https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2225

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI** **PETITION NO. E182 OF 2025** **FRANKLINE ONTIRI KAUNDA PETITIONER** *VERSUS* **UNGA LIMITED RESPONDENT** **JUDGMENT** The petitioner is seeking the following orders: 1. *A Declaration be issued that the Respondent's decision contained in the letter dated 8 October 2025 purporting to dismiss the Petitioner from employment summarily is unconstitutional, unlawful, unfair and violates Articles 31, 41, 47, 48, 50 of the Constitution, sections 41 and 44 of the Employment Act, the Data Protection Act, the Fair Administrative Action Act and the Respondent's own policies.* 2. *A Declaration be issued that the Respondent's actions violate the Petitioner's rights to privacy, fair labour practices, fair administrative action, access to justice and a fair hearing.* 3. *A Declaration be issued that the disciplinary proceedings against the Petitioner are unlawful and unfair as the Respondent did not follow due process, rendering them void ab initio.* 4. *An Order of Certiorari be issued calling into this court, and quashing, the decision of the Respondent contained in the letter dated 8 October 2025, purporting to dismiss the Petitioner from employment summarily, and any other consequential administrative decision or action arising therefrom.* 5. *An Order of Prohibition be issued restraining the Respondent from implementing, enforcing, or acting upon the impugned decision contained in the letter dated 8 October 2025 purporting to dismiss the Petitioner from employment summarily.* 6. *An Order of Prohibition be issued restraining the Respondent, whether by itself, its officers, agents or assigns, from further accessing the Petitioner's sensitive personal data without the Petitioner's consent.* 7. *An Order of Mandamus be issued compelling the Respondent to reinstate the Petitioner to the Respondent with full benefits, privileges and status, and without loss of salary, seniority or continuity of service, in accordance with section 49(3)* *of the Employment Act.* 1. *An Order be issued compelling the Respondent to issue the Petitioner with a certificate of service pursuant to Section 51 of the Employment Act.* 2. *An Order of Compensation for the violation and contravention of his fundamental rights and freedoms under Articles 31, 41, 47, 48 and 50 of the Constitution.* 3. *An Order directing the Respondent to pay damages to the Petitioner herein for unlawful, unfair and unjustified summary dismissal.* 4. *The Respondent bears the costs of this Petition.* The petition is that the petitioner is an adult male. The respondent is a limited liability company. On 11 September 2023, the petitioner was employed by the Respondent as a Team Lead – Payables, job grade Grade 5, and a monthly salary of Ksh. 250,000. Over time, the salary was increased to Ksh. 275,000. The petition is that on 15 September 2025, the Respondent issued the petitioner a show-cause letter requiring him to explain why disciplinary action should not be taken against him, within 48 hours of the said letter. The show-cause letter was accompanied by an undated investigation report alleging that the petitioner had received Ksh. 560,144 from its suppliers and transporters. The respondent relied on an investigation report that intruded into the petitioner's private affairs by accessing details of his M-Pesa transactions without his consent or a lawful court order. On the same day, 15 September 2025, the petitioner was suspended pending conclusion of disciplinary proceedings against him. The petition is that the period given to the petitioner to respond to the show-cause letter was inadequate and violated his right to fair administrative action, as protected under Article 47 of the Constitution. The Respondent relied on illegally obtained evidence, thereby violating the petitioner's right to privacy under Article 31 of the Constitution. The Respondent's decision purporting to suspend the petitioner on the strength of illegally obtained evidence violated the right to fair labour practices protected under Article 41 of the Constitution. In his letter dated 17 September 2025, the Petitioner challenged the manner in which the Respondent procured a third party to access his personal data and requested more time to consider the allegations levelled against him and the evidence before responding to the same. On 18 September 2025, the Petitioner filed an application seeking to stay the Respondent's disciplinary process against him. The Court issued an order directing parties to attempt to compromise the matter, with a view to recording a consent. However, on 22 September 2025, the Respondent informed the Petitioner that the