https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2119

 **REPUBLIC OF KENYA** **IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT** **NAIROBI** (ON Makau J on 21st July 2026) **CAUSE NO. E953 OF 2022** **LUCY WACHEKE GATERE………………………………….CLAIMANT** **-VERSUS-** **ROYAL TULIP CANAAN NAIROBI….…………….1ST RESPONDENT** **VARUN ARORA……………………………………….2ND RESPONDENT** **JUDGMENT** **Introduction** 1. By a Statement of Claim dated 21st October 2022, the Claimant sued the Respondent for unfair termination of her employment and prayed for the following: - 2. ***A declaration that the Claimant was unfairly dismissed.*** 3. ***An order be issued directing the 1st Respondent to pay to the Claimant damages for unfair dismissal amounting to Kshs. 1,404,150/-, being the salary for the remainder of her contract.*** 4. ***An order be issued to the 1st Respondent to pay to the Claimant a notice pay of Kshs. 255,300/-, being two months' salary as per her employment contract.*** 5. ***An order be issued directing the 1st Respondent to pay to the Claimant an unpaid commission for the period of October 2016 to May 2022 amounting to Kshs. 1,920,000/-.*** 6. ***An order be issued directing the 1st Respondent to pay to the Claimant gratuity amounting to Kshs. 638,250/-.*** 7. ***An order be issued directing the 2nd Respondent to pay to the Claimant damages for physical assault, harassment and gender-based violence perpetrated against the Claimant.*** 8. ***An order directing the 1st Respondent to grant the Claimant immediate access to her work desktop to enable her retrieve her personal data from the computer.*** 9. ***Costs of this Claim together with interest at court rates from the date of filing this Claim till payment in full.*** 10. ***Any other relief that the court deems fit and just to grant.*** 11. The Respondents filed a Response to the Memorandum of Claim dated 23rd January 2023 denying that the Claimant was dismissed on 6th May 2022 as alleged. They averred that the Claimant committed gross misconduct including breach of confidentiality, misappropriation of company resources and neglect of duty and was served with a show cause letter. They further averred that the Claimant failed to give satisfactory response to the show cause letter, absconded duty and refused to cooperate with a lawful disciplinary process. Therefore, the respondents prayed for dismissal of the suit with costs. **Evidence** 1. The Claimant testified as CW1 and adopted her witness statement dated 21st October 2022 and her supplementary witness statement dated 7th October 2024 as her evidence in chief. She then produced a bundle of 7 documents numbered as exhibits. 2. In brief she stated that she was employed by the Respondent in October 2016 and on 2nd April 2022, she was offered an appointment as Sales Account Manager for a period of one year starting on 5th April 2022 to 4th April 2023. His monthly gross salary was Kshs.127,650. 3. She stated that on 8th April 2022, a client, Musoni Group sought booking at the 1st respondent hotel for an event on 6th May 2022 and the Sales Coordinator booked them to Sanate 1. On 4th May 2022, the Claimant generated the Bunguet Event Order as required. A day before the event, she learned that the venue had been altered and together with Mirriam from the Respondent’s Food and Beaverage department, met a representative of Musoni Group to persuade her to move their event to the Board Room since the Senate 1 unavailable. However, the officer declined and demanded to use the Senate 1 which they had booked. 4. On 6th May 2022, at midday, the 2nd Respondent called her to his office where she also found the HR manager Ms. Jackline Mulandi. The 2nd respondent asked her why Musoni Group was complaining and she explained that someone had changed the venue they had booked. He then responded to her that: “*Lucy just know you are fucking and screwing up people here because the gust is not happy*.” 5. She stated that the said words were violation of her constitutional right to dignity, but the 2nd respondent declined to withdrawal of the said offensive despite being asked to do so. In the end he told her that: “*Just know that was a big mistake for a client to complain. Just know you are dismissed. Please get out of here now.*” 6. She stated that the 2nd respondent told her that he was not satisfied with her response to the show cause directed her to write another response. He also told her to leave the hotel within 15-minutes and threated her that she would not leave the premises without writing another statement. 7. She stated that she rushed to her office on the first floor and logged into her computer in order to write the statement but then the 2nd respondent and the HR Manager Ms. Mulandi followed to her office, and he grabbed her hands and addressed her using demeaning language and told her that she was replaceable even she had worked there for a long time. He then told the IT Mnagaer Mr. Gabriel Mbicho Nyambura to lock the desktop without allowing an opportunity to clear and log off her emails and personal business contacts. 8. She contended that the 2nd Respondent unfairly dismissed her on false allegations without following due process and when he realized the blunder he had committed, purported to invite her to disciplinary on 27th May 2022 vide a letter dated 7th May 2022. She contended that the 1st respondent changed her email password and deleted her work-related data on monthly revenue. The 1st Respondent also circulated emails to all her clients notifying them that she was no longer its employee. 