Angel v Ramco Group Limited (Employment and Labour Relations Cause E007 of 2020) [2026] KEELRC 2011 (KLR) (16 July 2026) (Judgment)

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT & LABOUR RELATIONS COURT** **AT NAIROBI** **ELRC CAUSE NO. E007 OF 2020** ***(Before Hon. Lady Justice Hellen Wasilwa, J)*** **IDA EVERLYN ANGEL………………………………………..CLAIMANT** **VS** **RAMCO GROUP LIMITED………………………...…....RESPONDENT** **JUDGMENT** 1. The Claimant instituted this claim vide a Memorandum of Claim dated 15th June 2020 and prays for judgment against the Respondent for orders that: - 2. *A declaration that the termination of the Claimant’s employment was unfair, wrongful and unprocedural.* 3. *Kshs. 3,961,800.00 being Twelve (12) Months’ Salary as compensation for Unfair Termination.* 4. *Kshs. 900,450.00 being Three (3) Months’ salary being payment in Lieu of Notice as provided for in the Employment Contract.* 5. *Kshs. 400,000.00 being salary increment back-dated from December 2018 to April 2020.* 6. *Interest on (a), (b) and (c) above, at court rates.* 7. *Costs of the suit.* 8. *Any other or further relief this Honorable Court may deem fit and just to grant.* **Claimant’s Case** 1. The Claimant avers that she was employed by the Respondent on 3rd May 2018 as the Group Head, Talent Acquisition and Management, and was placed on a six months’ probation period. She successfully completed the probation period on 3rd December 2018 and was never issued with an extension of probation nor notified of any concerns regarding her performance. 2. The Claimant avers that despite completing probation, the Respondent delayed issuing her confirmation letter by one year and three months and only issued the same on 24th July 2019. The Respondent attributed the delay to an evaluation allegedly conducted on 14th November 2018, which evaluation she asserts never took place. 3. She further avers that she was merely asked to sign the confirmation letter with the contents already prepared by the Respondent. 4. The Claimant states that Clause 5 of her employment contract provided for medical insurance, a car purchase offer on instalment basis and a salary increment of Kshs. 25,000 upon successful completion of probation. The contract did not make the salary increment conditional upon performance and that the Respondent irregularly denied her the increment and medical insurance despite her successful completion of probation. 5. It is the Claimant’s case that the confirmation letter referred to an extension of probation without disclosing when the extension was effected or its duration. The letter did not indicate that her employment was in jeopardy or that termination was being contemplated on account of poor performance. 6. The Claimant avers that she diligently discharged her duties until 31st March 2020 when the Respondent’s Human Resource Director, Mr. Dennis Nyongesa, approached her and requested her to resign from employment. 7. She states that she declined the proposal, whereupon the Human Resource Director threatened to dismiss her on grounds of poor performance. 8. The Claimant further states that during a meeting held on 31st March 2020, she was informed that she ought to voluntarily resign as a negotiated exit so as to avoid a dismissal which would negatively affect her career record. She was also informed that she could either seek a pay cut and additional responsibilities or be paid two months’ notice and be allowed to continue occupying the staff house for three months. 9. The Claimant avers that she thereafter wrote to the Chief Operating Officer seeking concessions prior to resigning, but the Human Resource Director responded by referring to their earlier discussions and insisting that she was supposed to resign. 10. The Claimant states that she made it clear that she had not volunteered to resign and challenged the assertion that she was to tender her resignation. Subsequently, the Human Resource Director sought confirmation on whether he should proceed with termination, whereupon, she informed the Respondent that the decision on the next course of action lay entirely with it. 11. The Claimant asserts that on 3rd April 2020 she was unfairly dismissed vide a letter dated 30th March 2020 on grounds of poor performance. 12. She states that the termination letter referred to a performance agreement report allegedly signed on 25th January 2020 and that prior to the dismissal, her performance had never been brought into question. 13. The Claimant contends that throughout her employment the Respondent never notified her that her performance was below the required standards, never placed her on a Performance Improvement Plan, never issued her with a warning letter, a notice to show cause or invited her to a disciplinary hearing to explain herself before the decision to terminate her employment was reached. 14. The Claimant avers that it was only through the termination letter that she became aware of the alleged performance concerns and that it was the first time she was informed that her employment was being terminated on account of poor performance. 15. The Claimant states that after clearing with the Respondent she signed a Full and Final Settlement Declaration on 11th May 2020 under duress so as to be paid part of her terminal dues, namely salary for days worked in April 2020 and accrued leave days. The Human Resource Director informed her that unless she signed the declaration, she would not receive her dues. 16. She further states that she was never informed of her right of appeal against the decision to terminate her employment and that despite her contract providing for three months’ notice, the Respondent only gave her thirty days’ notice and failed to pay her notice dues. 17. The Claimant contends that the Respondent breached the employment contract by failing to provide medical insurance and by failing to effect the salary increment of Kshs. 25,000 upon completion of probation. 