Petitioner's data had been accessed pursuant to a court order granted in MISCAPP/E584/2025, purportedly authorising the Respondent to investigate the Petitioner. In a letter dated 25 September 2025, the Petitioner asked the Respondent to furnish him with copies of the said Miscellaneous Application and Order authorising them to investigate. Through a letter dated 26 September 2025, the Respondent declined and instead invited the Petitioner to a disciplinary hearing on 30 September 2025 in their offices. On 30 September 2025, the Petitioner attended the disciplinary hearing as required and sought to be furnished with copies of the documents which the Respondent relied on before he could formally respond to the allegations levelled against him. The Respondent refused and proceeded with the disciplinary hearing. This violated the principles of natural justice. On 8 October 2025, the Respondent issued the Petitioner with a summary dismissal letter. On 15 October 2025, the Petitioner appealed against his summary dismissal, and through a letter dated 22 October 2025, the Respondent invited the Petitioner to an appeal hearing at its offices. The Respondent purported to annex the court order authorising it to investigate the Petitioner, but it was missing from the annexed documents. On 28 October 2025, the Petitioner attended the appeal hearing and sought to be furnished with the said court order and witness statements. The Respondent declined. Through a letter dated 21 November 2025, the Respondent upheld its summary dismissal of 8 October 2025, without having considered the substance and merits of the Petitioner's notice of appeal, as no evidence was presented to support the claims of conflict of interest and soliciting of money, as particularised in the Petitioner's notice of appeal. The petition is that the Respondent subjected the Petitioner to disciplinary action based on the Gift and Hospitality Policy, which was never brought to his attention and was only approved in September 2024, long after the acts of soliciting money from suppliers and transporters are alleged to have occurred. The Gift Policy cannot apply retrogressively. The petitioner claims that his termination of employment was wrongful and unlawful, and that the orders sought should issue. The petition is supported by the petitioner’s affidavit and premised on the provisions of Articles 2, 19, 20(1-4), 21(1) & 3, 22(1) & (2)(b) &(c), 23(1) & (3), 25(a)&(c), 27, 28, 31, 41 (1), 47, 48, 50 (1), 73, 75, 159, 162(2)(a), 165(3)(b), 232, 258(1) and 259(1) of the constitution. The petition is also based on the provisions of the Employment Act. In reply to the petition, the Respondent filed the Replying Affidavit of John Mwendwa, the Respondent's Group Human Resource Director, who avers that event have overtaken the Petition, as the Respondent continued the disciplinary process after the Petitioner was given a fair hearing. The Petitioner was dismissed from employment on 8 October 2025. On the amended petition, Mwendwa avers that by a contract dated 18 August 2023, the Petitioner was appointed Team Lead – Payables within the Respondent’s Finance Department. Part of the Petitioner’s duties included ensuring that payments to the Respondent’s suppliers were accurately processed. Clauses 11 and 12 of the Petitioner’s Contract provided that the Respondent’s Code of Conduct and HR Manual apply to the Petitioner’s terms and conditions of employment. Under the Code, all employees are obligated to uphold it, and any breaches constitute misconduct. Thus, accepting gifts of more than a nominal value or having a financial relationship with a supplier of the Respondent constitutes a conflict of interest on the part of an employee. Cash gifts from suppliers are prohibited. Given that the Petitioner was Team Lead – Payables, he was responsible for payments to the Respondent's suppliers. He was required to ensure no conflict of interest between him and the suppliers to ensure integrity in the Respondent’s payment systems. Mwendwa avers that Investigations into Suspected Misconduct were conducted, and in March 2025, the Respondent received a whistleblower report alleging financial impropriety involving some of its employees and suppliers. The Respondent reported the matter to the police at Industrial Police Station under **OB Number 70/07/04/2025**. This led to investigations by the police, and the Office of the Director of Public Prosecutions applied to the court for an order to access certain financial statements relating to transactions by the Respondent's suppliers/transporters. By an order dated 8 April 2025, the court at Makadara Law Courts issued an order in Miscellaneous Application E584 of 2025 allowing access to these statements for the