9. She further stated that on 19th August 2022, she received a notice of desertion from the 1st respondent, summoning her to another disciplinary hearing on 24th August 2022, but she responded through her lawyer declining the invitation since she was no longer in its employment. 10. She contended that during her five years plus, she was paid commission of 1.5% due to her despite attaining the requisite 75% of the set target. She stated that the commission due to her was Kshs.30,000 per month for the five years and four months served equaling to Kshs.1,920,000. 11. She further prayed for Kshs.1,404,150 being salary for the remainder of her contract term, that is, May 2022 to March 2023. She maintained that despite her long service and stellar performance, she was dismissed in the most unfair, inhuman and humiliating manner due to a minor misunderstanding over venue booking. She prayed for the reliefs sought in her Claim. 12. On cross examination, she stated that she had not used the Opera system before and clarified that bookings were made using an Excel sheet up to the date she was dismissed. She further stated that the Sales Coordinator, Mr. Calvins Cheptoo, was the one who booked Musoni Group in Senate 1 upon her request and that the client was. 13. She discovered the changes a night before the event on 7th April 2022. She stated that the Excel sheet remained as earlier booked for her client, Senate 1 was booked for Musoni. She stated that the person who made the blunder was the new Sales Coordinator who was holding brief for the substantive Coordinator who was maternity leave. She contended that the new coordinator was coerced by the Sales Manager to accord the new customer the best venue, which was Senate 1. 14. She reiterated that the 2nd Respondent called her on 6th May 2022 to the General Manager's office and the Human Resource Manager was present. She stated that the 2nd Respondent was standing in for the General Manager who was abroad. She contended that there is CCTV in the General Manager's office which can prove that she attended the meeting. She stated that she was given 5 minutes to leave the premises. 15. She stated that she never lodged any complaint about the abuses and assault because the Human Resource Manager was the only person to report to when the General Manager was away. She stated that she was traumatized by the treatment but she never reported to the police. She reiterated that the 2nd Respondent followed her from the General Manager's office on the ground floor to the 1st floor where she was going to write a statement and threw her out of the office. 16. She confirmed that she had a personal business which the General Manager knew about when he hired her as she had stated it in her Curriculum Vitae. She stated that she was dismissed from employment as pleaded in her case because her clients in the hotel wrote to her telling her they were no longer engaged in the hotel, her email address was discontinued and her salary stopped. 17. In re-examination, she stated that she was dismissed and later served with a show cause letter which was not about the bookings. 18. The Respondent called its Human Resource Manager Ms. Esther Mathenge as RW1. She adopted her witness statement dated 28th November 2023 as her evidence in chief and produced 9 documents in the list dated 28th November 2023 as exhibits. 19. In brief, she confirmed that the claimant was employed as Sales Account Manager from 5th April 2022 and on 8th April 2022 she negligently booked Senate 1 conference room to Musoni Group without checking its availability. When the Claimant and her Head of Department discovered the double booking on 4th May 2022, they agreed to move Musomi Group to the Boardroom. However, on 5th May 2022 the two clients had an impasse when they found the double booking in one venue. 20. She stated that after the impasse was settled, the Claimant had a meeting with the General Manager and the HR Manager where the Claimant was required to explain why there was double booking despite all the information on booking being updated on the event calendar and the Opera System in real time. The Claimant was unable to give satisfactory explanation and she was issued with a show cause letter to respond in writing. 21. RW1 further stated that the Claimant appeared before the 2nd respondent on 6th May 2022 carrying her response to the show cause letter but the response was found unsatisfactory and she was told to prepare a more candid and honest explanation. The management proceeded to the claimant’s workstation and inspected her computer with her consent. The HR Manager and the IT Officer confirmed that the Claimant had not been reading and responding to work related emails; that the desktop had notifications and the inbox was full of unread messages from clients and other employees from other departments; that she had been sending wrong Banquet Events Orders (BEOs) to clients since some did not match the details entered in the calendar of events; that she had not been checking the event calendar on daily basis; and that she had configured her work place computer with personal business outlook, Pride East Africa Limited. 