https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1987

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT AND LABOUR RELATIONS COURT** **AT NAIROBI** **PETITION NO. E160 OF 2025** *(Before Hon. Justice Dr. Jacob Gakeri)* **ALPHONCE ELLY CHORE………….…………………...... PETITIONER** **VERSUS** **INTERNATIONAL COMMITTEE OF THE RED CROSS ……………………..……………………………………………..RESPONDENT** **JUDGMENT** The Petitioner filed the instant Petition on 8th April 2025 alleging that the Respondent had violated his constitutional rights and terminated his employment unlawfully and unfairly. The petitioner sought various relief as follows: 1. A Declaration that the Respondent’s actions violated his Constitutional rights guaranteed under Articles 28, 41(1), 47(1) and (2) and 50 of the Constitution of Kenya. 2. A Declaration that the termination of the Petitioner’s employment was unlawful, unfair and in breach of his rights under the Constitution and the Employment Act. 3. A Declaration that the institution of criminal proceedings against the Petitioner in Criminal Case No. 1030 of 2019 was malicious, unwarranted and amounted to an abuse of legal process. 4. An order directing the Respondent to issue certificate of service to the Petitioner. 5. An award of general and aggravated damages to the Petitioner for unlawful dismissal, malicious prosecution and resultant reputational injury. 6. Interest on general damages at court rates till payment in full. 7. Interest on special damages at court rates till payment in full. 8. Costs of the petition. By a Supporting Affidavit sworn on 10th March 2025, the Petitioner deponed that he was employed by the Respondent and served with the highest of integrity and adhering to the Staff Regulations, Code of Conduct and pledge of Discretion and Confidentiality and had a clean record. That owing to his dedication and competence, he was entrusted with various responsibilities and received positive evaluations and contract renewed annually. The Petitioner avers that in late 2018, he was falsely accused of theft of materials from the ICRC Nairobi premises despite the absence of concrete evidence as there was no witness statement, proof or tangible evidence. That disciplinary hearing was hastily conducted and was not accorded adequate opportunity to defend himself nor were full details of the allegations availed and was not accorded opportunity to present his case. That the hearing was premeditated and blazed and was summarily dismissed on 31st January 2019. That thereafter the Respondent filed a complaint against him, which led to his arrest, charge and prosecution in Criminal case No. 1030 of 2019 at the Chief Magistrate’s Court Nairobi and was acquitted on 18th July, 2022. That the criminal case dented his reputation and was unable to secure alternative employment which led to financial ruin. That no investigation was conducted and the petitioner was blamed and attempts to resolve the matters had been unsuccessful Strangely by 19th May 2026 when the matter came up for mention to confirm the filing of submissions, the Respondent had not filed its Response to the Petition and did not inform the court and directions on the filing and exchange of submissions were issued with a mention on 16th June 2026 when another counsel for the respondent disclosed that no Replying Affidavit had been filed and sought time to do so and the court obliged him to file the Response and submissions within 7 days and Petitioner 7 days after service with a mention to confirm compliance. **Respondent’s Case** By a Replying Affidavit sworn on 25th June 2026, Cristiana Scano, the Head of Support of the Respondent admitted that the Petitioner joined the Respondent on 19th June 2017 at a monthly salary Kshs.148,480.00 and the contract was subsequently extended and converted into an open-ended contract and the Petitioner was an ICT. Specialist responsible *inter alia* for management of ICT hardware through the Field 15 Inventory Databse, sole custodian of the ICT Main Store at the Respondent’s offices, managing the equipment pool and mobile phones and serving as the subject matter expert on ICT Inventory and item movement as er the job description. The Respondent’s case is that an asset management compliance audit and an annual physical inventory-taking exercise conducted at the Nairobi ICT store by one Mohamoud Mohohamed Abdiaziz an ICT specialist from the Somalia Delegation and the Petitioner on 6th and 7th December 2018 revealed a huge stock discrepancy involving 29 HP Elitebook Laptops, 6 surface pro Tablets and 6 assorted mobile phones valued at Kshs.4,996,433.00. The affiant deponed that the petitioner proceeded on leave from 22nd December to 4th January 2019 and on reporting back on 7th January 2019 he was asked about the missing items but alleged that his daughter had been involved in a road accident, and left immediately and did not return and a request by HR to regularize the absence was not honoured and the petitioner did not report back to work until termination of employment and records showed that the petitioner had not registered a daughter as one of his dependants. The affiant deponed that a notice to show cause was issued on 22nd January 2019 on the discrepancies and absconding duty and the petitioner was invited for a disciplinary hearing scheduled on 