to 7th December 2020, of which the Claimant was duly notified.
48. At the hearing, the Claimant admitted the charges, including approving personal expenses, failing to report violations, and breaching the PT&E Policy on multiple occasions. The Committee found the Claimant’s actions constituted gross misconduct.
49. At the disciplinary hearing, the Claimant was duly informed of the charges against him and further given an opportunity to make his representations in response to the charges. He irrevocably admitted to the charges levelled against him in failing to comply with the policy.
50. At no point in time prior to or during the disciplinary proceedings did the Claimant express any reservation pertaining to any elements touching on the procedure adopted by the Respondent or indicate that he needed more time to prepare his defence.
51. The witness stated that upon considering all the material on record, including the responses and position conveyed at the hearing, the Committee made a decision to summarily dismiss the Claimant from employment on account of the proven acts of gross misconduct. He was issued a termination letter effective 15th January 2021.
52. Upon terminating his employment, the Respondent settled the Claimant’s salary for the days worked in January 2021, payment in lieu of leave days, and one month’s salary in lieu of notice.
53. Whereas the Claimant may have considered the explanations rendered by Lokorito, and subsequently proceeded to approve the expense report, such approval as admitted to and as proven at the disciplinary hearing, was irregular and in gross violation of the policy. The expenses were not allowable under the policy, and, as such, the claimant was not justified in approving them, as they were not incurred in the course of official company business.
54. The Respondent further states that the Claimant was not entitled to purchase the company vehicle or mobile device provided during his employment, as these benefits do not extend to employees dismissed for cause, and that all company property was to be returned.
55. Cross-examined by Counsel for the Claimant, the witness stated that the Claimant was dismissed for approving expenses that were not in line with the PT&E policy. Clause 7 of the policy set out reimbursable expenses, and clause 8 set out non-reimbursable expenses. Non-reimbursable expenses are those that a colleague/employee had to bear.
56. Incidental personal expenses are allowed under the policy. The Company will, however, not pay for them. The colleague must pay for them.
57. Upon further cross-examination, the witness stated that, in accordance with the stipulations in clause 9 of the policy, there is no requirement to attach receipts for personal expenses. The attachment was exempted. Late payments for those personal expenses were an infraction.
58. There was a restructuring of the Respondent in 2020. Two Divisions, i.e. innovative medicine and essential medicine, were affected. No employee was declared redundant. Mark Okeno, who was a medical representative, left and pursued his redundancy package. Bill Sawo and Anne Mureiithi also left but rejoined the Respondent.
59. Zablon Orina was at the material time under the supervision of Sophia Mwavita. Just like the Claimant herein, she had the same responsibility for approvals. She was not dismissed because the investigations found her not culpable.
60. She further testified that the Disciplinary Code provides for a disciplinary process. The Claimant was not given any warning. Whether there was to be a warning or not depended on the particular circumstances of a case. He had worked for 7 years without a disciplinary issue. He was taken directly to a disciplinary hearing.
61. He was issued with a notice for a disciplinary hearing. The Code provides a specific template for the notice. The notice issued was not in the form of the template, but it mirrored what the template contemplates. However, the notice issued did not include the details as contained in the template.
62. The misconduct he was charged with fell under abuse of company property, as provided under the code.
Analysis and determination
63. I have carefully considered the pleadings by the parties, their evidence, and submissions of their respective Counsel, and the following two principal issues emerge for determination;
1) Whether the summary dismissal was against the Claimant was fair.
2) Whether the Claimant is entitled to the reliefs sought.
Whether the summary dismissal against the Claimant was unfair.
64. It bears repeating that the enactment of the Employment Act, which set in with unfair dismissal stipulations, represents a major incursion into the common law, limiting the employer’s otherwise open -ended power to bring the contract of employment to an end without the need for substantive justification, and imposing general standards of procedural fairness upon the process of dismissal.
65. Section 45 of the Employment Act 2007 provides that:
[1]. No employer shall terminate the employment of an employee unfairly.
[2]. A termination of employment by an employer fails to prove-
a) that the reason for the termination is
b) that the reason for the termination is a fair reason-
i. related to the employee’s conduct, capacity, or compatibility;
ii. based on the operational requirements of the employer; and,
c] that the employment was terminated in accordance with fair procedure.