22. RW1 stated that when the Claimant was confronted about the above discovery, she opted to walk out of the office rather than give explanation. Subsequently, the 1st Respondent wrote an email to the claimant to give written explanation but she responded by email on 7th May 2022 alleging that she had been orally dismissed and hounded out of the office on 6th May 2022. However, the respondent wrote an email the same day clarifying that the Claimant had not been dismissed. 23. RW1 stated that the claimant wrote an email dated 8th May 2022 thanking the employer for the clarification and requested for more time to respond to the allegations raised in the email dated 6th May 2022. She then responded by email on 11th May 2022 that she had been she had been reading and responding to emails except the junk mails; and that she had been experiencing challenges while using Opera System and therefore requiring training. She then admitted that she had not checked her emails for the last two weeks of April 2022; and that the business email was configured on her work computer to a cleaning and fumigation company she formed with her parents during the Covid-19 pandemic. 24. RW1 further stated that the Claimant was served with an email dated 17th May 2022 inviting her to a disciplinary hearing on 27th May 2022 before a Disciplinary Committee to answer three charges including Gross Negligence/carelessness; Breach of Privacy, confidentiality and network security; and misappropriation of assets and resources of the 1st Respondent. However, the Claimant served a demand letter on 21st may 2022 contending that her services had been unlawfully terminated among other violations, and declined the invitation to the disciplinary hearing. 25. RW1 stated that the Claimant never reported back to work from 7th May 2022 and her clients were reassigned to other sales operators and the clients were notified of the change of Account Managers via emails. The Claimant also never attended the disciplinary hearing on 27th May 2022 and on 19th August 2022, she was issued with a notice of desertion directing her to attend disciplinary hearing on 25th August 2022. 26. The Claimant failed to attend the hearing she was summarily dismissed vide a letter dated 31st August 2022 for absence from work from 7th May 2022, and failure to attend disciplinary hearings in May and August 2022. RW1 stated that the reasons for the dismissal were valid because they amounted to gross misconduct under the Claimant’s contract of employment. She further averred that fair procedure was followed because the claimant was afforded an opportunity to show cause and thereafter invited to disciplinary hearing on 27th May 2022 and 25th August 2022 in the company of another employee but she declined. 27. On cross examination, she stated that she joined the Respondent after the events in this case and that her evidence was drawn from information from the Claimant's file, and emails between the Claimant and her predecessor. She denied having discussed this case with the 2nd Respondent and clarified that she was instructed by the former General Manager Mr. Kumar who decides who should attend court to give evidence. 28. She confirmed that she did not view the CCTV footage she had produced as exhibit but confirmed that she only viewed the one where the Claimant was at the basement walking to get her car. She stated that the former HR Manager, Ms. Mulandi, handed over the CCTV footages. 29. She confirmed that there are CCTV cameras in the Sales and General Managers' offices. She stated that the 2nd Respondent have since left the 1st Respondent along with all the officers who were in the hotel except three who sat in the claimant’s disciplinary hearing. 30. In re-examination, she referred to an email on page 16 of the Claimant's bundle sent by the HR Manager to the Claimant on 5th May 2022 asking her to show cause and she responded on 6th May 2022. She stated that, as the Human Resource Manager of the Respondent, she was properly giving evidence in this case and the absence of the 2nd respondent did not invalid her evidence. **Submissions and issues for determination** 1. After the close of the hearing, the Claimant filed written submissions dated 25th February 2026 and the Respondents filed written submissions dated 16th April 2026. Having considered the pleadings, evidence and submissions, there is no dispute that the parties herein were involved in an employment relationship which was terminated by the Respondent for over five years period. The issues for determination are: - 2. Whether the Claimant's employment was terminated by the Respondents on 6th May 2022 or 31st August 2022. 3. Whether the termination was unlawful and unfair. 4. Whether the Claimant was subjected to workplace harassment, assault and violation of her constitutional rights contrary to the Constitution and the Data Protection Act. 5. Whether the Claimant is entitled to the remedies sought. **Analysis** 1. **Was the termination on 6th May 2022 or 31st August 2022?** 2. The Claimant contended that she was verbally dismissed by the 2nd Respondent on 6th May 2022 but the Respondents contended the claimant absconded duty from that date and refused to participate in a lawful disciplinary process. 