18. It is the Claimant’s case that the process leading to her termination was procedurally flawed in that she was never informed of the charges against her, was never afforded an opportunity to prepare and present her defence and that her representations were never considered before the decision to dismiss her was made. She contends that the process was biased and had a predetermined outcome aimed at removing her from employment. 19. The Claimant further asserts that there was no substantive justification for her dismissal since she was never placed on a Performance Improvement Plan, the Respondent made no effort to support her in areas requiring improvement and she was never warned that her employment would be terminated if her performance did not improve. 20. The Claimant avers that she was harassed by the Respondent through being compelled to resign, being threatened with termination for failure to resign, being asked to confirm whether termination should proceed and being compelled to sign the Full and Final Settlement Declaration before payment of her dues. 21. The Claimant states that as a result of the Respondent’s actions, she suffered reputational damage, mental anguish and financial hardship, particularly because the termination occurred during the Covid-19 pandemic when the country was experiencing severe economic challenges. **Evidence in Court** 1. The Claimant witness, (CW1) adopted her witness statement dated 15th June 2020 as her evidence in chief and produced her documents dated even date as her exhibits. 2. During cross examination, CW1 testified that when filling her probation evaluation in November 2018, her direct supervisor, Dennis Nyongesa, scored her 1, 2 and 4 and indicated that she needed in house coaching. 3. She testified that the score 1 is not meeting expectation and 2 means one needs development. And suring her last evaluation, she scored 47%. 4. CW1 testified that at the meeting held on 31st March 2020 with her direct supervisor, she was threatened with termination due to poor performance if she did not resign. Subsequently, she resigned vide a resignation letter (at page 18 of the Respondent’s documents) sent on whatsapp at around 1pm. 5. CW1 testified that in the resignation letter, she stated that the years she worked for the Respondent was valuable but testified that signature therein is not her official signature. 6. CW1 testified that in her email at page 20 of the Respondent’s documents, she stated that she will not take the offer to resign and thereafter, the Respondent sent her a termination letter dated 30th March 2020, one day before the meeting. 7. CW1 testified that she was forced the full and final settlement declaration by her direct supervisor and she signed it before him. After signing, her supervisor gave her a cheque and she was paid her full salary. 8. The Respondent’s witness, Dennis Nyongesa, (RW1) testified in May 2018 and April 2020, he was working as the Respondent’s HR Director and the Claimant was his support staff. 9. He testified that the Respondent company is a group of 40 companies and HR was centralised. 10. RW1 adopted his witness statement dated 26th August 2020 as her evidence in chief and produced the Respondent’s list of documents dated 26th August 2020 as his exhibits. 11. Upon cross-examination, RW1 testified that the Claimant’s employment was confirmed vide a letter dated 24th July 2019, 16 months after commencement of her employment, but there was no letter extending her probation period. 12. RW1 testified he evaluated that the Claimant on 22nd November 2018 and thereafter she was put on a performance improvement plan (PIP). 13. He testified that the evaluation form was never filled and forwarded to the employee and her performance was only brought to her attention in May 2018 when she was being confirmed. 14. RW1 testified that the Claimant was notified of an impending termination and she was never informed of any disciplinary hearing and neither was any hearing conducted against her. 15. RW1 testified that he had a meeting with the Claimant on 31st March 2020 and she did not coerce her to resignation. The resignation notice was sent to him but he did not acknowledge the resignation. 16. RW1 testified that the Claimant was offered training but she did not take it up. **Claimant’s Submissions** 1. The Claimant submitted on seven issues: Whether the termination was procedurally fair under Section 41 of the Employment Act; Whether the Respondent proved a valid and fair reason for termination under Sections 43 and 45 of the Employment Act; Whether the Respondent breached the contract and Section 42 of the Employment Act regarding probation and remuneration; Whether the Claimant was subjected to harassment and duress under Section 5 of the Employment Act; Whether the Respondent is discharged from liability given the Claimant’s explicit reservation of rights; Whether the Claimant is entitled to the relief sought; Who should bear costs of these proceedings. 