REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT
AT NAIROBI
CAUSE NO. E384 OF 2023
(Before Hon. Justice Dr. Jacob Gakeri)
ROSEBEL L. WACUKA KAROBIA………….…………….... CLAIMANT
VERSUS
SAMORA SIKALIEH……………………..…………….….1ST RESPONDENT
DON SMITH ……………………………………………..2ND RESPONDENT
ROBERT NJUGUNA………………………………..……3RD RESPONDENT
JUDGMENT
The claimant commenced to instant suit on 15th May 2023 vide a Memorandum of claim which was subsequently amended on 3rd May 2025. The claimant alleged that the Respondents had refused to pay for salary arrears.
The claimant was an employee of the Karen Langata District Association serving as its Office Administrator and Manager in 2015 at Kshs.162,071 and fuel allowance of Kshs.15,000.00.
That sometime in 2022 Nairobi HCCC No. E171 Samora M. Sikalieh, Chairman KLDA V Murtaza Mohammed Ali & 2 others led to the freezing of the bank account of the Association and were not lifted until February 2023 put the association was unable to pay staff salaried from October 2022.
That the Respondent commenced disciplinary proceedings against the claimant but neither observed due process.
The claimant prayed for:
(i) An order compelling Respondents jointly and severally to pay the claimant outstanding salary arrears since October 2022.
(ii) A Declaration that the claimant was still an employee of the Karen Langata District Association.
Respondents Case
The Respondent admitted that the claimant was the employee of the Association effective 21st May 2018 as an administrator in charge of all administrative roles and was given a laptop which contained crucial confidential and sensitive information of the Association and a mobile phone.
The respondent admitted that they sent the claimant on compulsory leave on 4th July 2022 pending investigations but no report was prepared or findings disclosed. That although the claimant returned the cellphone at the Respondent’s request, she declines to handover the laptop and a court of law held that she was not bound to.
The respondent averred that the Annual General meeting held on 7th April 2023 re-elected Mr. Samora Silalieh as chairperson of the Association and subsequently invited the claimant for a disciplinary hearing scheduled on 22nd March 2023 but she did not attend and her employment was terminated vide letter dated 14th April, 2023.
According to the respondent ELRC No. E562 of 2022 was still pending in court and the court had granted an order.
That the claimant was taken through a lawful disciplinary process, termination of employment was fair and the instant suit ought to be dismissed with costs.
During cross-examination the claimant admitted being placed on compulsory leave from 4th July, 2022 requested to return the respondents property and returned the cellphone while retaining the laptop because it retained private information of members entrusted to her.
The witness admitted having received a notice to show cause and respondent indicating that the 1st Respondent was not the chair person of the Association. It was her evidence that she served the respondents for 9 years.
The claimant admitted that her advocate responded to the demand to return the laptop stating that it would not be returned. The witness testified that she was not invited for a disciplinary hearing and did not attend any and only saw the letters when they were filed in court.
The witness admitted that she took a loan from the association but had repaid the same by 2021 but the payslip for August 2022 had a loan deduction of Kshs17,969.00 and admitted that the deductions were being made from her salary. The witness further confirmed that by the time she left there was a caretaker committee with the 1st Respondent as the chairperson.
On re-examination the claimant testified that she did not return the laptop because it contained private and personal details of members of the Association and previous committees had not requested for the laptop and the matter ended in court and the court ruled that the claimant had no obligation to return the laptop.
That neither the notice to show cause nor the termination letter made reference to an outstanding loan and the witness had no idea about the amount allegedly owed.
Mr. Samora Sikale, the 1st Respondent admitted tat he filed Nairobi ELRC 562 of 2022 against the claimant for the return of the laptop and the court ruled that the claimant was not obliged to return the laptop because it was unclear as to who in-charge of the association.
The witness could not recall the date of the ruling but had filed the pleadings without the rulings.
Counsel read out paragraph 1 of the ruling to court starting with the words.
“I rejected the applicants application seeking release of …”
The witness testified that he did not have the document and could not respond to the question but admitted that it was in 2022.
The witness admitted having written the letter dated 4th July 2022 on the compulsory leave pending investigations on alleged in subordination but no particular of the report were given to the claimant and there was no written report and the respondent did not formally contact the claimant on the investigation.
The witness testified that the claimant was invited for the disciplinary hearing via letter sent on email and WhatsUpp but had neither a copy of the email nor WhatsApp message and admitted that the letter had a postal address only.
The witness confirmed that a loan had been advanced to the claimant but the association had neither filed a counter-claim or set-off or prayed for the amount outstanding.
On re-examination, the witness testified that the claimant had not disputed receipt of the letter of invitation for the hearing or termination of employment.
That the outstanding loan was Kshs.190,000.00 and was being deducted from her salary.
Claimant’s submissions.