24th January 2019 but did not attend even after receiving the letter and was summarily dismissed on 31st January 2019 for absconding duty. The affiant further deponed that the matter was reported to the police, at Kilimani Police Station OB No.27/15/2/2019 and subsequently the Petitioner was charged in Criminal Case No. 1030 of 2019 and subsequently acquitted after hearing. The affiant denied that the Respondent violated the Petitioners’ rights. **Petitioner’s Submissions** At to whether the Respondent violated the provisions of Article 47 of the Constitution of Kenya, counsel submitted that the Respondent contravened the provisions through an unlawful unreasonable and procedurally unfair process. Reliance was placed on the decisions in **Kenya Human Rights Commission v Non-Governmental Organizations Co-ordination Board (2016) eKLR** on Section 4(3) of the Fair Administrative Action Act and **President of the Republic of South Africa & others v South African Rugby Union & others,** to urge that the termination of the Petitioner’s employment was an administrative action under Article 47 of the Constitution and the Respondent did not accord the Petitioner a fair and impartial process and there was no disclosure of the materials relied upon. Concerning contravention of Article 41 of the Constitution, reliance was placed on the sentiments of the court in **James Ang’awa Atanda & 10 others v Judicial Service Commission (2017) eKLR** to urge that the termination had to meet the Constitutional threshold and in this case the dismissal was based on mere allegations and was not afforded a fair and impartial process. On Article 50 of the Constitution, counsel submitted that the disciplinary process did not meet the Constitutional standard as the respondent had already initiated criminal proceedings against the petitioner on the same facts and the Respondent had a definitive view of the petitioner. That some members of the panel had prior involvement or exposure to the allegations which compromised institutional neutrality and the process fell below the threshold of the Constitutional standard. On Article 28 of the Constitution, counsel submitted that the Respondent singled out the petitioner yet others could access the store, no balanced inquiry was conducted and the publicly associating the petitioner with wrong doing undermined his professional standing, integrity and reputation, thus violating the petitioners right to human dignity. Counsel prayed for the petition to be allowed. **Respondent’s Submissions** As to whether the suit is statute barred reliance was placed on the decisions in **G45 Security Services (K) Ltd v Joseph Kamau & 468 others (2018) KLR, Beatrice Kahai Adagala v Postal Corporation of Kenya (2013) eKLR, Njunge v Muasya (2024) KEELRC 267 (KLR) and Attorney General v Andrew Maina Githinji & another (2016) KECA 817 (KLR)** to urge that the Petitioner waited for more than 6 years to file the instant suit and it was liable for dismissal. On Constitutional avoidance, counsel submitted that the alleged Constitutional violations were an alary to the termination and were neither independent nor self-standing and the dispute remained an ordinary claim. Reliance was placed on the Court of Appeal decision in **Gabriel Mutava & 2 others v Managing Director Kenya Ports Authority & another (2016) KECA 411 (KLR)** on Constitutional avoidance, **Elizabeth Mburu v Kenya Breweries Ltd (2014) eKLR, Maxwell Sifuna v Teachers Service Commission (2022) KEELRC 503 (KLR)** for the proposition that a party could not invoke the Constitution to avoid the limitation period. On alleged violation of the Petitioner’s Constitutional rights counsel cited on the decision in **Gwer & 5 others v Kenya Medical Research Institute & 3 others** on the burden of proof that who alleges must prove. That the Petitioner was offered the opportunity to be heard but declined and absconded duty. Reliance was placed on the decisions in **Social Services League Mp shah Hospital v Judith Apudo (2021) KECA 963 (KLR) Issak v I.E.B.C (2024) KEELRC 2517 (KLR) and Matilda, Tenge Mwachia v Kenya Industrial Estate Ltd & another (2021) KEELRC 1458 (KLR)** to urge that where an employee was afforded the opportunity to be heard but fails to seize the chance, the right to fair hearing is deemed spent, to urge that the termination of employment was justified. On malicious prosecution, counsel submitted that the Respondent’s role was merely reporting the matter to the police and other steps are taken up by the police. Reliance was placed on **Robert Okeri Ombeka v Central Bank of Kenya** to urge that the Police conducted their investigations and the Office of the Director of Public Prosecutions made an independent decision to charge the Petitioner over which the Respondent had no role. Counsel further submitted that the Petitioner could neither demonstrate that the Respondent instituted or carried on the criminal proceedings, acted without reasonable cause or that it was actuated by malice. Reliance was placed on the decisions in **Mbowa v East Mengo Administration (1992) CA v Nyaribo & another (2024) KEHC 807 (KLR),** on the elements of malicious prosecution and proof of malice in the case of a body corporate respectively. On reliefs, counsel submitted none was deserving and prayed for dismissal of