investigations. The Respondent was closely involved as the complainant, which revealed that on various dates, the Petitioner had received a total of Kshs. 560,144 from various suppliers/transporters of the Respondent. Notice to Show Cause to Petitioner issued for breach of the Code and for acting in conflict of interest and the prohibition of accepting cash gifts. This was also a breach of the contract of employment, and this being a serious breach, a notice to show cause was issued on 15 September 2025. The Petitioner was invited to respond to his misconduct, and the details were set out together with the investigation report, which detailed the various transactions in which the Petitioner received cash from the Respondent's suppliers/transporters. He was also suspended pending the disciplinary process. On 17 September 2025, the Petitioner requested additional time to respond to the Show Cause Letter. On 18 September 2025, the Petitioner filed the proceedings herein in which the Petitioner made various allegations against the Respondent regarding alleged breach of the Petitioner’s data protection and data privacy rights. These allegations are without merit. Mwendwa avers that the Respondent gave the Petitioner a detailed explanation of the investigations that revealed he had received monies from the suppliers/transporters. The justification was Section 28 (1) (f) of the Data Protection Act (the DPA), which provides that personal data such as data relating to financial transactions can be collected indirectly without consent of the data subject where collection is necessary for the prevention, detection, investigation, prosecution and punishment of crime. These provisions allowed the ODPP to apply to the Makadara Court for an order to access information on the relevant transactions for their investigations after the Respondent made a report. The DPA does not apply to the processing of personal data disclosure that is required by or under any written law or by an order of the court in terms of Section 51 (2) (c). Also, under the PDA, personal data may be processed without the data subject's consent if necessary for the performance of a contract to which the data subject is a party, or for purposes of pursuing a legitimate interest of the data controller or data processor in terms of section 30. The Petitioner had an employment contract with the Respondent, who had a legitimate interest in investigating the extent of his involvement in transactions with suppliers and was therefore permitted to take appropriate action as an employer. Therefore, the express consent of the Petitioner was not required. Further, processing of personal data is exempt from the provisions of the Act where it is necessary for public interest under Section 51 (2) (b) of the DPA. Under Regulation 55 (a) of the Data Protection (General) Regulations provides that public interest includes a general permitted situation and Regulation 56 (b) and (c) sets out situations that constitute public interest to include investigation of suspected serious misconduct and asserting a legal or equitable claim. The respondent acted lawfully and within its rights as an employer. The Petitioner gave consent under his employment contract to the processing and collection of data for its management. The information contained in the investigation report that formed the basis of the Show Cause Letter was necessary for the management of the Petitioner’s employment, insofar as financial impropriety by the Respondent is concerned. The Petitioner had already consented to the processing of the data contained in the investigation report from the outset. In the letter dated 25 September 2025, the Petitioner responded to the Show Cause Letter, raising further allegations of violations of data privacy and data protection. The Petitioner’s advocates confirmed that they had perused the court file in respect of **Miscellaneous Application E584 of 2025**, in which the initial court order was issued. Mwendwa avers that there was thus a legal basis for accessing the Petitioner’s information during the investigations. The Petitioner was given a chance to respond to the notice to show cause to the substantive matters raised and the investigation report. He was invited to a disciplinary hearing on 30 September 2025. His right to bring another employee was secured. Mwendwa avers in his affidavit that the Petitioner attended the disciplinary hearing on 30 September 2025, accompanied by a colleague of his choice. He confirmed that he had not substantively responded to the matters raised in the Show Cause Letter and investigation report. He confirmed he accessed the court file and the court order issued in **Makadara Law Court Miscellaneous Application E584 