Analysis and determination
Evidence on record reveals that the claimant was employed by the Respondent Association vide letter dated 1st June 2018 at Kshs.137,000.00 per month which had resent to Kshs.162,071.00 by August, 2022. Her duties included managing the secretariat and office of the Association, supporting the KLDA Committee, administration of petty cash and other office expenses, supervising staff and managing the affair of members among others.
Overall, the claimant was in-charge of office administration and management and discharged her duties diligently until 2022, when the Association appear to have been experiencing leadership challenges and a caretaker committee was in charge.
It is common ground that the claimant was sent on administrative compulsory leave vide letter dated 4thJuly 2022 signed by the 1st Respondent pending a fact finding investigation and would be contacted after its completion and was required to return all the property to the Association and not permitted to visit the Association office without prior permission or represent the Association in any matter but was required to assist with any information that may be required occasionally.
Documentary evidence also revealed that the Associations Bank Account had been frozen for sometime and the claimant was not paid from October 2022 to February 2023, the sum of Kshs.623,505.00.
Records reveals that by an email dated 14th July 2023 the 1st Respondent notified the claimant to return the Associations property including data, had over responsibilities as well as perform certain tasks relating to WhatsApp groups and inform members about a planned forum for MCA candidates.
Strangely, neither of parties filed copies of the notice to show cause or the response by the claimant. It is therefore unclear what the claimant was accused of and how she responded.
Although the Acting Secretary Mr. Mburu Ngugi mentioned at the 83rd Annual General Meeting held on 7th April 2033, that the claimant had been dismissed from employ for subordination and had continued with the same even after dismissal, he did not explain what the claimant had done prior to the administrative compulsory leave on 4th July 2022.
While the claimant averred that the respondent Association terminated her employment unlawfully, the Respondent Association maintained that the dismissal was lawful as the law had been complied with.
It is trite law that for a termination of employment to pass muster, it must be proved that the employer had a reason(s) to terminate the employee’s employment and conducted the process fairly.
The provisions of section 41, 43,44, 45 and 47)5) of the employment Act prescribe the statutory framework and courts have enforced it religiously.
Put in the alternative, the employer must have had a substantive justification for the termination of employment or dismissal and the procedure must have been fair as exquisitely capture by Ndolo J (as she then was) in Walter Ogal Anuro v Teachers Service Commission (2013) eKLR a follows:
“However, for a termination to pass the fairness test, it must be shown that there was not only substantive justification for the termination but also procedural fairness.”
See also in this regard Naima Khamis v Oxford University Press (E.A) Ltd (2017) EKR concerning the reason for termination the provisions of section 43 of the Employment Act are unambiguous that the employer must prove the reason(s) for termination of the employee’s employment falling which the termination is deemed unfair and the reason(s) are matters the employer at the time genuinely believed to exist and which culminated in the termination of employment.
See in this regard Kenya Revenue Authority v Gitahi & 2 others (2019) eKLR.
In the instant case, and as adverted to elsewhere in this judgment neither the claimant nor the Respondent filed a copy of the notice to show cause or the response. However, the claimant admitted having received and responded to it a fact the respondent admitted and confirmed vide letter to the claimant dated 14th July 2022.
The termination letter dated 14th April 2023 stated that the claimant’s employment was terminated on account of insubordination and gross misconduct towards the employer.
It is noteworthy and RwI admitted on cross-examination that the claimant was sent on administrative leave for purposes of a fact-finding investigation which RwI confirmed that it took place but no report was ever written or the findings documented and the claimant was not informed of the outcome.
Similarly, RwI confirmed on cross-examination that he did not provide any particulars of the insubordination or misconduct were provide to the claimant formally.
Regrettably, the Respondent adduced no evidence to demonstrate the specific allegations made against the claimant. Neither the insubordination nor the gross misconduct alleged in the letter of termination of the claimant’s employment was explained or illustrated with the relevant particulars. How for instance was the claimant insubordinate to whom? What forms did the gross misconduct dint of take by section 44 of the Employment Act? without demonstrable evidence of the specific acts or omissions by the claimant coopted with the absence of it is clear that the respondent had sailed to prove that it had a reason (s) to terminate the claimant employment on 14th April 2023 as ordained by the provisions of section 43 of the employment.
It is also essential to mention that the court found that the claimant was not obligated to hand over the laptop to the chair of the Association’s committee. None of the parties availed a copy of the ruling. This also occurred after the administrative leave had taken effect.
The irresistible finding of the court’s that termination of the claimant’s employment on 14th April 2023 was unfair for want of substantive justification.
As regards procedural propriety, it is trite that while the provisions of section 45(2) (c) of the Employment Act provide that the termination of employment must be affected in accordance with a fair procedure the provisions of section 41 of the Act set out the procedural elements or prerequisites namely
(i) reason or reasons for which the termination of employment was being considered
(ii) explanation of the reasons in a language understood by the employee.
(iii) Entitlement of an employee to the presence of another employee or shop floor representative of his choice when the explanation of the grounds of termination is made.
(iv) Hearing and considering any representations made by the employee and any person chosen by the employee.
