Kemboi v Baobab Development Group Limited (Cause E1075 of 2021) [2026] KEELRC 1516 (KLR) (29 May 2026) (Judgment)

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT AND LABOUR RELATIONS COURT** **AT NAIROBI** **CAUSE NO. E1075 OF 2021** **LUCY JEROTICH KEMBOI………………………………..…. CLAIMANT** **-VERSUS-** **BAOBAB DEVELOPMENT GROUP LIMITED…….…. RESPONDENT** **JUDGMENT** 1. The Claimant through a Memorandum of Claim dated 31st December, 2021 pleaded inter alia as follows: - 2. *That the Claimant was an employee of the Respondent Company having worked with due diligence for the said Respondent in two capacities as here below described: -* * 1. *Vide a letter of Appointment dated 20/8/2018 the Respondent offered, and the Claimant accepted to work for the former as a Relationship/Account Manager (collection) at an agreed monthly gross salary of Kshs.50,000/= with effect from 1/11/2018. The Claimant dutifully discharged her duties to the satisfaction of the Respondent to the extent that she was added additional duties under an addendum to the 1st employment contract aforesaid.* 2. *Vide a second letter dated 1/2/2019 without consulting the Claimant the Respondent Company altered the agreed terms of employment between the Claimant and the Respondent in a second document referenced "ADDENDUM TO EMPLOYMENT CONTRACT” in which they added more duties to the Claimant to serve in the position of Receptionist (Customer Care) and Collection Officer with effect from 1/2/2019 at a gross salary of Kshs.50,000/=.* 3. *The Claimant averred that she carried out both duties as provided under the Employment Contract dated 20/6/2018 and also as provided in the Addendum to the Employment Contract dated 1/2/2019, but the Respondent only paid her a salary of Kshs.50,000/= instead of Kshs.100,000/= which amount was due and payable with effect from 1/2/2019 when the Addendum to the Employment Contract took effect.* 4. *The Claimant averred that as at 23/10/2019 when her employment contract was unlawfully terminated the Respondent owed her a total of Kshs.400,000/= in unpaid salary arrears. Further to the afore going, contrary to clause 6.4 of the Respondent's Human Resource Manual (Disciplinary Procedures) even before investigations were conducted she on 30/8/2019 received a "Show Cause Letter" bearing the same date.* 5. *That upon receipt of the aforesaid Show Cause Letter, the Claimant responded thereto vide her Response to the Show Cause Letter dated 30/8/2019. Therein the Claimant explained her position and raised fundamental procedural errors on the part of the Respondent which rendered the disciplinary process not only irregular but unfair and therefore unlawful, i.e :-* * 1. *That the Operations Manager Zamzam Hussein who in so far as she was the accuser and therefore an interested party should not have been the one conducting investigations,* 2. *That due process was not followed as a verdict was already reached before the Claimant had been accorded a fair hearing.* 6. *That once the Claimant challenged the irregularity of the disciplinary procedure undertaken is when belatedly the Respondent constituted a Disciplinary Meeting on 4/10/2019 whose convener once again was Miss Zamzam Hussein and whose presence as an interested party compromised the integrity and due process. The said Zamzam Hussein presided over the disciplinary meeting despite the Claimant's objection which she further raised during the meeting. That she was in the circumstances not accorded a fair hearing.* 7. *That on 28/10/2019 the Claimant's Employment Contract was wrongly terminated vide a Termination of Employment Letter dated 23/10/2019. That in the aforesaid termination of employment letter she was wrongly accused of applying wrong procedure of handling documentation or incoming mails which allegedly resulted in the Respondent Company loosing Kshs.387,587.30.* 8. *The Claimant averred that her termination was unfair, unjust and unlawful for the reasons explained in her letter to the Managing Director Baobab Development Group Limited dated 29/10/2019. Therein she explained why her termination was unfair and the Claimant will rely on the import and tenor of her said letter which she adopts herein verbatim but also adds the following: -* * 1. *That her initial employment contract was as a Relationship/Account (Manager Collections) which job she performed diligently and to the satisfaction of the Respondent Company leading to her confirmation into employment.