the petition with costs to the Respondent. **Analysis** The Petitioner filed the instant petition dated 10th March 2025 on 8th April 2025. The Respondent entered appearance on 25th November 2025 and filed a Notice of Preliminary Objection dated 18th December 2025, on even date urging that the Petition was statute barred by dint of Section 89 of the Employment Act and the court had no jurisdiction to hear and determine the suit and after considering submissions by both parties and the law the court found that the matters raised by the notice required on assessment of facts and not pure points of law and dismissed the Notice of Preliminary Objection. Although the Respondent submitted on the issue, the Petitioner’s counsel did not perhaps because the Respondent did not raise it in its response since the court considered the applicability of Section 89 of the Employment to the circumstances of the case by dint of the Respondents Notice of Preliminary Objection and found that the issues raised required a factual analysis. The court considers the issue that the suit was statute barred as settled. Surprisingly, the facts of the case are largely uncontested except the manner in which the separation took place and although the petitioner made reference to his role and exemplary performance, he avoided the management and compliance audit and the annual physical inventory taken in December 2018 which triggered the processes which culminated in his summary dismissal, other than a casual reference of having been accused of theft of materials in late 2018. Documentary evidence provided by the Respondent revealed that a physical inventory taking took place in December 2018 and a report generated and the petitioner participated and signed the raw outcome of the verification. The court notes that the petitioner neither denied that the audit and physical count of items took place or that there were no discrepancies. Relatedly, although the petitioner did not make reference to the Notice to show cause, he was aware of the allegations and did not deny having received it. The Notice to show cause accused the petitioner of absence without proper justification and the missing stock. A response was required at the hearing on 24th January 2019. The court notes that the Respondent accorded the petitioner a very short notice to respond to the notice to show cause and attend a hearing. Similarly, he was not informed of the right to be accompanied by a fellow employee of his choice. That notwithstanding, the Petitioner neither responded to the notice to show cause nor attend the hearing, call or write back to the Respondent on concerns if any or report to the office, after all he was still an employee of the Respondent. Intriguingly, the Petitioner tendered no evidence on how his employment was terminated, including when he received the letter of dismissal and left the Respondent’s offices. The issues that commend themselves for determination are; 1. Whether the Respondent terminated the petitioner’s employment unlawfully or the Petitioner absconded duty. 2. Whether the Respondent violated the Petitioner’s Constitutional rights under Article 28, 41(1), 47(1) and (2) and 50 of the Constitution of Kenya. 3. Whether the Petitioner is entitled to the reliefs sought. 4. Whether reporting the Petitioner to the Police was malicious, unwarranted and abuse of legal process. On termination of employment, it is common ground that under the provisions of Sections 41, 43, 44, 45 and 47(5) of the Employment Act for a termination of employment to pass muster it must be demonstrated that the employer had a valid and fair reason to do so and conducted the process in accordance with a fair procedure. In other words, it must be proved that the employer had a substantive justification to terminate the employment and did so pursuant to a fair procedure as held by Ndolo J (as she then was) in **Walter Ogal Anuro v Teachers Service Commission (2013) eKLR.** See also **Naima Khamis v Oxford University Press (EA) Ltd (2017) eKLR.** The latter decision expounded that a termination of employment may be procedural or substantively unfair or both. There must be substantive and procedural fairness for a termination of employment to pass the test of fairness. As regards the reason for termination of the petitioners employment, it is discernible that the Respondent conducted a physical Inventory from late November and asset management audit and early December 2019 with the Petitioner’s active participation and discrepancy were uneathed as laptops, mobile phones and tablets items could be accounted for and although the petitioner reported to the office on 7th January 2019 and asked about the missing items, he excused himself on the premise that his daughter had been involved in an accident and left and did not report to the office again not even regularize his absence by provision of documentation. He offered no explanation for the missing items yet his duties included managing the ICT hardware through the Database, was the ICT hardware asset management subject matter expert, send and receive computer equipment (mainly coming in for repair) manage the equipment pool by giving out laptops, radios, module phones and satellite phones to held desk clients among other duties. The petitioner did not deny having