https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1504

 **REPUBLIC OF KENYA** **IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT** **NAIROBI** (ON Makau J on 4th June 2026) **CAUSE NO. E801 OF 2023** **JOHN MARK EKESA..................................................CLAIMANT** **-VERSUS-** **VISCAR INDUSTRIAL CAPACITY LIMITED..........1ST RESPONDENT** **SAFARICOM COMPANY LIMITED....................2ND RESPONDENT** **JUDGMENT** **Introduction** 1. By a Memorandum of Claim dated 26th August 2023 and filed on 4th October 2023, the Claimant sued the respondents for unfair and unlawful termination of his employment and prayed for the following:- 2. ***A declaration that the Respondents' actions since 26th April 2023 amount to the unlawful dismissal of the Claimant.*** 3. ***A declaration that the purported suspension letter dated 24th April 2023 was illegal, null and void.*** 4. ***An order that the dismissal letter dated 14th July 2023 be lifted and the Claimant be reinstated back to his position of employment as per his letter of appointment.*** 5. ***An order that the Respondent do pay to the Claimant Kshs. 2,034,000 salaries for 17 months.*** 6. ***A declaration that the Respondents have contravened the Claimant's rights under Articles 27, 28, 30, 41 and 47 of the Constitution.*** 7. ***A permanent injunction restraining the Respondents from breaching its contract of employment.*** 8. ***A permanent injunction to stop the Respondents from terminating the Claimant's services, or victimizing him in any way, for filing this suit.*** 9. ***An order that the Respondents pays the Claimant general damages.*** 10. ***Costs of the suit.*** 11. ***Interest.*** 12. ***Any other or further relief that this Honorable Court may deem fit to grant.*** 13. The 1st Respondent filed a Statement of Defence dated 7th May 2024 admitting that it employed the Claimant as an outsourced Fixed Solution Central Dispatch Engineer for the 2nd Respondent. It further admitted it dismissed the Claimant but averred that the same was for gross misconduct after following fair procedure. It denied that the termination was malicious or unlawful and it prayed for dismissal of the suit with costs. 14. The 2nd Respondent filed a Response to Claim dated 16th May 2024 denying existence of any employer-employee relationship between the Claimant and itself. It further denied any role in the dismissal of the Claimant or ever contravening his rights under the Constitution or the Employment Act. Therefore, it prayed for dismissal of the suit against it with costs. **Evidence** 1. The Claimant testified as CW1 by adopting his witness statement dated 26th August 2023 as his testimony in chief. He also produced 7 documents in his list filed on 4th October 2023, as exhibits. In brief, his testimony was that he was employed by the 1st Respondent to work for the 2nd Respondent as a Fixed Dispatch Engineer for a period of two years. Subsequently, he was promoted to Home Network Optimization Engineer and signed an improved contract for two years in January 2023. 2. In May 2023, he was suspended from work for alleged misconduct. The suspension was extended till July 2023 when he was dismissed on allegation that he was involved in fraudulent activities. The dismissal occurred seventeen (17) months left before the expiry of his fixed term contract. 3. He stated that before the dismissal, he was invited by the 1st Respondent to attend a disciplinary hearing on 30th June 2023 vide a letter dated 27th June 2023, which did not give details of his misconduct. By an email dated 29th June 2023, he wrote to the 1st respondent asking whether he could be accompanied by another employee but no response was elicited. 4. He further testified that he attended the hearing alone and upon arrival, he was just given a paper to write down what transpired. After submitting his written explanation, he was told go and wait for the verdict. He maintained that he was never accorded any hearing as required by the law as the alleged misconduct was never explained to him, and he was not allowed to be accompanied by a witness. 5. He stated that in July the HR invited him to a video call via Zoom where she informed him that his contract had been terminated, and asked him to undertake clearance without burning bridges. 6. On cross-examination he admitted that he signed a letter of appointment dated 16th January 2023. He further admitted that he was employed by the 1st Respondent who was also paying his salary, and who terminated his employment. He confirmed that the 2nd Respondent never employed him, paid him, or terminated his services. 7. He further admitted that during the hearing on 30th June 2023, he wrote a letter admitting that he attended to clients without any tickets being raised. He further admitted that during a video call meeting with the 1st Respondent, he repeated the said admission of attending clients without any tickets. He also admitted that during suspension he received all his salary and allowances that he was entitled to. 8. In re-examination, he clarified that the video call meeting was just for giving him a verdict. He stated that Mr. Paul Mbaka from Safaricom said that his work was just to communicate a termination letter and the verdict. He reiterated that during suspension he received his normal salary. Finally, he clarified that he was employed by the 1st Respondent but working at Safaricom. 