66. Inarguably, tasked to consider whether there was fairness in the termination of any employee’s employment, the Court has to consider the presence or otherwise of these two statutory aspects, procedural and substantive justification/ fairness. As regards them, no doubt, section 45[2] is couched in a disjunctive manner, and as such, absence of both or any of them in the termination shall render the termination unfair.
67. The duty lies with the employer to prove both substantive justification and procedural fairness for the Court to hold that the termination was fair. In Pius Machafu Isindu vs Lavington Security Guards Limited [2017] eKLR, the Court of Appeal elaborated, thus;
“There can be no doubt that the Act, which was enacted in 2007, places heavy obligations on employers in matters summary dismissal for breach of employment contract and unfair termination involving breach of statutory law. The employer must prove the reasons for termination/dismissal [section 43]; prove the reasons are valid and fair [section 45]; prove that the grounds are justified [section 47[5], amongst other provisions. A mandatory and elaborate procedure is then set out under section 41, requiring notification and a hearing before termination. …………….’’
68. Section 41 of the Employment Act stipulates a mandatory procedure that any employer considering termination of an employee’s employment must follow. This process comprises three components: first, the employer shall notify the affected employee of their intention and the grounds for such an intention; second, the employer shall provide the employee with an adequate opportunity to prepare and present their case regarding the grounds; and third, the employer must consider any representations by the employer, prior to making a final decision on the matter. See Postal Corporation of Kenya v Andrew K. [2019] KECA 489[KLR.
69. However, I must point out that procedural fairness shouldn’t only be looked at from the limited scope of Section 41. There must be a thorough review of all relevant events concerning the termination of an employee’s employment or the summary dismissal of an employee, and these events must be assessed against the employer’s Human Resource Policy, the principles of fair hearing, fair administrative action, and the tenets of natural justice.
70. In line with the notification component contemplated under Section 41 of the Employment Act, the constitutional right to a fair hearing guaranteed to every person under Article 50 of the Constitution, the principles of fair administrative action espoused under Article 47 of the Constitution, and the Fair Administrative Action Act, the written notification of the grounds for an employer’s intention to commence disciplinary action must be unambiguous or so generalised that it enables the affected employee to prepare adequately for his defence.
71. The Claimant complained that the Respondent did not, with particularity, set out the charges against him, prior to the disciplinary hearing, to enable him prepare for his defence. There is no dispute that via an email dated 2nd December 2020, the Respondent invited the Claimant to a disciplinary hearing that was slated for 4th December 2020, the invitation read;
“Further to the expense submitted by your team member, Lokorio Ateyo, on the Pfizer Travel & Expense System.
There is an allegation that you failed to report this non-compliance to the PT & E policy by your team member, and that you approved the same on the system.
In view of this, you are hereby invited to attend a disciplinary hearing as scheduled below to explain yourself…………….”
72. Counsel for the Respondent submitted that the email sufficiently informed the Claimant of the charges against him. His submissions do not address the lack of particularisation of the charges as set out. Looking at the email, the first question that comes to mind is this: what were these expenses, given the various types of allowable and non-allowable expenses as they emerged from the parties' evidence herein, and what was the non-compliance, when was the approval given? In the absence of the details, the notification, in my view, and I agree with the Claimant, was too general and unambiguous. One that would not aid the Claimant in adequately preparing for and presenting his defence.
73. This Court has not lost sight of the fact that the evidence of the Respondent’s witness, particularly under paragraph 24 of her witness statement, brings this out, namely that the questioning went beyond one incident/expense, as contemplated in the invitation email.
74. The Claimant’s Counsel submitted that the notice given by the Respondent to the Claimant was inadequate to enable him to prepare his defence. Undoubtedly, the Claimant was notified of a disciplinary hearing scheduled for 4th December 2020 on 2nd December 2020. I agree that this was a one day’s notice and insufficient for a fair hearing.
