https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2182

 **REPUBLIC OF KENYA** **IN THE EMPLOYMENT *&* LABOUR RELATIONS** **COURT OF KENYA AT KISUMU** **CAUSE NO. 411 OF 2020** RISA SADERA ERICKSON….…………………………..……..**CLAIMANT** **VERSUS** UNIVERSAL CORPORATION LTD..................………..….**RESPONDENT** **JUDGMENT** 1. The Claimant instituted this suit via a Memorandum of Claim dated 5th August 2024 alleging wrongful and unfair dismissal from employment. He seeks the following reliefs: * + 1. A declaration that his termination was unlawful and/or unfair; 2. Kshs. 1,117,224/- in 3 months' salary in lieu of notice; 3. Kshs 335,167.20 for untaken leave days; 4. Kshs 4,468,896/- in 12 months compensation for unlawful termination; 5. Kshs 8,937,792/- in 24 months Compensation for the restrictive and binding clause set in page 89 of Human Resources Manual, in alternative to – Reinstatement; 6. Kshs. 1,800,000/- in medical cover; 7. A certificate of service; 8. Any other relief the court may deem fit to grant; and 9. Costs and interest of the suit at court rates. 2. The Claimant's case is that he was employed by the Respondent as a Brand Manager on permanent terms with effect from 2011 and discharged his duties without incident until May 2019, when the Respondent abruptly transferred him to the position of Finished Goods Store Manager, later referred to as Warehouse Manager. According to the Claimant, the transfer was effected through a letter dated 6th May 2019 requiring him to assume his new role within three days, contrary to the Respondent's Human Resource Manual, which entitled employees to fourteen days' notice. He contends that he neither received the requisite training nor access to the system transaction codes necessary for the performance of his new responsibilities and was instead compelled to rely on colleagues to execute his duties. Although the Respondent assured him that his job description would be reviewed, that he would receive training, and that he would be issued with a promotion letter, none of these promises was fulfilled. 3. The Claimant avers that his transfer marked the beginning of a sustained campaign of harassment and victimisation by the Respondent's management. He states that despite lacking the training and system access necessary for his new role, he was blamed for the Respondent's poor performance and criticised for system deficiencies beyond his control. He further alleges that he was repeatedly required to respond to issues that had already been addressed, inundated with correspondence outside the established chain of command, and subjected to unwarranted scrutiny by senior management. Matters came to a head after he informed the Respondent's senior leadership WhatsApp group that he would be unable to attend a meeting scheduled for 30th November 2019, following which he was reported negatively to the Managing Director by the Head of Technical Operations. He was thereafter summoned to explain allegations of poor performance and, despite attempts by the Human Resource Manager to convene a meeting to resolve the differences, the proposed meeting never took place. 4. The Claimant further states that the Respondent subsequently escalated the matter by issuing him with a show cause letter dated 23rd December 2019 accusing him of insubordination in relation to a Performance Improvement Plan (PIP). He responded to the allegations and appeared before the disciplinary committee on 6th January 2020. Thereafter, he was directed to remain away from work until 4th February 2020, when he received a letter summarily dismissing him from employment. Dissatisfied with the decision, he sought copies of the Respondent's Human Resource Manual, organogram and employment policy to facilitate an appeal. However, he contends that the appeal hearing held on 20th February 2020 was conducted by a committee that was neither independently constituted nor compliant with the Respondent's prescribed appeal procedure, as the very officers involved in his dismissal participated in determining his appeal. He therefore maintains that the disciplinary and appellate processes were tainted by malice, discrimination and procedural unfairness. It is the Claimant's case that the Respondent's actions contravened the Constitution, the Employment Act and its own Human Resource Manual. He alleges that the Respondent unlawfully transferred him without adequate notice or training, subjected him to harassment and discrimination, failed to issue the requisite warnings or counselling before commencing disciplinary action, suspended him without justification or investigation, disregarded the prescribed disciplinary and appellate procedures, and maintained a restrictive post-employment clause that unfairly limited his future employment prospects after terminating his services. 