9. The 1st Respondent did not file any witness statement and its counsel purported to rely on the documents filed with the defence and closed its case without calling any witness. 10. The 2nd Respondent called its Employee and Labour Relations Manager, Mr. Odhiambo Ooko, as its witness. He testified as RW1 and adopted his witness statement dated 31st July 2024 as his evidence in chief. He also produced 8 documents in the list dated 22nd May 2024 as exhibits. 11. In brief, he testified that the Claimant was not an employee of the 2nd Respondent and there was no employment relationship with the company. He maintained that the company never employed the Claimant, or paid his salary, or terminated the Claimant. 12. On cross-examination reiterated that the Claimant was never employed by the 2nd Respondent, but his services were offered through his employer, the 1st Respondent. 13. He further stated that he was unaware of any meeting between the Claimant and the Ethics Department of the 2nd Respondent. 14. After the close of the hearing all the parties filed written submissions. The Claimant’s written submissions are dated 19th November 2025, the 2nd Respondent’s are dated 24th November 2025, while the 1st Respondent’s are dated 22nd January 2026. 15. Having considered the pleadings, evidence, and submissions, the following issues fell for determination:- 16. Whether there lies any claim against the 2nd Respondent by the Claimant. 17. Whether the termination of the Claimant’s employment by the 1st Respondent was unfair and unlawful. 18. Whether the Claimant is entitled to the reliefs sought. **Analysis** * 1. **claim against the 2nd Respondent** 1. The 2nd Respondent submitted that for a claim of unfair termination to be sustained, it has to be established that an employer-employee relationship existed between the parties. It was urged that there was no dispute that the Claimant was employed by the 1st Respondent and not the 2nd Respondent. Consequently, it was submitted that the claim against the 2nd respondent is without any basis. 2. I have carefully considered the evidence on record. The Claimant admitted during cross-examination that he was employed by the 1st Respondent, who also paid his salary. He further admitted that his employment was terminated by the 1st Respondent. He was also candid that the 2nd Respondent never employed him, paid him, or terminated his services. 3. In view of the said admission by the claimant that no employer-employee relationship existed between him and the 2nd Respondent, I find that the claim for unfair termination cannot be sustained as against the 2nd Respondent. Consequently, I hold that the suit against the 2nd Respondent lacks merits and is dismissed. 1. **unfair and unlawful by the 1st Respondent** 4. The Claimant contended that the termination of his employment was unfair and unlawful but the 1st Respondent took a different view. Section 45(2) of the Employment Act, 2007 provides that:- ***“(2) A termination of employment by an employer is unfair if the employer fails to prove:*** ***(a) that the reason for the termination is valid;*** ***(b) that the reason for the termination is a fair reason­­-*** ***(i) related to the employee's conduct, capacity or compatibility; or*** ***(ii) based on the operational requirements of the employer; and*** ***(c) that the employment was terminated in accordance with fair procedure.”*** **Reason** 1. The 1st Respondent submitted that the Claimant's conduct satisfied the threshold for gross negligence as defined under Section 44(4)(c) of the Employment Act, 2007. Section 44(4)(c) permits summary dismissal where an employee:- ***“carelessly and improperly performs any work which from its nature it was his duty to perform carefully and properly.”*** 1. The 1st Respondent further relied on Section 44(4)(g) of the Employment Act which allows for summary dismissal if an employee:- ***“commits, or on reasonable and sufficient grounds is suspected of having committed, a criminal offence against or to the substantial detriment of his employer or his employer's property.”*** 1. The 1st Respondent also relied on Section 14 of the Computer Misuse and Cybercrimes Act, 2018 which criminalizes unauthorized access or modification of computer data. 2. The 1st Respondent submitted that the forensic evidence established that 38 customers were used to connect to 90 routers, an anomaly that was not a minor error but a significant breach that caused substantial detriment to the Client (Safaricom) through revenue leakage. The claimant denied the alleged misconduct and averred that the details of the alleged infraction was never explained to him. 3. Section 43 (1) and 45 (2) of the Employment Act places a burden of proving the reason for the termination of an employee’s contract on the employer. In this case the 1st Respondent never adduced evidence to prove the validity of the reason for dismissing the Claimant. Consequently, it failed to discharge the said burden of proof. 4. However, the 2nd Respondent adduced evidence to show that the Claimant illegally facilitated fibre home connections. It produced Claimant’s handwritten admission that he accessed clients’ links without tickets. The Claimant admitted in evidence that he wrote the said document on the day he attended the disciplinary hearing. 