3. I have carefully considered the evidence on record. The Claimant left work on 6th May 2022 immediately after a meeting with the 2nd Respondent and the HR Manager followed by seizure of her computer by the said managers and IT Officer. By an email dated 6th May 2022 at 3.18 PM the HR Manager, Ms. Mulandi required the claimant to write another response to the show cause letter issued on 5th May 2022 in addition to allegations made on 6th May 2022. 4. On 7th May 2022, the Claimant responded to the HR Manager claiming she was orally dismissed on 6th May 2022 and that she considered herself persona non grata in the facility. However, on the same day the HR wrote back informing her that she had not been verbally dismissed and she was required to submit her written statement. 5. On 8th May 2022, the Claimant responded requesting for more time to make a comprehensive response to allegations raised and by email dated 9th May 2022 the HR granted her 7 days to respond to the allegations. In the meanwhile, from 10th May 2022, the Sales Manager, Ms. Doris Jefwa wrote emails to the claimant’s client notifying them that the claimant was no longer with the 1st respondent. 6. The Claimant responded by an email dated 11th May 2022. On 17th May 2022, the Respondent served the Claimant with an email inviting her to a disciplinary hearing on 27th May 2022. The Claimant responded by serving a demand letter through her Lawyer accusing the employer of unlawful termination and declined the invitation to the disciplinary hearing. The above position was corroborated by the emails circulated to clients informing them that she was no longer employed by the organization and by stoppage of her salary. 7. The Respondent alleged that it had to reassign the Claimant’s contracts in order to continue with the business operation. However, I find that evidence on record tilts in favour of the Claimant’s case that she was verbally dismissed the 2nd Respondent on 6th may 2022. The 2nd Respondent and Ms Jefwa did not give evidence herein to rebut the Claimant’s evidence that during a meeting held on 6th May 2022 the 2nd Respondent verbally told her to consider herself dismissed then followed her to her office where he seized her official computer and hounded her of the premises. 8. Having considered the totality of the evidence presented, I find that the Respondents dismissed the Claimant from employment on 6th May 2022 and the Claimant was consistent in that view as indicated vide his email dated 7th May 2022. For the same reason, I hold that the purported dismissal on 31st August 2022 was a non-starter as the Claimant was no longer in employment then. **Unfair and unlawful termination** 1. Section 45 (2) of the Employment Act 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.****"* 1. The above provision indicates the twin elements of unfair termination of employment contract, namely, lack of valid reason for the termination and failure to follow a fair procedure. **Reasons for the termination** 1. The Claimant’s unrebutted evidence is that she was summoned for a meeting on 6th May 2022 by the 2nd respondent to explain why Musoni Group was complaining. The meeting was also attended by the HR Manager Ms Mulandi. Her explanation was found unsatisfactory and the 2nd Respondent verbally dismissed her from employment. After the meeting the same officers inspected her official computer and discovered the claimant had not been reading and responding to work related emails; that the desktop had notifications and the inbox was full of unread messages from clients and other employees from other departments; that she had been sending wrong Banquet Events Orders (BEOs) to clients since some did not match the details entered in the calendar of events; that she had not been checking the event calendar on daily basis; and that she had configured her work place computer with personal business outlook, Pride East Africa Limited. 2. The Claimant admitted the above allegations in her response to the show to cause dated 11th May 2022 where she stated that she had been checking the Opera system on weekly basis and she needed more training on the system. She further admitted that she had not managed to check events calendar daily and that she had failed to do so for last two weeks of April 2022 as she was overwhelmed by both conference and accommodation bookings. She maintained that Musoni Group was booked Senate 1 by the Sales Coordinator and that is why she generated the BEO. 3. She further admitted that she email configuration and use of office computer for personal business. She contended that during Covid- 19 she was assisted by the IT officer Mr. Ken to be able to use her personal laptop to do office work from home. Her pay was cut by 50% and therefore she registered her business as advised by the General Manager. When she resumed work, Ken assisted her transfer the data in her personal Laptop to the office computer because she decided to dispose of the laptop and that is how the personal email ended up in the company’s desktop. 4. The Respondents was not happy with the above conduct and deemed it to be gross violation and breach of confidentiality, misappropriation of company resources, neglect of duty and abandonment of employment. The Claimant never called the Sales Coordinator as a witness to confirm her allegations on the booking of Senate 1 for Musoni Group. Besides, she admitted that she generated the BEO for Musoni without checking the event calendar. 