75. In Patrick Abuya v Institute of Certified Public Accountants of Kenya [ ICPAK] & another [2015] KEELRC 154[KLR, cited by Counsel for the Claimant, the Court aptly captured it;
“ Procedural fairness not only requires an advance and reasonable notice of the steps to be undertaken, but also time for an employee to prepare psychologically, as such an employer is always under the threat of losing a livelihood.
In my view, the Respondent’s action of writing an invitation letter on 3rd March inviting the Claimant to a hearing on the morning of 4th March 2014, when, according to it, he had absconded and therefore his whereabouts were not known, was ill-motivated and was not in consonance with the statutory requirements of procedural fairness.’’
76. I note that the Respondent’s witness asserted that the Claimant didn’t make any complaint either prior to or during the hearing that the Respondent was not complying with the dictates of procedural fairness. In my view, it matters whether he raised a concern; the Respondent had a statutory and constitutional duty to adhere to the procedural fairness dictates.
77. In the Chief Registrar of the Judiciary & 2 others v LMN [2025] KESC 53[KLR] , the Supreme Court of Kenya stated;
“What is not in dispute is that the respondent was given only a single day’s notice to appear before the disciplinary hearing. The notice was made by a telephone call. While the Appellants have advanced a rather alluring argument that the respondent did not expressly object to the short notice given, this contention cannot override the clear dictates of the law………………”
78. Cross-examined by Counsel for the Claimant, the Respondent’s witness expressly admitted that, although the Disciplinary Code provided a detailed template for the disciplinary notice, the notice she issued was not in that format. I have considered the form and take a firm view that it was purposively designed to provide sufficient details to the affected employee regarding the charge[s] being preferred against them. Had the format been used, the notification could have been more detailed, noting that the form includes a field for the “required Standard” that was breached. This non-compliance cannot be wished away.
79. In the upshot, I find that the summary dismissal against the Claimant was procedurally unfair. I now turn to consider the substantive justification aspect of the summary dismissal.
80. Under section 43 of the Employment Act,2007, in a dispute regarding termination of an employee’s employment, the employer bears a legal burden to prove the reason for the termination; in default, the termination shall be deemed unfair by dint of Section 45 of the Employment Act.
81. It is imperative to point out that Section 45[2][b][i] &[ii] imposes a further legal burden on the employer to prove that the reason[s] were valid and fair. With a possibility, therefore, that the employer can prove the reason for termination as required under Section 43, but fail to discharge the one under Section 45, rendering the termination in issue unfair.
82. Keenly considering the Claimant’s case as presented in his pleadings and evidence, on the substantive fairness aspect, it revolves around the Respondent’s failure to discharge its burden under Section 45 of the Employment Act. He asserts that the reason[s] for the termination of his employment were neither valid nor fair.
83. The Employment Act does not define the phrase valid and fair reason. Valid reason in my view would be a genuine, existent and supported by evidence, and must relate to conduct, capacity, or operational requirements.
84. Fairness imports a standard of reasonableness and proportionality. The employer must demonstrate that, in the circumstances of the case, the dismissal was a justified response to the employee’s conduct or to the operational exigencies relied upon. The sanction imposed must be proportionate to the gravity of the misconduct complained of.
85. It is essential to highlight that Section 44[3] of the Employment Act stipulates the circumstances under which summary dismissal by an employer may be justified. Additionally, Section 44[4] delineates acts of commission or omission by an employee that constitute gross misconduct warranting summary dismissal. In my considered opinion, if the reason for dismissal does not fall within the enumerated reasons or possess a comparable gravity as those listed in the section, and if it does not fundamentally affect the employment relationship, then a summary dismissal against an employee cannot be deemed fair and valid.
86. There is no doubt that the Claimant’s employment was brought to an end at the initiative of the Respondent through a termination letter dated 14th January 2021. The letter read in part;
“This termination is premised on your non-compliance with Pfizer’s travel and expense policy in approving
i. Use the company Citi card to pay for your personal expenses.
ii. Expenses reports submitted late.
87. The Claimant's counsel argued that these charges did not constitute offences under the Respondent’s PT & E policy. Further, the charges were false and lacked a factual basis. He contended that the Claimant did not use the card for personal purposes. Based on the content of the disciplinary hearing invitation email dated 2nd December 2020, and the evidence presented in court by both parties, I concur with the Claimant's counsel that dismissing the Claimant for the first reason mentioned in the termination letter was factually incorrect. The accusation was not that he authorised the use of the card for personal expenses. Instead, the allegation was that he approved his team member, Mr Lokorio, using the card for personal expenses.