5. In the said document, the Claimant indicated that he did so in good faith to assist the clients after a tech on the ground called him about complaints of service problems. The above admission aligns with the dismissal letter which stated as follows:- ***“SUMMARY DISMISSAL FOR INVOLVEMENT IN FRAUDULENT CONNECTION OF ROUTERS*** ***I hope this letter finds you well. It is with deep regret and disappointment that I must inform you that your employment with us is terminated with immediate effect. This decision has been made following a thorough investigation into your involvement in the fraudulent connection of routers within the course of your duties as Fixed Solutions Central Dispatch Engineer at Safaricom.*** ***As an employee, you were entrusted with the responsibility to act with honesty, integrity, and in the best interest of the company. However, the evidence collected during the investigation clearly indicates that you engaged in fraudulent activities by illicitly connecting routers, a serious violation of the trust placed in you and a breach of our code of conduct.*** ***Fraudulent activities not only harm the reputation of our organization but also compromise the security and trust of our customers and stakeholders. Viscar has always strived [sic] to maintain the highest ethical standards, and any breach of these standards is unacceptable and will not be tolerated.*** ***In light of the severity of your actions and the significant impact they have had on the company, we have decided to terminate your employment without any severance pay or benefits. This decision has been made after careful consideration of all the facts and in accordance with the applicable labour laws and regulations.”*** 1. The Claimant admitted that he accessed clients’ links without tickets after being called by the techs on the ground. The said admission confirms his involvement in fraudulent connection of routers contrary to the standard procedures of the service provider. Consequently, I find that the evidence on record is sufficient proof that the claimant committed or he was reasonably suspected to have committed the misconduct cited in the dismissal letter. **Procedure** 1. Section 45(2)(c) of the Employment Act places on the employer the burden of proving that the termination of the employment contract was done in accordance with fair procedure. Section 41 of the Act sets out the procedure for terminating employment for misconduct as follows:- ***“(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.*** ***(2) Notwithstanding any other provision of this Part, an employer shall, before terminating the employment of an employee or summary dismissing an employee under section 44(3) or (4) hear and consider any representations which the employee may on the grounds of misconduct or poor performance, and the person, if any, chosen by the employee within subsection (1), make.”*** 1. The above procedure is mandatory. The employer must accord the employee an oral hearing, explain the misconduct in a language the employee understands, allow the employee to have a representative present and consider the employee's representations and those of his companion before making a decision. 2. The Claimant contended that he was not accorded a fair hearing. He stated in his witness statement that he was not explained or allowed to come along with a witness as required by the law. He contended that he wrote an email enquiring whether he could be accompanied by a witness but the same was not responded to. 3. He stated that he was not accorded any hearing on that particular day or allowed to ask any question. He was just asked to write down what transpired and later received a call from HR to join a zoom meeting, and during that zoom meeting, where, was informed that the session was to convey a message for termination of his contract. 4. The 1st Respondent never adduced any evidence to rebut the Claimant’s evidence that he was dismissed without being accorded a fair hearing. The 2nd Respondent denied any involvement in the dismissal of the Claimant as that was not within its mandate. 5. I have carefully considered the evidence on record including the Claimant’s email inquiring whether he could be accompanied by a witness. This email is listed as document number 4 in the Claimant's list of documents and it was ignored by the employer. 6. The invitation to the hearing was by an email dated 27th June 2023 and as rightly observed by the Claimant, it lacked details of the charges he would face during the disciplinary hearing. Also, the 1st Respondent did not rebut the Claimant’s evidence that it never accorded him a fair hearing fashioned along the procedure prescribed under section 41 of the Employment Act. It only required the Claimant to write what had transpired. No minutes of the hearing was produced as exhibits. 7. In **Kiliopa Omukuba Okutoyi v. Telkom Kenya Limited [2012] KEELRC 22 (KLR)** the employer conducted disciplinary hearing by written submission and Mbaru J held that:- ***“However, the hearing by written submissions by the respondent does not meet the threshold envisaged by the Employment Act and also the respondent’s human resource policy manual. Under the Act, what is stipulated is a hearing and a consideration of any representation …*** ***Procedure adopted by the employer in reaching decision to dismiss the employee was unfair in the circumstance and the same was not in compliance with the law. The law requires that the employee be heard and informed of his right to call a representative or be accompanied by a person of his choice.”