5. In opposition to the suit the filed a Memorandum of Response dated 15th June 2021. Its case is that the Claimant was employed as a Brand Manager on 24th October 2011 under the terms of his letter of appointment and the Respondent's Human Resource Manual. It states that in May 2019 it undertook a restructuring exercise during which the brand management function was transferred to its corporate office in India, resulting in the Claimant's redeployment to the position of Warehouse Finished Goods Store Manager. The Respondent maintains that the transfer did not substantially alter the nature of the Claimant's duties so as to require fresh training and denies that the Claimant was inadequately facilitated in his new role. The Respondent avers that the Claimant's employment difficulties predated the restructuring, having received warning letters and been placed on a Performance Improvement Plan following an unsatisfactory performance appraisal for 2018. According to the Respondent, the disciplinary process that culminated in the Claimant's dismissal arose not from his performance but from acts of gross insubordination, including his refusal to attend a critical month-end management meeting dated 30th November 2019 despite instructions from the Managing Director and his refusal to cooperate with the Performance Improvement Plan process. The Respondent further states that after the Claimant failed to satisfactorily respond to a show cause letter, he was invited to a disciplinary hearing where he was accorded an opportunity to be heard before being summarily dismissed on 4th February 2020. It adds that the Claimant subsequently lodged an appeal, but disrupted the appeal proceedings through unruly conduct, thereby frustrating the committee's work. It is therefore the Respondent's position that the Claimant's summary dismissal was founded on lawful and valid grounds, was effected in accordance with the Employment Act, 2007 and the Respondent's Human Resource Manual, and was neither malicious nor procedurally unfair. Consequently, it contends that the Claimant is not entitled to the reliefs sought and urges the Court to dismiss the claim with costs. 6. Upon close of hearing parties filed written submissions. Claimant's Submissions 1. In his submissions the Claimant identifies the following issues for determination: * + 1. Whether the Respondent adhered to its internal disciplinary mechanism and Human Resource Manual; 2. Whether the Respondent complied with sections 41, 43 and 45 of the Employment Act, 2007 in effecting summary dismissal; 3. Whether the Respondent proved valid and fair reasons to warrant summary dismissal; 4. Whether the Respondent discharged the burden and standard of proof required in cases of summary dismissal; 5. Whether the Claimant discharged his burden of proof on a balance of probabilities; and 6. Whether the remedies sought by the Claimant ought to issue. 2. On the first issue the Claimant submits that the Respondent failed to comply with its own Human Resource Manual, thereby rendering the disciplinary process procedurally unfair. He submits that the mandatory disciplinary advice slip was never prepared or forwarded to the Human Resource Department as required under the Manual. He further submits that the appeal committee was improperly constituted, as key officers prescribed under the Manual were excluded, while the Respondent's witness, who had signed the dismissal letter, sat on the appeal panel in violation of the rule against bias (*nemo judex in causa sua*). Consequently, the disciplinary and appellate processes were biased, contrary to the rules of natural justice, Articles 47 and 50 of the Constitution, and sections 41, 43 and 45 of the Employment Act. In support of his position the Claimant cites **Mary Chemweno Kiptui *v* Kenya Pipeline Company Limited** **[2014] eKLR**, where it was held that failure to comply with the procedural safeguards under section 41 of the Employment rendered the entire disciplinary outcome unfair. Further reliance is placed on **Walter Ogal Anuro *v* Teachers Service Commission** **[2013] eKLR**, which underscored both substantive justification and procedural fairness for termination to be considered fair. 3. On the second issue, the Claimant submits that the Respondent failed to satisfy both the substantive and procedural requirements prescribed under sections 41, 43 and 45 of the Employment Act. He asserts that the reasons advanced for his dismissal shifted from poor performance to insubordination, incompatibility and rudeness, while some allegations relied upon during the disciplinary process were never contained in the show cause letter, thereby denying him an opportunity to respond. He contends that the Respondent failed to accord him the minimum procedural safeguards required before termination. The Claimant relies on **Walter Ogal Anuro *v* Teachers Service Commission** **[2013] eKLR**; **Naima Khamis *v* Oxford University Press (EA) Limited** **[2017] eKLR**; **Postal Corporation of Kenya *v* Andrew K. Tanui** **[2019] eKLR**; **Kenfreight (E.A.) Limited *v* Benson K. Nguti** **[2016] eKLR**; **Sidumo *&* another *v* Rustenburg Platinum Mines Ltd** **[2007] ZACC 22**; and **Ridge *v* Baldwin** **[1964] AC 40**, all of which underscore the need for both procedural and substantive fairness in termination of employment. 