2. On the first issue, the Claimant submitted that her termination fell short of the procedural requirements set out under Section 41 of the Employment Act, 2007. The Respondent's own HR Director, Dennis Nyongesa, admitted in testimony that no notice to show cause was issued to her prior to the termination letter of 30th March 2020, and that no disciplinary hearing was convened at which she could have had a witness present. 3. Relying on [***Postal Corporation of Kenya v Andrew K. Tanui [2019] eKLR***](https://new.kenyalaw.org/akn/ke/judgment/keca/2019/489/eng%402019-07-19), it was submitted that four elements must be satisfied for a termination process to be fair: an explanation of the grounds, disclosure of the reasons prompting termination, the presence of a witness, and consideration of representations made. In the instant suit, the meeting held on 31st March 2020 was not a hearing at all, but a boardroom ultimatum in which she was advised to resign to avoid a dent in her career. 4. The Claimant further relied on [***Njai v Amadeus East Africa [2025] KECA 2044 (KLR)***](https://new.kenyalaw.org/akn/ke/judgment/keca/2025/2044/eng%402025-11-28), and submitted that the Respondent never complied with Section 41 which mandates that an employee be informed of allegations in a language she understands and be given an opportunity to respond. 5. On the second issue, the Claimant submitted that the burden of proving a valid reason for termination rests squarely on the employer under Section 43(1) of the Employment Act; and failure to discharge this burden renders a termination unfair within the meaning of Section 45. Reliance was placedon the Court of Appeal decision in [***Pius Machafu Isindu v Lavington Security Guards Limited [2014] eKLR***](https://new.kenyalaw.org/akn/ke/judgment/keic/2014/121/eng%402014-05-08) for the proposition that the Employment Act places heavy legal obligations on employers to prove the reasons for termination, that such reasons are valid and fair, and that the grounds are justified. 6. It is the Claimant's submission that although the Respondent cited a 47% appraisal score as evidence of poor performance, however, she was never placed on a Performance Improvement Plan or issued a formal warning before her sudden termination, and the internal coaching and mentoring promised in her July 2019 confirmation letter was never provided. 7. Relying on [***Jane Samba Mukala v Ol Tukai Lodge Limited [2013] eKLR***](https://new.kenyalaw.org/akn/ke/judgment/keic/2013/634/eng%402013-09-30), she submitted that an employer alleging poor performance is held to a high standard of proof requiring demonstration of an established policy for measuring performance, which the Respondent admittedly did not meet. 8. On the third issue, the Claimant submitted that the Respondent confirmed her employment nearly 15 months after her start date, which was well beyond the maximum period permitted under Section 42(2) of the Employment Act, which provides:*"a probationary period shall not be more than six months but it may be extended for a further period of not more than six months with the agreement of the employee."* 9. The Claimant submitted that the Respondent’s actions amounted to a clear statutory violation, relying on [***Kemboi v Multimedia University of Kenya & another [2023] KEELRC 3288 (KLR)***](https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/3288/eng%402023-12-14), where it was held that any extension of probation beyond six months without the employee's consent is irregular. 10. She further submitted that Clause 5(c) of her employment contract entitled her to Kshs. 25,000 increment upon completion of probation, and that Dennis Nyongesa admitted this increment was arbitrarily shelved until 2020 without any contractual basis for doing so. On this ground, the Claimant argued that she entitled to the backdated salary increment of Kshs. 400,000, running from December 2018 to April 2020. 11. On the fourth and fifth issue, the Claimant submitted that, contrary to the Respondent's contention that she proposed to resign, she was in fact placed under duress and given a resign or be fired ultimatum at the 31st March 2020 meeting. This was corroborated by her same day appeal email sent at 2.33pm detailing personal medical and housing hardships which contradicts the notion of her voluntary departure. 12. She submitted that she was told she would not receive her dues unless she signed the discharge document, and that she deliberately wrote that she reserves her rights beside her signature to preserve her claim. 13. Citing [***V M K v C U E A [2013] KEELRC 86 (KLR)***](https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/86/eng%402013-11-08), it was submitted that a discharge document cannot be used to sanitize a violation of constitutional labour rights where those rights have been expressly reserved, and that the settlement could not extinguish her claim of Kshs. 5,352,250.00. 14. The Claimant invoked Section 5(3), (5) and (7) of the Employment Act, submitting that the burden lies on the employer to prove that discrimination or harassment did not occur, and that the Respondent adduced no evidence to rebut her account. 15. It is the Claimant’s submission that in asking her to resign and when she shared an image of a pencil written resignation which was never submitted to the Respondent and acknowledged by the Respondent. Further, the Respondent’s witness made it known on email to the Claimant that her rejection to resign is green light for the Respondent to proceed with termination amounted to harassment contrary to Section 5 of the Employment Act and Article 41 of the Constitution. 