*** 1. The burden of proving fair procedure under Section 45(2)(c) of the Employment Act rests on the employer. As noted above the 1st Respondent did not discharge that burden because it never called any witness to give evidence before this court. Therefore, I find that, despite the existence of a valid reason for terminating the Claimant's employment, the failure to follow a fair procedure as required under Section 41 of the Employment Act rendered termination his employment unfair within the meaning of section 45 of the Act. **Reliefs** 1. The primary prayer by the Claimant was for an order that the dismissal letter dated 14th July 2023 be lifted and the Claimant be reinstated back to his position of employment. Section 12(3)(viii) of the Employment and Labour Relations Court Act provides that the court may make:- ***“An order for reinstatement of any employee within three years of dismissal, subject to such conditions as the court thinks fit to impose under circumstances contemplated under any written law.”*** 1. The dismissal of the Claimant occurred on 14th July 2023 which is within the period of three years from the time of separation. However, the Claimant did not demonstrate that an order of reinstatement is practicable. In my view the trust between the Claimant and the Respondent’s, has broken down due to the misconduct that led to his dismissal. I will therefore consider the alternative reliefs availed to him under section 49(1) of the Employment Act. **Compensation and salary in lieu notice** 1. The Claimant prayed for compensation under Section 49(1) of the Employment Act. He also claimed salary in lieu of notice of Kshs. 110,000. 2. The 1st Respondent submitted that the Claimant received all terminal dues and accrued benefits as per company procedures, while the 2nd Respondent contended that it is not liable to compensate the claimant for want of an employment relationship with him. 3. The 2nd Respondent further submitted that the Claimant entered into an employment contract with the 1st Respondent dated 16th January 2023 for a fixed term ending on 31st December 2024. Therefore, it urged that if the court found that the Claimant was unlawfully terminated, the Claimant should only be entitled to 6 months’ salary for the remainder of the term contract as compensation, and not 17 months. 4. Having found that the claimant was unfairly dismissed by the 1st Respondent, I hold that he is entitled to salary in lieu of notice plus compensation for the unfair termination under section 49 of the Employment Act. Taking into account the circumstances of the case, the length of service expected time of service under his contract and the Claimant's contribution to the dismissal through misconduct, I award him three months gross salary as compensation for unfair termination. His gross salary was Kshs. 110,000 per month, and therefore three months’ salary compensation is Kshs. 330,000. 5. As regards salary in lieu of notice, clause 28.1 of the Claimant’s contract of employment provided for a notice of one month before termination. Therefore, I award him Kshs. 110,000 as salary in lieu of notice. **Salary for July 2023** 1. There is no dispute that the Claimant worked for 14 days in July 2023 before his dismissal on 14th July 2023. His monthly salary was Kshs. 110,000 equaling to a daily of Kshs. 3,666.67. Therefore, I award him to Kshs. 51,333.33 as salary for the 14 days worked in July 2023. **Compensation for the remainder of the contract** 1. The Claimant prayed for Kshs. 1,870,000 being salaries for 17 months remaining on his contract from 14th July 2023 to 31st December 2024. There is no doubt the contract was prematurely terminated. However the said breach has been sufficiently compensated above under Section 49 (1) of the Employment Act. Any award of salary for the remainder of the contract term would, in the circumstances of the case, amount to double compensation to the Claimant. 2. The rest of the prayers sought, save for costs and interest, are declined because they are either overtaken by events or already covered by the reliefs awarded above. **Conclusion** 1. I have found that the termination of the Claimant’s employment by the 1st Respondent was unfair within the meaning of Section 45 of the Employment Act. I have further found that the Claimant has no claim against the 2nd Respondent as there was no employer-employee relationship. I have also found that the Claimant is entitled to the some of the reliefs sought against the 1st Respondent. Consequently, I enter Judgment for the Claimant against the 1st Respondent as follows:- 1. Salary in lieu of notice.................................Kshs. 110,000/- 2. Compensation for unfair termination..........Kshs. 330,000/- 3. Salary for 14 days worked in July 2023.........Kshs. 51,333.33/- **Total.................................................Kshs. 491,333.33** * 1. The award is subject to statutory deductions 2. The Claimant is awarded costs and interest at court rate from the date of the judgement till payment in full. 1. The suit against the 2nd Respondent is dismissed with no costs because it involved itself in the disciplinary process of the Claimant. It even issued suspension letters describing the Claimant as its employee. Any reasonable Claimant in such circumstances would join the 2nd Respondent to the suit. **DATED SIGNED AND DELIVERED VIRTUALLY IN OPEN COURT AT NAIROBI THIS 4TH DAY OF JUNE 2026.** **ONESMUS MAKAU** **JUDGE** **Appearance:** Rauto for Claimant Wainaina for Samali for 1st Respondent Abwao for 2nd Respondent