88. Additionally, this Court observes that the second reason for dismissal was not listed among the two charges outlined in the disciplinary hearing invitation email mentioned earlier, to which he was asked to respond. Therefore, it is evident that the two grounds for his summary dismissal were fundamentally different from those he was called to address before the Disciplinary Committee.
89. It bears repeating that an employee cannot fairly or lawfully be sanctioned for any allegation, charge, or ground of misconduct that was not set out in the notice to show cause and or document inviting him to a disciplinary hearing; It is not only against the principles of procedural fairness and natural justice but also undermines the fairness of the reasons for terminating an employee’s employment.
90. I have carefully considered the submissions by Counsel for the Respondent and note that they do not address this issue.
91. Having said this, and without prejudice to the foregoing [para. 87 and 88], I now turn to consider whether he approved the use of a Citi card by Mr Lokorio for personal expenses, whether he approved expense reports submitted late, and, if so, whether he committed an infraction under the PT&E policy, thereby rendering him subject to disciplinary action and sanctions.
92. It is important to note that the Respondent’s policy is comprehensive regarding the various expenses charged to the card, including the appropriate circumstances for expenditure, the implications of using the card for these expenses, reporting procedures for card usage, and the responsibilities of approvers in the process.
93. For clarity of record and focus, this Court shall focus on personal expenses only, as they were the subject matter of the disciplinary proceedings and the resultant summary dismissal of the Claimant from employment.
94. Clause 3 of the policy provides for the incidental personal expenses, thus;
“Incidental personal expenses are permissible on the corporate card only when it is impractical to pay for them separately [e.g. a personal charge included on a hotel bill when travelling on Company business]; however, such personal expenses will not be reimbursable by the Company and shall be payable by the Colleague. Pfizer reserves the right to request information about any expenses incurred on a Corporate card.
Incidental personal expenses, delinquency fees and cash advances are not reimbursable by the Company, and must pay American Express for such charges.”
95. Undoubtedly, the initial allegation outlined in the invitation to attend a disciplinary hearing email was that the Claimant authorised the use of the card for incidental personal expenses in favour of Mr Lokorio. The allegation was set out in a manner that implied such incidental personal expenses were not allowed; however, clause 3 above explicitly permits them.
96. Nevertheless, a significant question remains: did the Claimant have any role in approving the use of the Card for incidental personal expenses by his team members? I have thoroughly reviewed the PT&E policy in its entirety, the specific provisions relating to incidental personal expenses incurred by colleagues using the card, the pleadings submitted by the Respondent, the witness statement provided by the Respondent’s witness, the witness’s testimony in chief, and the responsibilities of approvers as delineated in the policy. Based on this comprehensive review, I have formed a clear view that none of these elements indicates that the Claimant bore any obligation to approve incidental personal expenses on the card by colleagues. Vitally, in her evidence under cross-examination, the Respondent’s witness admitted that there was no provision for approval of Incidental personal expenses on the part of the Claimant.
97. This Court has not lost sight of the fact that, in her oral testimony in court, the Respondent’s witness stated that, for incidental personal expenses, the Colleagues made their reports directly to the Concur System. There was no provision of the PT & E policy cited by the Respondent in its pleadings, evidenced by its witness or its Counsel’s submissions, that the Claimant was charged with the responsibility of blocking such reports, made for the reason that they were being made belatedly or for any other reason at all.
98. In the absence of any responsibilities expressly or impliedly set out in the employee’s contract of employment, the employer’s Human Resources policies, any other applicable workplace policies, or statute, no breach can be alleged, and accordingly, no disciplinary sanction may lawfully be imposed.
99. While I concur with the submission of the Respondent’s Counsel that, under the policy, an approver may be subjected to disciplinary proceedings for issues related to violations of the card policy, in this particular case, it is evident that no evidence has been provided that could have justified the initiation of disciplinary action against the Claimant.