16. It was submitted that the Respondent did not provide any evidence to rebut the above described instances of discrimination, thus entitling the Claimant to be awarded damages for harassment as was held in the Supreme Court case [***Simon Gitau Gichuru v Package Insurance Brokers Ltd [2020] eKLR***](https://new.kenyalaw.org/akn/ke/judgment/kesc/2020/19/eng%402020-09-03). 17. On the reliefs sought, the Claimant submitted that she had discharged the burden of proof placed on her under Sections 107 and 108 of the Evidence Act, while the Respondent failed to discharge its corresponding burden under Section 5(7) of the Employment Act by failing to call witnesses to rebut her allegations of harassment and discrimination. 18. The Claimant submitted that her termination of her employment was carried out without any regard to Justice and Equity; taking into consideration the alleged grievances the Respondent had against the Claimant and the manner in which the Respondent handled the Claimant’s disciplinary process vis-à-vis the Disciplinary process of the Claimant’s supervisor. 19. She submitted that none of the requirements of Section 41 of the Employment Act were met: she was never given a clear explanation of the grounds for termination, was not informed of the reasons prompting the Respondent's decision, was not afforded the right to be accompanied by a fellow employee, and was never given a genuine opportunity to have her representations considered. 20. The Claimant further submitted that she was harassed by the Respondent and that the events leading to her termination and her eventual termination from employment were all unfair and without any justification in law. 21. It was submitted that the Claimant had no prior warning letters and was never placed on a PIP, and that, in terms of Section 45(2), (4) and (5) of the Employment Act, the Respondent had failed to prove that the termination was valid, fair, or carried out in accordance with justice and equity. On this basis, the Claimant argued that she is entitled to reliefs sought. 22. On the final issue, the Claimant submitted that costs are discretionary under Section 27 of the Civil Procedure Act but ordinarily follow the event, such that the successful litigant is entitled to costs. 23. In support thereof, she cited ***Republic v Rosemary Wairimu Munene, Ex-parte Applicant v Ihururu Dairy Farmers Co-operative Society Ltd, Judicial Review Application No 6 of 2004*** and Justice (Retired) Richard Kuloba in his book, Judicial Hints on Civil Procedure, 2nd Edition, page 99, for the proposition that a plaintiff who comes to enforce a legal right without misconduct on her part is entitled to the costs of the suit as a matter of course. 24. It is the Claimant’s submission that having established a meritorious claim against the Respondent, she should be awarded the costs of the suit in addition to the reliefs sought. **Respondent’s Submissions** 1. The Respondent submitted on five issues: Whether the Claimant's employment contract subjected her to continuous performance monitoring and whether the performance concerns were consistently communicated to her; Whether the deferral of the salary increment was a freely executed mutual written agreement binding on the Claimant, and whether the Claimant has any enforceable entitlement to the claimed back pay; Whether the Claimant's persistent failure to perform constituted gross misconduct entitling the Respondent to summary dismissal under the Employment Act, 2007 and the contract; Whether the termination was procedurally and substantively fair; Whether the Claimant is entitled to any of the reliefs sought. 2. On the first issue, the Respondent submitted that Clause 2 of the Claimant's employment contract expressly provides that *"you shall be subject to continuous performance monitoring,"* and that this provision placed her performance under active, ongoing assessment from the commencement of her employment. 3. The Respondent relied on the Court of Appeal decision in [***Kenya Airways Limited v Aviation & Allied Workers Union Kenya & 3 others [2014] eKLR***](https://new.kenyalaw.org/akn/ke/judgment/keca/2014/403/eng%402014-07-11) for the principle that an employer is entitled to set and enforce reasonable performance standards, and submitted that Section 42 of the Employment Act recognises probationary employment as a legitimate mechanism for assessing an employee's suitability before confirmation. 4. The Respondent submitted that, contrary to the Claimant's assertion that her performance concerns were never raised, a contemporaneous documentary record spanning nearly two years demonstrated the opposite. The Claimant’s November 2018 appraisal identified performance deficiencies to which the Claimant contributed her own self-evaluation; that the Confirmation Letter of 24th July 2019 enumerated six specific failures and was signed by the Claimant; that the January 2020 annual appraisal rated her at 47%, within the POOR band, with an accompanying warning that failure to improve within three months would result in termination; and that her own email of 31st March 2020 stated, *"I agree we did the performance evaluation,"* which the Respondent submitted was a tacit admission of the process and her scores. 