received the Notice to show cause dated 22nd January 2019 and did not respond to it or request for more time to respond or prepare for the hearing and was a no show. Strangely, while the petition stated that employment was terminated unfairly on 4th January 2019, the Supporting Affidavit states that the summary dismissal took place on 31st January 2019. From the Respondent’s account of events, which the petitioner did not rebut or controvert, the Petitioner appear to have been unsettled by the audit and stock taking exercise and purposed not to respond or avail himself for any other purposes at his place of employment. Creditably, the Respondent accorded the Petitioner 14 days to report back to the workplace and explain his absence and the missing items prior to the notice to show cause dated 22nd January 2019 and did not terminate his employment until 31st January 2019. Flowing from the going, the court is satisfied and finds that the Respondent had a valid and fair reason to dismissal the petitioner summarily as it did. The requirements of Section 43 and 45(2) (a) and (b) the Employment Act there complied with. The letter of summary dismissal was clear that the Petitioner’s dismissal was on account of absence from duty consistent with Section 44 (4) (a) of the Employment Act which provides without leave or other lawful cause an employee absents himself from the place appointed for the performance of his work” As regards procedure, the provisions of section 45(2) (c) and 41 of the Employment Act prescribe the tenets of procedural fairness. Under section 41 of the Employment Act, the employer must be notified the reasons for which termination of employment was being considered, reason(s) for termination of employment, explanation of the reasons in a language understood by the employee and in the presence of an employee or shop floor representative of her/his choice, entitlement to a fellow employee of her or his choice and the representations made by the employee and/or that other person or both must be heard and considered in the deliberations. See **Postal Corporation of Kenya v Andrew K. Tanui (2019) eKLR.** It is not in dispute that the Respondent issued a Notice to show cause to the petitioner which had allegations of absence without authority and missing items. The Petitioner was aware of particulars of both charges on account of having participated in the physical stock taking on 6th and 7th December 2018 and being out of the work place from 8th January 2019. As adverted to elsewhere in this judgment, the petitioner neither responded to the Notice to show cause nor request for more time to respond or report on duty. He remained quiet. Finally, the Respondent had by the Notice to show cause invited the petitioner for a hearing on 24th January 2019 which he gave a wide berth with no response or attendance. A reading of the Notice to show cause reveals that the Respondent had acted reasonably by according the petitioner time to avail documentation to regularize his non attendance and it was this ground done that the petitioner’s employment was terminated. It is trite law that where an employer accords an employee an opportunity to be heard but the employee refuses, fails or neglects to take up the opportunity or raise whatever concerns or misgiving she or he may have had, the employee cannot thereafter be heard to say that she or he was denied the right to fair hearing as held in **Matilda Tenge Mwachia v Kenya Industrial Estate Ltd & another (Supra).** In the instance case, the Petitioner rebuffed the opportunity and did not report to the work place. As to whether the petitioner absconded duty, it is clear that he did as the Notice to show cause and the letter of summary dismissal reveal, evidence the Petitioner did not controvert. When the Petitioner sought leave to attend to his daughter who had been involved in an accident the respondent anticipated that he would report back on 8th January 2019 with supportive documents to regularise the days leave but he did not and abandoned the work place. It is trite law that an employer who alleges that an employee absconded duty is required to prove the same by a demonstration of the steps or reasonable actions taken to ascertain the whereabouts of the employee to resume duty. See **Evans Ochieng Oluoch v Njimia Pharmaceuticals Ltd** **(2016) eKLR.** In **Felista Acheha Ikatwa v Peter Otieno (2018) eKLR** Linnet Ndolo J (as she then was) held; *“The law is therefore well settled that an employer claiming that an employee has deserted duty must demonstrate efforts made towards getting the employee resume duty. At the very least, the employer is expected to issue a Notice to the deserting employee that termination of employment on the ground of desertion is being considered.”* See also in this regard **Stanley Omwoyo Onchieri v Board of Management Nakuru YMCA Secondary School (2015) eKLR, Bonface Francis Mwangi v B.O.M Iyego Secondary School (2019) eKLR** and **Simon Mbithi Mbane v Inter Security Services Ltd (2018) eKLR.