5. On the basis of the foregoing evidence and observations, I find that the respondents had valid reasons for dismissing the claimant on 6th May 2022. She generated a BEO for Senate 1 to Musoni Group without checking the Calendar of events and thereby confirmed double booking of one venue for two clients. As a Sales Account Manager, she bore the responsibility of ensuring bookings were properly coordinated but she failed to so. She also failed to read and respond email, and further failed to use Opera System for doing business. 6. The said Claimant’s conduct violated Section 44 (4c) of the Employment Act, which entitles an employer to dismiss his employee for failure to perform his duty or for carelessness or negligent performance of his duties under the contract of service. In view of the observations and findings made above, I hold that the Respondent had discharged its burden of proving valid reasons for dismissing the Claimant from employment on 6th May 2022. The reasons related to the claimant’s conduct and performance of his duties under the contract of employment. **Procedural fairness** 1. Section 41 of the Employment Act sets out the mandatory procedure for terminating employment on grounds of misconduct. It provides that:- ***“(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 summarily 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 provision sets out elements of fair procedure including an explanation in a language understood by the employee, of the reason for which the employer is considering termination; entitlement of an employee to the presence of another employee of his choice; and hearing and consideration of any representations made by the employee and his companion before the making a decision to terminate the contract of service. 2. The chronology of events in leading to the termination on 6th May 2022 is important. On 5th May 2022, the Claimant was issued with a Notice to Show Cause requiring to explain the double booking of Senate 1 to two clients on the material date. On 6th May 2022, the Claimant appeared before the 2nd Respondent and the HR Manager carrying her response to the show cause letter. After considering the claimant’s representations, the 2nd Respondent informed the Claimant that *"Just know you are dismissed. Please get out of here now."* 3. After the Claimant left the premises, the Head of Human Resources sent an email requiring her dated on 6th May 2022, asking her to provide a written response to additional concerns. On 17th May 2022, a formal Notice of Disciplinary Hearing was issued scheduling a hearing for 27th May 2022. The Claimant did not attend the hearing. A Notice of Desertion dated 19th August 2022 was issued and a Summary Dismissal letter dated 31st August 2022 followed. 4. I have already made a finding of fact that the claimant was dismissed from service on 6th May 2022 by the 2nd Respondent. The subsequent show cause letters and disciplinary hearing notices were an attempt to retrospectively sanitize a decision that had already been made. Any attempt to conduct a disciplinary hearing after an employer has already dismissed an employee is a nullity in law. 5. The Respondents have also relied on **Gideon Akwera v. Board of Governors Church on the Rock Academy[2015] KEELRC 429 (KLR)**and **Banking, Insurance & Finance Union (Kenya) v. Barclays Bank of Kenya Ltd*[2014] KEELRC 1145 (KLR)***for the proposition that an employer cannot be faulted when an employee invited to a disciplinary hearing fails to attend without justifiable cause. 6. I entirely agree with the above legal principle is sound. However, I must observe that such principle does not apply where, like in the instant case, the employee has already been dismissed. Therefore, I find that the Claimant was not accorded a fair hearing before the termination as contemplated in section 41 of the Employment Act. The decision to dismiss the Claimant was made before any disciplinary hearing was held within the meaning of section 41 above. She just submitted a written response to a show cause notice, and she was not formally summoned to any hearing in the company of another employee. 7. Having found that the termination was not done in accordance with a fair procedure and that the subsequent disciplinary process cannot be used to sanitize the irregularity, I hold that the Claimant's termination was unfair within the meaning of section 45 of the Employment Act. **(c) workplace harassment, assault, and violation constitutional rights.** 1. The Claimant alleges that she was subjected to harassment, intimidation and physical assault by the 2nd Respondent on 6th May 2022. She testified that the 2nd Respondent used vulgar language, grabbed her hands and addressed her using demeaning language. She stated that the 2nd Respondent told her: *"Lucy just know you are fucking and screwing up people here because the guest is not happy"* and "Just know that was a big mistake for a client to complain. Just know you are dismissed." 2. The Claimant has invoked Articles 28, 29, 41 and 47 of the Constitution which safeguard human dignity, security of the person, fair labour practices and fair administrative action. She also relies on Section 6 of the Employment Act which recognizes harassment as conduct that is unwelcome, humiliating, intimidating or offensive and which undermines an employee's dignity. 