5. The Respondent relied on [***Jane Samba Mukala v Ol Tukai Lodge Limited [2013] eKLR***](https://new.kenyalaw.org/akn/ke/judgment/keic/2013/634/eng%402013-09-30), as affirmed on appeal in [***National Bank of Kenya v Samuel Nguru Mutonya [2019] eKLR***](https://new.kenyalaw.org/akn/ke/judgment/keca/2019/404/eng%402019-08-06) and [***National Bank of Kenya v Anthony Njue John [2019] eKLR***](https://new.kenyalaw.org/akn/ke/judgment/keca/2019/445/eng%402019-08-06)***;*** and submitted it had satisfied every limb of the framework requiring an objective evaluation system, communication of deficiencies, a meaningful opportunity to improve, and further review before termination. 6. The Respondent further relied on ***Kenya Science Research International Technical and Allied Workers Union (KSRITAWU) V Stanley Kinyanjui and Magnate Ventures Ltd (Cause No 273 of 2010)***, submitting that it had done more than merely point out shortcomings, having done so in writing, with specificity, on multiple occasions. 7. On the question of the probation extension, the Respondent submitted that the Claimant freely consented to the extension by signing the confirmation letter dated 24th July 2019. 8. It was submitted that authority relied upon by the Claimant, [***Kemboi v Multimedia University of Kenya & another [2023] KEELRC 3288 (KLR)***](https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/3288/eng%402023-12-14) defeats her argument as the Court held that extension beyond six months is irregular only where it is done without the employee's input or consent. In the instant suit, the Claimant's signed acknowledgement of the confirmation letter dated 25th July 2019 constitutes precisely the consent and input that the ***Kemboi*** court required. 9. On the second issue, the Respondent submitted that the Claimant held a senior, Group-wide role with fourteen distinct duties, and that her sustained failure to deliver these was a systemic and material failure going to the heart of her contract. 10. Relying on Clause 10 of the employment contract, which permitted termination without notice where an employee neglects his or her duties or refuses or fails to carry out any of the duties assigned to him or her and on Section 44(3) and (4) of the Employment Act, the Respondent submitted that persistent failure to perform obligations falls within the non-exhaustive categories of gross misconduct contemplated by that section. 11. Citing [***Godfrey Barasa Ochieng v Security Gaurds Services Limited [2022] KEELRC 447 (KLR)***](https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/447/eng%402022-03-17), wherein the Court confirmed that persistent failure could amount to gross misconduct within the meaning of Section 44 of the Employment Act, entitling the employer to invoke summary dismissal; and that Section 41 requires a hearing even before summary dismissal under Section 44(3) or (4). It is the Respondent’s submission that it satisfied this requirement through the ongoing performance management process, including direct meetings, formal appraisals, written communications and the meeting of 31st March 2020. 12. The Respondent submitted that the Claimant's conduct namely: persistent, documented and repeatedly acknowledged failure to perform the fundamental obligations of a senior Group HR role over a period approaching two years, despite multiple formal appraisals, written warnings, extensions, coaching opportunities and a final three-month improvement window, falls squarely within the concept of gross misconduct entitling summary dismissal under both Section 44(4) and Clause 10 of the contract. 13. It is the Respondent’s submission that the Claimant’s conduct was not a case of a single lapse or brief underperformance. It is a sustained and systemic failure to discharge core contracted obligations. 14. The Respondent submitted that a party who has consistently acknowledged performance deficiencies in contemporaneous documents, signed on each occasion, cannot subsequently maintain that those deficiencies were never communicated or were not genuine. The Claimant's own signed acknowledgments, spread across a period of nearly two years, that is, in the November 2018 self-evaluation, the July 2019 Confirmation Letter, the January 2020 appraisal, and her email of 31st March 2020, constituted a sustained chain of admissions recorded and acknowledged over the entire arc of the Claimant's employment. 15. On the absence of a Performance Improvement Plan, the Respondent submitted that neither the Employment Act nor subsidiary legislation mandates a PIP as a precondition to termination. 16. It was submitted that the Court in [***Jane Samba Mukala v Ol Tukai Lodge Limited [2013] eKLR***](https://new.kenyalaw.org/akn/ke/judgment/keic/2013/634/eng%402013-09-30), did not hold a PIP to be the exclusive means of discharging an employer's obligations. In the present case, the Respondent satisfied all three limbs through a means more rigorous than a mere PIP: structured formal appraisals in November 2018; written communication of six specific performance deficiencies in July 2019; a formal three-month improvement window granted in January 2020 with express warning of the consequence of non-improvement; and the offer of coaching, mentoring and NITA training. The Respondent's multi-stage, documented and acknowledged performance management process went beyond what a PIP would have required and fully discharged the obligations articulated in the cited Case. 17. The Respondent submitted that notwithstanding the full engagement of the right of summary dismissal, the Respondent did not exercise it precipitously. Rather than dismiss summarily in January 2020 upon the POOR rating, the Respondent, consistent with its good faith approach throughout, afforded the Claimant a further three months' opportunity to demonstrate improvement. This additional patience is wholly inconsistent with the narrative of an employer acting arbitrarily or in bad faith. 