100. In conclusion, the summary dismissal against the Claimant was without a valid and fair reason. The dismissal was substantively unfair.
101. It is imperative to note that I have acknowledged the Respondent’s assertion that the Claimant made admissions during the disciplinary hearing. In my opinion, if the responses provided in the Minutes are to be classified as admissions, it is critically important to emphasize that such admissions could not pertain to the two infractions, which I have addressed hereinabove.
102. I thank the parties’ counsel for their industrious, lengthy submissions. They were helpful. However, it would be remiss of this Court not to state, without reservation, that they largely addressed matters of policy, not directly in issue in the circumstances of the Claimant’s claim herein.
Whether the Claimant is entitled to the reliefs sought
103. The Claimant sought an order for reinstatement. This relief is unavailable in the circumstances of this case by dint of Section 12(3) of the Employment and Labour Relations Court Act, which prohibits the grant of the remedy more than three years after the termination of an employee’s employment. No doubt, it is more than three years since the Claimant was summarily dismissed.
104. The Claimant’s employment contract was terminable by one month’s notice, as stipulated in his contract and Section 35 of the Employment Act. He was dismissed summarily without notice. Having determined that the summary dismissal was unfair, I conclude that he is entitled to one month’s salary in lieu of notice in accordance with the provisions of Section 36 of the Act.
105. The Claimant further sought a declaration that he is entitled to financial compensation for his service as Sales Manager, and that an appropriate sum be awarded for the period served. This relief is not one that this Court can grant. Throughout the relevant period, the Claimant served under a mutually executed employment contract. He has not provided sufficient evidence to justify the granting of the relief. In my opinion, granting such relief would constitute a rewriting of the parties' contractual agreement.
106. He further sought a declaration that, under the contract, he had the right to purchase Motor Vehicle Registration No. KCG 166V at 5% of the original cost and/or an award of 95% of the original cost. This Court has not lost sight of his evidence under cross-examination, where he admitted that, under the Respondent’s car policy, the benefit was not available to dismissed employees and that, in any event, he didn’t apply for it. The relief is not to be granted.
107. He asserted his entitlement to purchase the Respondent's iPhone 7, which had been allocated to him during his service, at 5% of the purchase price, or alternatively to receive an award of 95% of the purchase price. During his testimony, he acknowledged that he was ineligible to purchase the device, as he had neither applied for it nor obtained approval from the Respondent. Both application and approval were essential prerequisites.
108. The Claimant alleged that he was discriminated against and sought general damages for discrimination. The Claimant’s pleadings were not unambiguous as to how the discrimination occurred, nor was his evidence. I note that the Claimant’s counsel has extensively submitted on the alleged discrimination, setting out matters that were not in evidence. Submissions cannot be a substitute for evidence. See Daniel Toroitch Arap Moi vs Mwangi Stephen Miriithi & Another [2014] eKLR.
109. Section 49[1][c] of the Employment Act, 2007, bestows on Courts the power to grant a compensatory award for unfair summary dismissal. However, it is important to note that the power is discretionary and exercised on a case-by-case basis.
110. I have carefully considered the fact that the Claimant was dismissed for non-existent infractions under the Respondent’s policy. Had it not been for the hurdle under Section 12[3] of the Employment and Labour Relations Court Act, I would have ordered reinstatement. I have also considered the Respondent’s admission that the Claimant had served it for more than six years without a disciplinary issue, and the length of the Claimant’s service. In light of these considerations, I hold that he is entitled to the relief to the extent of twelve months’ salary.
111. The Claimant sought salary for the 15 days worked in January 2021. I cannot grant this relief, as he admitted in his witness statement that he was paid.
112. In the upshot, Judgment is hereby entered for the Claimant for;
a) A declaration that the summary dismissal against him was unfair,
b) One month’s salary in lieu of notice, KShs. 274, 644.28.
c) Compensation pursuant to the provisions of Section 49[1][c] of the Employment Act, twelve months’ gross salary, KShs. 3,295, 731.36.
d) Interest on the awarded sum in [b] and [c] above at court rates from the date of this Judgment till full payment.
e) Costs of the suit.
Read Signed and Delivered this 19th Day of February 2026.