3. The Claimant's evidence on these allegations rests largely on her own testimony. She did not produce any corroborative evidence and she never lodged any complaint about the abuses and assault to the employer or the police. She explained that the Human Resource Manager was the only person to report to when the General Manager was away, and she witnessed the incidence. She also did not report because she was traumatized by the treatment. 4. The Claimant contended that the Respondents have CCTV footage of the events that transpired in the General Manager's office and that the failure to produce it warrants an adverse inference. RW1 confirmed that there are CCTV cameras in the General Manager's office but only produced CCTV footage depicting events occurring outside the General Manager’s office while the claimant was leaving the premises. 5. The Respondent did not call the 2nd Respondent and the former HR Manager Ms. Mulandi as witnesses to rebut the allegations by the claimant. They were accused of serious violations as agents of the 1st Respondent and it was upto the Respondent to call them as witnesses to clear itself. It also had the CCTV footages and IT Administrator who downloaded the footage described in Certificate of Electronic Records as: “CCTV Footage of the claimant leaving the Royal Canaan Tulip Nairobi *on 6th May 2023*.[sic]”, but he was not called to give evidewnce. 6. The question that begs for answer is, why did the officer not download the CCTV Footage for the events that occurred in the General Manager’s office before the Claimant went back to her work station then left to go home. The answer, in my view, is that the omitted footage was prejudicial to the Respondents’ case. 7. In the circumstances, I find and hold that the claimant has, on the basis of the said unrebutted evidence, proved on a balance of probability that the 2nd Respondent unlawfully harassed, intimidated and physically assaulted in his office on 6th May 2022. He used abusive and vulgar language when he told that, *"Lucy just know you are fucking and screwing up people here because the guest is not happy. Just know that was a big mistake for a client to complain. Just know you are dismissed."* 8. She has also proved that the 2nd Respondent followed her to her workstation and grabbed her hands and addressed her using demeaning language demanding to inspect her office computer. On the basis of the above evidence, I find that the conduct of the 2nd Respondent using vulgar and demeaning language against the Claimant, constituted harassment and a violation of her right to dignity under unfair labour practices and unfair administrative action Article 28, 41 and 47 of the Constitution and section 6 of the Employment Act. 9. This court finds that an employer has no justification to use vulgar and abusive language against his employee for whatever reason. The work place should be the epitome of decency and dignity for workers and compliance with fair procedure for separation between the employer and his employee. In this case the employer went overboard by treating his employee, as a rag for discarding or a mediaval slave. **(d) violated the Claimant's right to privacy** 1. The Claimant contends that her work desktop was seized without allowing her the opportunity to clear and log off her emails with the sole motive of illegally accessing her personal data. The Respondents contend that the inspection was lawful as the computer was the property of the 1st Respondent and the inspection was necessary to investigate the double-booking incident. 2. Article 31 of the Constitution guarantees every person the right to privacy. The Claimant reliedon**Mwangi v. ABSA Bank Kenya PLC [2024] *and*Jessica Clarise Wanjiru v. Davinci Aesthetics & Reconstruction Centre & 2 Others [2017]** to urge that a breach of privacy is contrary to Article 31 of the Constitution. 3. However, the Respondents relied on **Musa & another v. Makini Schools Limited[2025] KEELRC 17 (KLR)** to urge that an employer who accesses information processed through an office laptop cannot be accused of violating the right to privacy of the employee. 4. They also rely on**Kendagor v. Dig Deep (Africa)[2025] KEELRC 2753 (KLR)** to further urge that electronic communications systems and equipment issued at the workplace remain the property of the employer, who retains the right to track the use of those facilities. 5. In **Peter Apollo Ochieng v. Instarect Ltd[2017] KEELRC 250 (KLR)**, the Court held that workplace emails and communication are the prerogative of the employer and that time, tools and resources used for communication are the property of the employer. 6. I have considered the evidence on record. The Claimant admitted in her supplementary witness statement that she had configured her personal email on the work laptop. The Claimant also admitted in her evidence that the Respondent had configured her work email account into her personal mobile phone. 7. The inspection of the Claimant's work computer was triggered by the double-booking incident to determine whether the Claimant had been checking her emails and the events calendar. The inspection revealed that the Claimant had not been checking and responding to work emails, had been sending wrong Banquet Event Orders, had not been checking the events calendar and had configured her work computer with her personal business outlook. 