4. On the third issue, the Claimant submits that the Respondent failed to establish valid and fair grounds to justify summary dismissal. He asserts that the allegations of insubordination were unsupported by credible evidence, noting that the alleged complainant was never called as a witness and no explanation was offered for that omission. He urges the Court to draw an adverse inference against the Respondent for withholding material evidence and submits that the evidentiary burden imposed under section 43 of the Employment Act was not discharged. In support, the Claimant relies on **Pius Machafu Isindu *v* Lavington Security Guards Limited** **[2017] eKLR**; **Bukenya *&* others *v* Uganda** **[1972] EA 549**; **Wisniewski *v* Central Manchester Health Authority** **[1998] PIQR P324**; and **Sidumo *&* another *v* Rustenburg Platinum Mines Ltd** **[2007] ZACC 22.** 5. On whether he had discharged his burden of proof, the Claimant submits that he proved his case on a balance of probabilities through consistent oral and documentary evidence. He contends that the Respondent merely sought to retrospectively justify an already predetermined decision to dismiss him by relying on allegations such as the refusal to attend the managerial meeting on 30th November 2019 that was absent from both the show cause letter and the dismissal letter. He further submits that he established he was transferred to an entirely different role without proper induction, training or system access, and that the disciplinary process was irregular, predetermined and contrary to both the Employment Act and the Respondent's Human Resource Manual. He contends that the Respondent's witness made material concessions during cross-examination, including admitting procedural irregularities like filling the discipline slip once the need for discipline arises, thereby reinforcing his case. The Claimant relies on **Hillary Isindu *v* Ace Africa (Kenya) Limited** **[2023] KEELRC 993 (KLR**). 6. On whether the Claimant is entitled to the reliefs sought, The Claimant submits that the Respondent violated Articles 41 and 47 of the Constitution and sections 41, 43 and 45 of the Employment Act by dismissing him without valid reasons and without observing a fair disciplinary process. He contends that the Respondent failed to prove lawful grounds for summary dismissal, conducted a biased and procedurally defective disciplinary and appeal process, and failed to discharge its statutory burden of proof. Accordingly, he submits that he has established that his dismissal was unlawful and unfair and urges the Court to grant the reliefs sought in the Memorandum of Claim, together with costs and interest. Respondents' Submissions 1. The Respondent identifies the following issues for determination: * + 1. Whether the Claimant's termination was procedurally and substantively fair and lawful; and 2. Whether the Claimant is entitled to the remedies sought. 2. On the first issue the Respondent submits that the Claimant's summary dismissal was founded on valid and fair reasons within the meaning of sections 43, 44 and 45 of the Employment Act. It contends that the dismissal arose solely from the Claimant's acts of gross insubordination and disobedience of lawful instructions issued by senior management, and not from the Performance Improvement Plan (PIP). According to the Respondent, although the Claimant had previously been subjected to a PIP, the disciplinary proceedings were triggered by his refusal to comply with lawful managerial directives, including his failure to attend a mandatory month-end management meeting dated 30th November 2019 despite being expressly directed by the Managing Director to do so. The Respondent further submits that the Claimant's transfer to the position of Warehouse Manager did not fundamentally alter the nature of his duties so as to require specialized training. It argues that, as a senior manager, the Claimant was expected to acquaint himself with the operational systems and effectively discharge his managerial responsibilities. It further contends that the Claimant seamlessly assumed his new duties, submitted daily timesheets and performed his managerial functions, thereby undermining his assertion that he lacked the requisite training or support. The Respondent relies on **Joseph Nzomo Munyenge *v* Auto Express Limited [2018] eKLR**, where the Court held that an employee's refusal to obey a lawful command constitutes gross misconduct warranting summary dismissal under section 44 of the Employment Act. The Respondent submits that the decision affirms that while dismissal may appear harsh, an employer is entitled to summarily dismiss an employee who deliberately disregards lawful instructions issued by persons in authority. 