of 2025**. The investigations revealed that the financial impropriety was committed by the Respondent's suppliers/transporters, indicating that the Petitioner had received monies from them while employed by the Respondent. He did not provide any explanation regarding the receipt of cash from the suppliers/transporters. The Respondent thus considered the representations made by the Petitioner, both in writing and verbally, and noted that he had no justification for receiving Kshs. 560,144 from various suppliers/transporters. The Petitioner's conduct violated the terms of the Code and the Human Resource Policy, constituting gross misconduct under Section 44(3) of the Employment Act. In the letter dated 8 October 2025, the Respondent summarily dismissed the Petitioner from employment. He was granted the right of appeal, which was found to be without merit and thus dismissed. The allegations concern constitutional violations. The acquisition of data relating to the Petitioner’s receipt of cash from the Respondent’s suppliers was carried out pursuant to a court order. Access to financial transactions of the Respondent’s suppliers/transporters, which then revealed that the Petitioner had received funds from the said suppliers/transporters, was justified and lawful. The Respondent was entitled to access this data for purposes of investigating financial impropriety by its employees and to assert its legal and contractual rights as an employer as permitted by the DPA. At all material times, the petitioner was under an employment contract that required compliance with the Code of Conduct and the Human Resource Policy. There was due process during the disciplinary hearing, and the orders sought alleging constitutional and rights violations have no merit and should be dismissed with costs. The Respondent has a managerial prerogative to discipline employees engaged in misconduct and breach of the terms of their employment that has led to financial losses for the Respondent. There is a broader interest in protecting the Respondent's financial position, which has been compromised by a few employees, including the petitioner, to ensure continuity and sustainability for the benefit of the hundreds of other employees. On the petition, the petitioner submitted that the decision to terminate his employment was unfair, unlawful, unreasonable and unjustifiable. He did not receive any money from suppliers as alleged. The allegations of a violation of the Gifts and Hospitality Policy are not substantiated. In **Walter Ogal Anuro v Teachers Service Commission [2013] KEELRC 386 (KLR)**, the Court held that for a termination to pass the fairness test, it must be shown that there was not only substantive justification for the termination but also procedural fairness. In **Pius Macha Isundu vs Lavington Security Guards Limited [2017] eKLR**, the court held that the employer must prove the reasons for termination in terms of section 43, prove that the reasons are valid and fair under section 45, prove that the grounds are justified pursuant to section 4([5) of the Act, among other provisions. The petitioner thus submitted that the Respondent principally relies on an investigation report prepared by Paneno Crime Security and Safety Watch Limited. However, the report contains inconsistencies that cast doubt on its reliability and evidential value. The report refers to various documents and records that have not been availed before this Court for clarification, verification, or scrutiny or independently verified. It reveals that it does not identify the specific accounts investigated, the transactions examined, or the methodology used to arrive at its conclusions. Consequently, the report amounts to an opinion. The report is undated and unsigned, casting doubt on its authenticity and provenance. The petitioner submitted that there was a lapse in procedural fairness and in the protection of constitutional rights. Section 41 of the Act requires notification, a genuine opportunity to prepare a defence, and consideration of representations before a final decision, as held in **Ashoro v Cargill Kenya Limited [2026] KEELRC 478 (KLR)**, **Willie Kipkoech Langat v County Public Service Board [2022] eKLR**, and **Postal Corporation of Kenya v Tanui [2019] KECA 489 (KLR)**. Articles 10, 28, 31, 41, 47, 48 and 50(1) of the Constitution and sections 28 to 30 of the Data Protection Act and Regulations 4 and 6 of the Data Protection (General) Regulations) concerning consent and notice for data collection. In **Chief Registrar of Judiciary & 2 others v LMN [2025] KESC 53**, the court held that fairness in disciplinary proceedings is a constitutional imperative requiring compliance with Articles 47 and 50 regardless of the