8. The impugned inspection was conducted by the officers of on the Respondent's own computer to verify whether the claimant was reading the official emails and checking events calendar. The inspection was lawful, proportionate and conducted for a legitimate business purpose. Therefore, the claimant cannot scream violation of the right to privacy if the employer stumbled on personal information during the said inspection. 9. It follows that where an employee, like in the instant case, uses office computer for personal business, he/she cannot succeed in a claim for infringement of privacy if the employer exercises his prerogative of inspecting the computer to verify its usage by the employee. Umber light must always start blinking whenever an employee starts to communicate private matters through the employer’s official emails, and/or through official computers, when he uses the official computers for storage of personal data. 10. Having found that there is no privacy in the data or communications done through the employer’s computer, I hold that the Respondents did not violate the Claimant's right to privacy by inspecting the work computer. **Entitlement to the reliefs sought** 1. I have found that the Claimant's dismissal was procedurally unfair, and therefore, I find that she is entitled to declaration that the dismissal was unfair as prayed. For the same reason, I find that she is entitled to compensation and salary in lieu of notice under section 49 of the Employment Act and not salary for the remainder of her contract term as prayed. Clause 7 of the appointment letter provided for a termination notice of 60 days or salary in lieu of notice. Consequently, I award two months’ salary in lieu of notice based on her monthly salary of Kshs. 127,650, totaling to Kshs. 255,300. 2. As regards compensation for unfair termination, it is evident that the claimant worked for over five years before the dismissal but also that she contributed to her dismissal through misconduct. She also expected to continue working for about ten months before her contract expired. Having considered the above factors, I award three months gross salary as compensation for the unfair dismissal being Kshs.382,650. 3. The claim for gratuity is not supported by the contract of employment as it was not provided in the appointment letter. It is trite law that for a claim of gratuity to succeed the employee must prove that it was included into the terms of service under the contract of employment. 4. The Claimant prays for unpaid commission of Kshs. 1,920,000 for the period October 2016 to May 2022. The claim for commission is unsubstantiated. The Claimant has not produced any documentary evidence including commission schedules, sales records or performance ledgers to support the claim. The Claimant relied on an email dated 20th May 2017 from the General Manager promising sales incentives. However, the email itself indicates that the issue of sales incentive payment was under consideration and had not been finalized and formalized. 5. I have carefully the Claimant's Letter of Appointment dated 1st April 2022 and found no provision for payment of commission. Therefore, I decline to grant the claim for unpaid commission. 6. The Claimant prays for damages for physical assault, harassment and gender-based violence perpetuated against her by the 2nd Respondent. I have already made a finding that the Claimant was subjected to harassment and violation of her right to dignity, fair labour practices and fair administrative action contrary to Article 28, 41 and 47 of the Constitution. I award her Kshs.500,000 as general damages for the said harassment and violations, considering embarrassment caused through the physical assault and the insults she received from the 2nd Respondent while acting as an agent of the 1st respondent. 7. The Claimant prays for an order directing the 1st Respondent to grant her access to her work desktop to retrieve her personal data. The work desktop is the property of the 1st Respondent. The Claimant has no proprietary right to access the employer's equipment following separation of employment. She has also not demonstrated that the Respondents are still retaining the alleged information and using it to her detriment. Consequently, I decline to grant this order. **Conclusion** 1. I have found that the Claimant's employment was unfairly terminated by the Respondents on 6th May 2022. I have further found that the Claimant was subjected to harassment by the 2nd Respondent and that her right to dignity, fair labour practices and fair administrative action under Article 28, 41 and 47 of the Constitution was violated. 2. Accordingly, I enter judgment for the Claimant against the Respondents as follows:- 1. Notice Kshs. 255,300 2. Compensation Kshs. 382,950 3. General damages Kshs. 500,000 **Total Kshs. 1,138,250** 1. The award is subject to statutory deductions but the Claimant is awarded costs and interest at court rate from the date of this judgment. **DATED, SIGNED AND DELIVERED VIRTUALLY IN OPEN COURT AT NAIROBI THIS 21ST DAY OF JULY, 2026.** **ONESMUS MAKAU** **JUDGE** **Appearance:** Omoke for Claimant Kisigwa for Respondent