See in this regard Postal Corporation of Kenya v Tanui (2019) eKLR.
In the instant case the claimant admitted having received and responded to the notice to show cause, a response the respondent considered unsatisfactory. It is not in dispute that the claimant did not attend a disciplinary hearing prior to the dismissal from employment, a fact adverted to by the letter of termination of employment.
While the respondent’s witness testified that the claimant was invited vide letter dated 10th March 2023 and it was dispatched to her vide email and WhatsApp, the claimant maintained that she saw the letter after it was filed in court and never received it and RwI had not evidence to controvert the claimant’s evidence. A copy of the email or WhatsApp message would have established the fact of service effortlessly. The letter filed by the Respondent had neither an acknowledgement signature or the date it was dispatched via WhatsApp or email and to which cellphone number.
In sum, the respondent failed to prove service of the invitation letter or any effort made to contact the claimant for purposes of the hearing bearing in mind that she was still an administrative leave.
Relatedly, although the hearing was slated for 22nd March 2022 at 0.00 pm at Karen Connection Complex the respondent availed no evidence that a hearing took place and minutes recorded and that the claimant was absent. Such minutes are necessary as evidence that there was indeed a meeting committee member and what transpired on that day including the recommendation of the disciplinary committee. Without minutes, the respondent cannot demonstrate that any meeting took place or that there was a disciplinary committee or panel to hear the claimant.
Significantly, although the letter of termination of the claimant’s employment made reference to a reminder, the respondent did not avail evidence of the reminder or the form it took.
Having failed to prove that it served the invitation letter upon the claimant what she was aware of it a having further failed to prove that a disciplinary hearing meeting took place as scheduled, the respondent had no sustainable basis to urge that the claimant did not attend the disciplinary hearing.
The forgoing is fortified by the fact that the Respondent adduced no evidence of having called or texted the claimant on the date of the hearing or it she was unavailable adjourned the hearing to another day. Such evidence would have shown that a meeting took place and her absence derailed further proceedings.
Similarly, the respondent tendered no evidence to show that the letter of termination of employment was served upon the claimant and how.
Finally, the letter made no reference to the right of appeal and to whom. From the foregoing analysis it is decipherable that the respondent has failed to establish that termination of the claimant’s employment on 14th April 2023 was procedurally fair by dint of the provisions of section 45 (2) (c) of the Employment Act and the court so finds.
Having found that termination of the claimant’s employment by the respondent was unlawful and unfair the claimant qualifies for various reliefs.
(i) Outstanding salary arrears
Documentary evidence on record reveals that the Respondent Associations bank account was frozen for sometimes and salary may not have been paid and thus due and payable to the claimant.
The respondents are jointly and severally liable to pay the claimant any unpaid salary arrears till the date of termination of employment. The amount is easily ascertained from the Respondent Associations payroll.
(ii) A Declaration that the claimant was still an employee of the respondent is patently unmerited and would have no basis. it is dismissed.
(iii) An order compelling the Respondents to pay salary as and when it fell due equally fails for want of a legal basis.
(iv) The alternative remedy of compensation for unlawful termination of employment, is however sustainable as found elsewhere in this judgment.
In determining the quantum of compensation, the court has considered that the claimant was an employee of the respond since 2015 which translated to about 7 to 8 years, which is not long, did not appeal the decision but sought a declaration of being in the employment of the respondent Association, the respondent failed to prove the alleged insubordination or gross misconduct and had no previously recorded cases of misconduct. The court is satisfied that the equivalent of three (3) months gross salary is fair Kshs.486,213.00.
In conclusion judgement is entered in favour of the claimant against the respondent in following terms;
(a) A payment of all outstanding salary, arrears from October 2022 to 14th April 2023.
(b) Equivalent of three (3) months gross salary Kshs.486,213.00.
(c) Costs of the suit at ½ scale.
DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI ON THIS 24TH JUNE, 2026.
DR. JACOB GAKERI
JUDGE
ORDER
In view of the declaration of measures restricting court operations due to the COVID-19 pandemic and in light of the directions issued by His Lordship, the Chief Justice on 15th March 2020 and subsequent directions of 21st April 2020 that judgments and rulings shall be delivered through video conferencing or via email. They have waived compliance with Order 21 Rule 1 of the Civil Procedure Rules, which requires that all judgments and rulings be pronounced in open court. In permitting this course, this court has been guided by Article 159(2)(d) of the Constitution which requires the court to eschew undue technicalities in delivering justice, the right of access to justice guaranteed to every person under Article 48 of the Constitution and the provisions of Section 1B of the Civil Procedure Act (Chapter 21 of the Laws of Kenya) which impose on this court the duty of the court, inter alia, to use suitable technology to enhance the overriding objective which is to facilitate just, expeditious, proportionate and affordable resolution of civil disputes.
DR. JACOB GAKERI
JUDGE
| ELRC NAIROBI CAUSE E384 OF 20232 OF 13 |