18. The Respondent further relied on [***Kenfreight (E.A) Limited v Benson K. Nguti [2016] eKLR***](https://new.kenyalaw.org/akn/ke/judgment/keca/2016/409/eng%402016-07-01) for the proposition that an employer must explain reasons and afford a hearing before terminating even on substantive grounds, submitting this had been done through the sustained process culminating in the meetings of January and March 2020. 19. On the third issue, the Respondent submitted that the increment claim failed on multiple independent grounds. Clause 5 of the contract conditioned the increment on successful completion of probation, a threshold the Claimant never met given her 47% - POOR rating. The word "successful" is operative and non-trivial; which is not synonymous with the mere passage of time or the expiry of the six-month probationary window. It requires positive confirmation of satisfactory performance a threshold the Claimant demonstrably and consistently failed to meet. 20. The Respondent submitted that the Claimant seeks a contractual benefit that was conditional and she never earned. It argued that the Claimant’s argument that salary review clause in the contract conditioned any annual review on a performance appraisal "showing at least satisfactory." The Claimant never achieved a satisfactory rating at any point in her employment. Even had the incremental entitlement arisen, it could not have been triggered by the annual review mechanism. 21. The Claimant submitted that by giving Clause 5 its natural meaning "on successful completion of your probation", the entitlement never arose. In support it cited [***National Bank of Kenya Ltd v Pipeplastic Samkolit (K) Ltd & another [2001] eKLR***](https://new.kenyalaw.org/akn/ke/judgment/keca/2001/362/eng%402001-06-08) for the principle that courts do not rewrite contracts and must give terms their natural meaning. 22. The Respondent submitted that any arguable entitlement was extinguished by the bilateral written agreement in the confirmation letter of 24th July 2019, which the Respondent quoted as recording that the increment *"will be shelved until full delivery of the role is met,"* a condition it submitted the Claimant never fulfilled. 23. It is the Respondent’s submission that this is not a unilateral employer decision. It is a bilateral, signed, written agreement, a contractual variation executed by both the Respondent's authorised signatories (the Group HR Director and the Group COO) and by the Claimant herself. It satisfies Clause 11 of the employment contract, which required all amendments to be *"in writing executed by both parties."* The Claimant was a senior Human Resources professional, thus, she cannot credibly claim ignorance of what she signed or the legal effect of her signature. 24. The Respondent submitted that the Claimant's own conduct through her silence on the increment for approximately nine months, between her signing the deferral agreement in July 2019 and her termination in March 2020, was inconsistent with the position of a person who genuinely considered herself entitled to the increment as a vested contractual right throughout that period. It is, on any reasonable analysis, an afterthought; a claim calculated in retrospect to inflate the monetary value of the suit. The Claimant's prolonged silence on a matter she now asserts as entitling her to Kshs. 400,000 is compelling evidence against the claim. 25. The Respondent submitted that the Full and Final Settlement Declaration dated 11th May 2020 operated as a complete discharge of all claims, including the increment. It relied on [***Coastal Bottlers Limited v Kimathi Mithika [2018] eKLR***](https://new.kenyalaw.org/akn/ke/judgment/keca/2018/523/eng%402018-06-07), where the Court of Appeal held: *“……it is clear that the parties had agreed that payment of the amount stated in the settlement agreement would absolve the appellant from any further claims under the contract of employment and even in relation to the respondent's termination.”* 26. The Respondent further submitted that in [***Trinity Prime Investment Limited v Lion of Kenya Insurance Company Limited [2015] eKLR***](https://new.kenyalaw.org/akn/ke/judgment/keca/2015/793/eng%402015-04-24)***,*** the Court held that the execution of a discharge voucher constitutes a complete contract and that even where the amount paid may be less than the full claim, the party who accepts it is fully discharged, absent fraud, misrepresentation or incapacity. In the instant suit, none of those vitiating circumstances have been established or even properly pleaded. 27. It is the Respondent’s submission that the Claimant was not a vulnerable or unsophisticated party who may have signed without comprehension. She was the Respondent's own Group Head of Talent Acquisition and Management, a senior Human Resources professional whose entire role involved employment documentation, contracts, and HR policy. She is, of all people, the least able to credibly maintain that she did not understand the effect of what she signed. 