officer's status. In **Mwangi v ABSA Bank Kenya PLC [2024] KEELRC 2399**, the court held that an employer conducting unjustified private investigations into an employee's private life, without bringing the matter to the employee, breaches Article 31 privacy rights; damages of Ksh. 5,000,000 were awarded. The remedies sought should be issued. **Determination** By a letter dated 8 October 2025, the respondent terminated the petitioner's employment for gross misconduct in terms of the Code and the Human Resource Policy, which constitutes gross misconduct under Section 44(3) of the Employment Act (the Act). The reason was that he was issued with a notice to show cause dated 15 September 2025. The allegations that the petitioner was required to respond to included that he had received Ksh. 560,144 from a supplier in breach of the Code of Conduct and the Human Resource Policy. Instead of responding to the issues, the petitioner, through his letter dated 17 September 2025, challenged the claim in the investigation report regarding access to his personal data. He also filed this petition on 18 September 2025. An employer may terminate employment under sections 44(3) and 44 (4) of the Act for a fundamental breach of the employment contract or the employee's gross misconduct. Such a right is, however, regulated under section 41(2) of the Act. The employer must issue notice to the employee and allow the employee to attend and make his representations in the presence of another employee of his choice. The employer must thus discharge its burden and justify that the reasons leading to termination of employment were, in their nature, a fundamental breach of the employment contract, gross misconduct, or both. The employer must also demonstrate adherence to due process. In [**Kenya Revenue Authority v Gitahi & 2 others [2019] KECA 300 (KLR)**](https://new.kenyalaw.org/akn/ke/judgment/keca/2019/300/eng%402019-10-11), the court held that the standard of proof is on a balance of probability, not beyond reasonable doubt, and all the employer is required to prove are the reasons that it “genuinely believed to exist,” causing it to terminate the employee’s services. That is a partly subjective test. Each case must be reviewed on its merits. The basis of the application of section 43(2) of the Employment Act is that at the time of terminating employment, there is a reasonable basis to believe that the employee has engaged in misconduct or gross misconduct. There is a genuine belief that the conduct of the employee is gross and put to a disciplinary hearing, and the employee has no reasonable cause for such conduct: ***(2) The reason or reasons for termination of a contract are the matters that the employer at the time of termination of the contract genuinely believed to exist, and which caused the employer to terminate the employee's services.*** In **Lake Victoria North Water Services Board & another v Alfred Odongo Amombo [2017] KECA 501 (KLR)** and **John Charo Ngumbao v Amani Tiwi Beach Resort [2017] KECA 13 (KLR),** the court held that upon the employee’s right under section 41 of the Employment Act being secured, where there exists reasonable cause that the conduct of the employee is gross misconduct, termination of employment is justified. Thus, in **Nzuki v South Eastern Kenya University & another [2026] KEELRC 317 (KLR),** the court underscored the fact that under section 43(2) of the Employment Act, the burden is upon the employer to demonstrate the reasons that caused the termination of employment. In **Kenya Revenue Authority v Reuwel Waithaka Gitahi & 2 others [2019] eKLR**, the Court of Appeal held that the standard of proof is on a balance of probabilities, not beyond reasonable doubt. All the employer is required to prove are the reasons it genuinely believed existed, causing it to terminate the employee’s services. In this case, the petitioner asserts that the respondent used illegally obtained evidence to terminate his employment, thereby violating the DPA. He requested the evidence referenced in the undated investigation report, but the respondent declined to provide it. However, the respondent has produced records that the investigators' report resulted from a police report and a court order from Makadara of **Miscellaneous Application E584 of 2025**. To challenge the manner in which the evidence against him was obtained, the petitioner does not contest the investigation report or the findings that, while in the employment of the respondent, he obtained money from suppliers/transporters amounting to Ksh. 560,144. The petitioner cannot thus hide behind Article 31 of the Constitution. Under the DPA, the respondent was granted access to the petitioner's personal records under section 