3. As concerns procedural fairness, the Respondent submits that it fully complied with section 41 of the Employment Act before dismissing the Claimant. It asserts that the Claimant admitted receiving the show cause letter dated 23rd December 2019, attending the disciplinary hearing on 6th January 2020 and subsequently lodging an appeal against the dismissal. According to the Respondent, the Claimant was informed of the allegations against him, afforded an opportunity to defend himself and to be accompanied by a fellow employee, but elected not to exercise that right. It highlights the fact that the Claimant refused to respond to the show cause letter, instead engaging in back and forth with colleagues. It further submits that, although an appeal committee was constituted, the Claimant frustrated the proceedings by launching personal attacks against the committee instead of meaningfully prosecuting his appeal. The Respondent contends that the minutes of the disciplinary proceedings demonstrate that the Claimant was accorded an opportunity to make representations before the decision to summarily dismiss him was reached. It therefore maintains that the disciplinary process complied with both its Human Resource Manual and the statutory requirements of procedural fairness. The Respondent relies on **Postal Corporation of Kenya *v* Andrew K. Tanui** **[2019] eKLR**, where the Court of Appeal held that section 41 of the Employment Act prescribes the minimum procedural safeguards an employer must observe before terminating employment. The Court emphasized that an employer must explain the allegations to the employee, permit the employee to be accompanied by a fellow employee or union representative, and consider the employee's representations before making a decision. The Respondent submits that these safeguards were fully observed in the present case. The Respondent also relies on **Langat *v* Unilever Tea Kenya Limited (Cause E004 of 2021) [2022] KEELRC 1238 (KLR) (21 July 2022) (Judgment)**, wherein the Court reaffirmed the principles set out in **Anthony Mkala Chitavi *v* Malindi Water *&* Sewerage Company Limited** **[2013] eKLR** in which the Court held that procedural fairness requires an employer to notify an employee of the allegations against him, afford adequate opportunity to prepare and present a defence, and consider the employee's representations before reaching a decision. The Respondent submits that it complied with each of these procedural requirements. 4. On entitlement to the remedies sought, The Respondent submits that, having established that the Claimant's dismissal was both substantively justified and procedurally fair, none of the remedies sought is available to him. It further submits that the Claimant's conduct before the appeals committee, where he allegedly behaved in a rowdy and unruly manner, was consistent with the conduct that led to the disciplinary proceedings and undermined the credibility of his evidence before the Court. 5. On the specific reliefs sought, the Respondent submits that the prayer for a declaration of unlawful termination should fail because the dismissal was lawful and conducted in accordance with the Employment Act. It further contends that the Claimant is not entitled to three months' salary in lieu of notice because both his contract and the Human Resource Manual provided for one month's notice, while his employment was terminated through summary dismissal. The Respondent also argues that the claims for accrued leave and salary for days allegedly worked in February 2020 were not proved by evidence. 6. Regarding compensation for unfair termination, the Respondent submits that no award is warranted since the dismissal was lawful and fair. It further contends that the claim for twenty-four months' compensation arising from the restrictive covenant is unsupported in law because the confidentiality clause 140.15 contained in the Human Resource Manual is an ordinary and enforceable contractual term which the Claimant accepted during his employment. As regards reinstatement, the Respondent relies on **James Andako *v* National Industrial Training Authority [2021] KEELRC 525 (KLR)**, where the Court held that reinstatement is an exceptional remedy, available only within three years and in appropriate circumstances. It submits that those circumstances do not arise in the present case. 7. Finally, the Respondent submits that the Claimant's certificate of service has always been available for collection upon completion of the requisite clearance process and urges the Court to dismiss the entire claim with costs and interest in its favour. Disposition 1. The Claimant asserts his employment with the Respondent was terminated without due process. The Respondent on the other hand asserts it gave the Claimant the procedural fairness in terms of section 41 of the Employment Act. The Claimant served as a brand manager for the Respondent before his May 2019 transfer to the position of Finished Goods Store Manager. The position was later renamed to Warehouse Manager. The Claimant asserts there was no training for the new role which led to the poor performance. 