28. It was submitted that the Claimant's attempt to append a unilateral reservation to her signature does not alter this analysis. A party cannot, by their own unilateral act at the moment of signing, nullify a bilateral agreement whose terms they have had the opportunity to read, consider and negotiate. The reservation was not accepted by the Respondent as a variation of the settlement terms; it was not a term of the agreement; and the Claimant nonetheless received and retained the settlement payment of Kshs. 456,044. Her acceptance of the consideration is the definitive external manifestation of her acceptance of the settlement terms, as confirmed by [***Thomas Otieno Oluoko v Uzuri Foods Limited (Golden Harvest Mills) [2021] eKLR***](https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/248/eng%402021-12-07). 29. On the Claimant's reliance on [***V M K v C U E A [2013] KEELRC 86 (KLR)***](https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/86/eng%402013-11-08), the Respondent submitted this was a misapplication, arguing that VMK concerned a genuine constitutional rights violation under Articles 27 and 41 of the Constitution, whereas the present dispute was an ordinary contractual and statutory compensation claim. Further, the Court of Appeal in [***Coastal Bottlers Limited v Kimathi Mithika [2018] eKLR***](https://new.kenyalaw.org/akn/ke/judgment/keca/2018/523/eng%402018-06-07), post-dates ***VMK*** and it made clear that parties who freely execute settlement agreements, supported by consideration, are bound by those agreements in employment disputes, and that it does not matter that the amount paid may be regarded as inadequate. 30. On substantive fairness, the Respondent submitted that it had discharged its burden under Sections 43(1) and 45(2) of the Employment Act, relying on [***Janet Nyandiko v Kenya Commercial Bank Limited [2014] eKLR***](https://new.kenyalaw.org/akn/ke/judgment/keca/2014/293/eng%402014-10-24), as adopted in [***National Bank of Kenya v Samuel Nguru Mutonya [2019] eKLR***](https://new.kenyalaw.org/akn/ke/judgment/keca/2019/404/eng%402019-08-06) and [***National Bank of Kenya v Anthony Njue John [2019] eKLR***](https://new.kenyalaw.org/akn/ke/judgment/keca/2019/445/eng%402019-08-06), for the standard requiring a valid reason, a fair reason, and action in accordance with justice and equity; all of which it submitted were met. 31. On procedural fairness, the Respondent submitted that Sections 41(1) and 41(2) of the Employment Act were substantially satisfied through the November 2018 appraisal, the July 2019 Confirmation Letter, the January 2020 review, and the meeting of 31st March 2020, relying on [***Kenfreight (E.A) Limited v Benson K. Nguti [2016] eKLR***](https://new.kenyalaw.org/akn/ke/judgment/keca/2016/409/eng%402016-07-01). 32. Addressing the Claimant's reliance on [***Njai v Amadeus East Africa [2025] KECA 2044 (KLR)***](https://new.kenyalaw.org/akn/ke/judgment/keca/2025/2044/eng%402025-11-28), the Respondent submitted that this authority in fact supported its position, since the Court of Appeal in that case upheld a termination as procedurally fair notwithstanding that the process proceeded through written correspondence rather than a single oral hearing, quoting the Court's finding that the employee *"was notified of the allegations against him from the outset, given an opportunity to respond in writing, issued both a warning and a show-cause letter and invited to participate further in the disciplinary process."* 33. It was submitted that the Claimant had selectively quoted the four-element test from[***Njai (Supra)***](https://new.kenyalaw.org/akn/ke/judgment/keca/2025/2044/eng%402025-11-28) extracting only the legal test while ignoring the outcome of that very case, which was a complete vindication of the employer on both substantive and procedural grounds. 34. On notice, the Respondent submitted that the Claimant's gross misconduct disentitled her to notice under Section 44(4) and Clause 10, but that she had nonetheless received and been paid for a one-month notice period, and that in any event the Full and Final Settlement Declaration settled any residual notice claim. 35. On the final issue, the Respondent submitted that Section 47(5) of the Employment Act places the burden of proving unfair termination on the employee, and relied on [***CMC Aviation Limited v Mohammed Noor [2015] eKLR***](https://new.kenyalaw.org/akn/ke/judgment/keca/2015/775/eng%402015-04-24) for the proposition that compensation is a discretionary remedy calibrated to the facts rather than awarded as a matter of course. 36. It was submitted that the Claimant had wholly failed to discharge this burden, such that all heads of relief fell away. In the alternative, and without prejudice to its primary submissions, the Respondent submitted that even if the Court found a narrow procedural shortcoming in the form of a formally convened Section 41(1) hearing, this would not vitiate what was on the whole a substantively justified termination. 37. Relying on [***CMC Aviation Limited v Mohammed Noor [2015] eKLR***](https://new.kenyalaw.org/akn/ke/judgment/keca/2015/775/eng%402015-04-24), where the Court of Appeal, having found unfair termination, nonetheless set aside a twelve-month compensation award and substituted one month's salary, quoting its reasoning that *"since the contract of employment was terminable by one month's notice, we believe that an award of one month's salary in lieu of notice would have been reasonable compensation."* The Respondent submitted that, at most, compensation should be limited to one month's gross salary which is already paid and acknowledged. 38. It further submitted that the claim for twelve months' compensation of Kshs. 3,961,800 was unsupported and ought to be dismissed, together with the suit in its entirety, with costs to the Respondent. 