51, where the public interest permitted such access. Upon the report of a criminal offence involving the respondent's suppliers, the public interest was invoked. Indeed, in [**Kenya Human Rights Commission v Communications Authority of Kenya & 4 others [2018] KEHC 7494 (KLR)**](https://new.kenyalaw.org/akn/ke/judgment/kehc/2018/7494/eng%402018-04-19)**,** the court emphasised that the only exception to access to personal data and information can only be justified when they are prescribed by law, necessary to achieve a legitimate aim, and proportionate to the aim pursued. This is in tandem with section 30 of the DPA, which allows access to information and data for a legitimate purpose. See [**Wanjiru v Machakos University [2022] KEHC 10599 (KLR)**](https://new.kenyalaw.org/akn/ke/judgment/kehc/2022/10599/eng%402022-08-03)**.** As an employee, the petitioner was bound by his employment contract and the applicable HR policy, and any breach thereof gave the respondent the right to terminate his employment by summary dismissal. This is allowed under section 44 of the Act. Thus, without proof that the respondent accessed the petitioner's confidential information unprocedurally or illegally, or breached the Code of Conduct or the Data Protection Act and the Regulations thereof, the court finds there was a genuine reason leading to the termination of employment as held in **Opap v Tata Chemicals Magadi Limited [2024] KEELRC 1286 (KLR)**. Also, based on the notice to show cause, which brought to the petitioners' attention that the respondent, as the employer, was considering disciplinary action, the petitioner was given a fair chance to give his explanations. He opted to contest the access to his personal data without explaining the substantive issues raised. Given the chance to explain, the petitioner should have seized the moment accordingly, as held in **Terry Muringo Muchiri v K-Rep Group Limited [2021] eKLR,** the court, in addressing a similar matter as herein, held that; *…where an employee squanders the opportunity for a fair hearing, the employer is justified in terminating employment for gross misconduct as envisaged under section 44 of the Employment Act, 2007. …* The summary dismissal was for breach of the employment contract and gross misconduct. On the remedies sought by the petitioner, the decision in the letter dated 8 October 2025 resulted from a disciplinary process premised on findings of breach of the employment contract and due process. The petitioner was invited to a disciplinary hearing; he attended with his representative and made his representation in terms of section 41 of the Act. Although the provisions of section 44 of the Act allow for summary action, the petitioner was issued a notice to show cause and more time to make his written response; he was invited to a disciplinary hearing, and ultimately, he failed to give a satisfactory response for his conduct of obtaining money from suppliers and transporters amounting to Ksh. 560,144. On the alleged breach of the right to privacy and constitutional violations, the subject being access to M-pesa transactions from the petitioner's personal records, such access was secured through a court order in Makadara **Miscellaneous Application E584 of 2025.** The petitioner admitted having had access to such a court Order. There is a legitimate and lawful process in securing the petitioner's personal records following breach of the employment contract and gross misconduct during his employment with the respondent. The disciplinary proceedings thus held against the petitioner by the respondent as the employer were justified pursuant to sections 44 and 41 of the Act. At the time the notice to show cause was issued on 15 September 2025, the respondent genuinely believed there were grounds for the disciplinary action. The petitioner admitted that he received the undated investigation report outlining the allegations made against him. He does not contest the investigation report in terms of the contents therein. The letter of summary dismissal dated 8 October 2025 has taken effect; it is justified and hence lawful. The order of payment of damages, compensation and reinstatement cannot be issued in the given circumstances where the termination of employment is justified. Regarding the issuance of a Certificate of Service at the end of employment, the petitioner is entitled to it under section 51 of the Act. Such shall issue upon clearance with the employer. **Regarding costs, the petition is without merit. It is hereby dismissed with costs to the respondent.** **Delivered in open court this 30th day of July 2026** **M. MBARŨ** **JUDGE** **In the presence of:** **Court Assistant: Kemboi** **……………………………………………… and …………………………………..………**