** In the instant case, the Notice to show cause letter dated 22nd January 2019 clearly stated that the petitioner had not been in the office since 7th January 2019 and had been contacted by phone and email to avail documents to regularize leave but had not responded by 22nd January 2019 when the Notice to show cause was issued and did not respond to it. The evidence on records lays it bare that the Petitioner absconded duty which the law categorizes as a gross misconduct. The foregoing finding is further reinforced by the fact that the Petitioners Supporting Affidavit sworn on 10th March 2025 made no reference to where the petitioner was when the Respondent dismissed him summarily and how. As to whether the Petitioner’s right to human dignity, fair labour practices, fair action and right to fair hearing were violated by the Respondent, neither the Petition nor the Supporting Affidavit provided particulars or supportive evidence on how and to what extent the foregoing rights were violated as held in **Anarita Karimi Njeru v Republic (1979) KEHC 30 (KLR).** How for instance was the Petitioner’s right to fair labour practices under Article 41 (1) of the Constitution of Kenya infringed? It is trite law that he who asserts is required to establish the allegation by dint of Section 107, 108 and 109 of the Evidence Act. In **Macharia v Ndwiga, (2017) (KECA) 290 (KLR),** the Court of Appeal stated: *“…Section 107 of the Evidence Act, which deals with the burden of Proof in any case and aptly stated that it lies with the party who desires any court to give judgment as to any legal right or liability is for that party to show that the facts which he alleges his case depends upon exist. This is known as the legal burden…”* See also **Mumbi M’Nabea v David M. Macharia (2016) KECA 773 (KLR).** Based on the evidence on record, the court is satisfied that the Petitioner has failed to prove violations of any Constitutional right. On reporting the matter to the police and as adverted to elsewhere in this judgment, the Respondent filed a complaint with the police OBNo.27/5/2/2019 and after investigations by the police, the petitioner was charged by the office of the Director of Public Prosecutions which was satisfied that there was sufficient evidence to charge and secure a conviction and although the court found that the petitioner had a case to answer, he was ultimately acquitted on the ground that the prosecution failed to prove its case beyond reasonable doubt. Although the Petitioner alleged that the Respondent was malicious by initiating the criminal proceedings, the respondent only did so after dismissal and the Petitioner did not avail particulars of malice. The elements to be proved in an action for malicious prosecution were summarized by the East Africa Court of Appeal in **Mbowa v East Mengo District Administration (Supra)** as follows; 1. The criminal proceedings must have been instituted by the defendant, that is he was instrumental in setting the law in motion against the plaintiff. 2. The defendant must have acted without reasonable or probable cause. There must have been no facts. 3. The defendant must have acted maliciously with an improper and wrongful motive. 4. The criminal proceedings must have been terminated in the plaintiff’s favour. There must have been an acquittal of the charge. See also **Murunga v Attorney General (1979) KLR 138**. Although the Respondent set the law in motion by filing a complaint with the police, the police conducted its own investigation and based on the evidence the police recommended that the petitioner be charged and the decision to charge was made by the Office of the Director of Public Prosecutions (ODPP), a Constitutional office with extensive prosecutorial powers constitutional independence to commence criminal proceedings and discontinue the same at any stage before judgment is delivered. The police and the ODPP do not act on the whims and caprices of complainants. They make independent decisions based on the evidence at their disposal. However, the Respondent remained the initiator of the process. From the evidence on record, it is clear that the petitioner did not establish that the complaint was made without probable cause. In **Robert Okeri Ombeka v Central Bank of Kenya (Supra),** the court explained the element of reasonable or probable cause as follows; *“Successful defending a prosecution or law suit does not establish that the suit was brought without probable cause. It is the state of mind of the one commencing the arrest or imprisonment and not the actual facts of the case or the guilt or innocence of the accused which is at issue. Probable cause is determined at the time of subscribing a criminal complaint and it is unmaterial that the accused thereafter may be found not guilty.”* See also in this regard **Kagane v Attorney General & another (1969) EA 643, Hicks v Faukers (1878) Q.B.D. 167.** In the instant case the Petitioner tendered no evidence of the Respondents state of mind to establish absence of reasonable or probable cause. Finally, the Petitioner failed to evidentiary demonstrate that the complaint to the police was actuated by “malice,” evidence of ill will was necessary. The petitioner did not submit on this issue. From the foregoing, it is discernible that the instant petition is devoid of merit and it is accordingly dismissed with no orders as to costs. The Respondent is directed to issue a certificate of service to the Petitioner. **DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI ON THIS 13TH JULY, 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**