39. I have examined all the evidence and submissions of the parties herein. Based on the evidence, the issues for the court’s determination are as follows: 40. **Whether the claimant was fairly and justly terminated.** 41. **Whether the claimant is entitled to remedies sought.** 42. **Who bears costs of the claim.** **ISSUE NO 1** 1. On the 1st issue, the employment relationship between the claimant and respondent is not denied. It is however true that the claimant was employed on 3/5/2018 and was to be on probation for 6 months. The probation period was never extended at the end of the 6 months which basically came to an end on 2/11/2018. 2. Vide a letter of 24/7/2019, claimant was informed that her confirmation had been extended and she was now being confirmed as at 24/7/2019. This letter was illegal null and void on all fronts by virtue of section 42 of the employment act 2007 which provides that a probation period shall not be more than six months but it may be extended for a further period and not more than six months with the agreement of the employee. There is no indication that the respondents indicated to the claimant at the close of the 1st 6 months that they were considering extending her probation for another 6 months due to poor performance. 3. It is therefore my finding that the failure by the respondents to inform the claimant of this fact and get here concurrence on the extension was manifestly illegal, null and void and therefore any attempt to now conform her in employment after over 1 year since the appointment fails. I take it that failure by the respondent to communicate her confirmation after her initial 6 months did not leave room for the respondents to try and confirm her at a later time. It is therefore my finding that the claimant stood confirmed in employment 1 day after the expiry of the 6 months probation which is on 3/11/2018. 4. Upon this confirmation as it should have been the increment envisaged as per the contract set in which was 25,000/- per month and which was shelved until 2020. The claimant was entitled to an increment of kshs 25,000/- from 3/11/2019. The claimant pleaded that she be paid the amount for December 2018 to April 2020. This amounts to kshs 400,000/- and which I award the claimant. 5. Following this confirmation, it is also true that the claimant was subsequently terminated by the respondent. There is no indication that that the claimant was issued with any formal complaint of poor performance. There is also no indication that she was invited for any disciplinary hearing and asked to present her case as provided for under section 41 of the Employment Act 2007 which states as follows: **41. (1). Subject to section 42 (1), an employer shall, before terminating the employment of an employee, on the grounds of misconduct, poor performance or physical incapacity explain to the employee, in a language the employee understands, the reason for which the employer is considering termination and the employee shall be entitled to have another employee or a shop floor union representative of his choice present during this explanation.** 1. From her termination letter of 30/3/2020, she was terminated for poor preformation. There is still no evidence that the reason/s were put to the test as envisaged under section 41 of the Employment Act 2007. She was never informed of any impending termination. It is also indicated by the RW1 that he had also sent an email to the claimant asking her to resign which she declined. It is therefore apparent that the claimant never resigned from employment and her termination was based on grounds that have not been established. 2. Section 45 of the Employment Act 2007 states as follows:- **(2) A termination of employment by an** **employer is unfair if the employer fails to prove―** 1. **that the reason for the termination** **is valid;** 1. **that the reason for the termination is a fair reason―** 2. **related to the employees conduct, capacity or compatibility; or** 3. **based on the operational requirements of the employer; and** **(c) that the employment was terminated in accordance with fair procedure** 1. The claimant having been terminated without following due process and without establishment of the existence of valid reason for her termination, I find the termination unfair and unjustified and I declare it so. The claimant has further submitted that she was harassed by the respondents before her termination and was discriminated upon. The issue of discrimination has however not been well articulated by the claimant because she has not explained in which manner she was discriminatorily treated as compared to the other employees. 2. The upshot of this judgment is that I find for the claimant in terms of being unfairly terminated and I award her as follows: 3. Kshs 400,000/- cash never paid to her as salary increment upon her confirmation in employment as per her contract of employment. 4. Given the manner of being treated unfairly and kept on probation for over 1 year and being terminated without due process, I find 8 months salary as compensation is fair in the circumstances = 8x300,150= kshs 2,401,200/-. 5. 3 months salary in lieu of notice pay as per employment contract = 3x300,150 = 900,450/- **Total payable = 3,341,650**/- less statutory deductions. 1. The respondents will pay costs of this suit plus interest at court rates with effect from the date of this judgment. **Dated, Signed and Delivered virtually at Nairobi this 16th Day of July 2026.** **HELLEN WASILWA** **JUDGE**