2. The Respondent showed the PIP the Claimant was subjected to and though the matrices are appropriate, the skills for the execution of the job of warehouse manager differ remarkably from those of a brand manager whose primary role is to oversee a company's public image, help in crafting long-term positioning strategies to ensure brand visibility, as well as ensuring that all marketing efforts by the company align with consumer expectations in order to drive sales. The job of a warehouse manager on the other hand, relates to overseeing the daily operations of a store, managing inventory, supervising staff at the warehouse, coordinating logistics and ensuring the supply chain process is seamless. This requires skills in the operations aspect of the company while a brand manager role is more of a marketing role. 3. It is my finding that the Claimant was not properly trained for the role he was required to serve in and therefore the Respondent set him up for failure by redesignating him to a role he was ill equipped for. This resulted in poor performance as one cannot expect a person who is not skilled in an area to perform properly. In any event, it was evinced before the Court there were workplace dynamics at the Respondent that militated against the proper execution of roles subsequently leading to poor performance as the Claimant's supervisor was intransigent leading to the misalignment being acutely evident. 4. The Respondent did indeed offer the Claimant a hearing but it would seem the deck was stacked against him as the people who were determined to remove him from office were active participants in the inquisitorial process at the disciplinary committee. The Claimant on his part did not make things easier on appeal as he fought hard against the appeal being determined leading to the appeal panel upholding the decision to terminate. The Respondent therefore did not avail the Claimant the safeguards that would lead this Court to find there was procedural and substantive fairness in the discipline process. The Respondent ensured the procedural aspect was well taken care of. However, on substantive fairness, the Respondent fell short. This leads to the finding by the Court that the termination though procedurally executed was substantively unfair. Having found unfairness, it is clear the Respondent should have issued notice and terminated the services of the Claimant instead of the shortcut it found in a summary dismissal without notice. The Claimant is not entitled to any medical cover whilst out of the Respondent's employ. The Claimant is not entitled to reinstatement as the bad blood between him and the superiors at the Respondent would result in frustration at the workplace were reinstatement ordered. In any event, none can issue even if the Court was minded to order one as the period that has lapsed since the Claimant left would not comport with section 49 of the Employment Act. The Court finds that compensation instead will suffice. 5. The Respondent further withheld the Claimant's certificate of service despite being aware of the demands for it by the Claimant. It is not enough for the Respondent to assert in pleadings that the certificate was always available for collection. No evidence was led of communication imploring the Claimant to collect the certificate of service. Notably, even after the filing of the suit, the Respondent has kept the certificate from 2020 to date. One wonders whether there was intention to issue it in the first place. The Court does not think that compensation for the maximum 12 months is available as the Claimant contributed in part to the decision of the disciplinary panel being upheld on appeal. I therefore will order only 8 months compensation. The Claimant will also have costs of the suit together with interest on the sums awarded at court rates from the date of judgment till payment in full. 6. In the final analysis I enter judgment for the Claimant against the Respondent for: 1. A declaration do and is hereby issued that the Claimant's termination was unlawful and unfair; 2. Kshs. 1,117,224/- in 3 months' salary in lieu of notice; 3. Kshs. 335,167.20 for leave days not taken; 4. Kshs 2,979,264/- being 8 months compensation for unlawful termination; 5. Interest at court rates on the sums in a), b), c) and d) above from the date of judgment till payment in full. 6. Issuance of the certificate of service within 7 days. The certificate must be in strict compliance with section 51. Should the Respondent not issue the certificate within the 7 days, there will be a Kshs. 10,000/- penalty for each day the Respondent holds the certificate. 7. Costs of the suit. It is so ordered. **Dated and delivered at Kisii this 29th day of July 2026** **Nzioki wa Makau, MCIArb.** **JUDGE**