* 2. *That hardly five months into her contract of employment without consulting the Claimant and further without training the Claimant in respect of the additional duties as stipulated in the Respondent's Human Resource Manual as these duties were not part of the Claimant's métier, the Respondent's Operations Manager Zamzam Hussein assigned the Claimant additional duties as a Receptionist in the 2nd contract described as a Addendum to Employment Contract and which contract the Claimant was required to sign.* 3. *That no Operational Procedures had been shared with her on the flow of documents. This resulted in her tenure in the said role being marked with confusion due to differing instructions from the Operations Manager on treatment of similar issues on different days.* 4. *The Claimant denied that she neglected her role as a receptionist in respect of the events that led to her termination. This is because she acknowledged receiving documents relating to the case of* *Collins Kotonya and Josephat Maina and timeously took them to the Respondent's Legal Office specifically to the Company Lawyer which fact was acknowledged by the Respondent's Lawyer Mr. Kevin Akidiva. A Company lawyer is/was an authorized Officer of the Company.* 5. *That she exercised care and due diligence as expected of her by ensuring that all documents and letters were duly and timely brought to the attention of the relevant office - in this instance the Legal Office, and if the letters were addressed to the Management she would have duly delivered them to the respective office.* 6. *The Legal documents complained off by the Respondent Company related to an execution stage of Court proceedings as it involved auctioneers. That the Respondent Company ought to have been aware of the initial Court Proceedings through Service of Summons to Enter Appearance, the trial of the case and finally judgement. To blame the Claimant for the loss of the judgement sum was arbitrary and unjust as the Respondent had the option of moving the Court to set aside the judgement if they were not represented during the hearing. The Respondent failed to make any attempt at setting aside the judgement but chose to blame the Claimant for matters that were beyond the Claimant's control.* 7. *The Respondent's Operations Manager Zamzam Hussein issued the Claimant with frivolous warning letters (dated 10/7/2019 and 19/8/2019) all calculated to lead to the termination of the Claimant's Contract of Employment. The warning letters were not based on any violations documented in any Procedure Manuals or Policies shared with the Claimant prior to her termination.* 8. *Despite the Claimant writing to the Respondent's Managing Director Mr. Andreas Bolt through M/s. Zamzam Hussein expressing her frustrations under her Supervisor M/s. Zamzam Hussein and calling for an official handover of her new additional job description to enable her perform her duties well the said Managing Director failed, neglected and/or refused to respond.* 9. *The Claimant averred that the Respondent's actions in terminating her employment was unlawful, wrong, unfair and tainted with malice and she claims terminal dues as hereunder:-* + 1. *1 month's salary in lieu of notice Kshs. 100,000/=* 2. *Under payment of salary by Kshs.50,000/- From 1/2/2019 upto 23/10/2010 (8 months) Kshs. 400,000/=* 3. *Maximum Compensation Kshs.100,000/- x 12 Sub - total Kshs.1,200,000/= Kshs.1,700,000/=* **2**.The Claimant in the upshot prayed for the following against the Respondent: - * + - * 1. *Terminal dues of Kshs.1,700,000/=.* 2. *General and exemplary damages compensation as demonstrated above.* 3. *Certificate of employment.* 4. *Costs of this Suit.* 5. *Interest on (a) at Court rates from 23/10/2019 to date of payment.* 6. *Interest on (b) above from date of judgement to date of payment.* 1. The Respondent filed its Amended Response to the Memorandum of Claim dated 18th May, 2023 and averred inter alia as follows: - 1. *The Respondent averred that the Claimant was employed as a Relationship/Account manager (Collection) from 1st November 2018. That during her employment as the Relationship/Account Manager, she was unable to meet her collection targets necessitating the Respondent to halt any further assignment of client files to the Claimant. This fact was duly acknowledged during the Disciplinary hearing of 4th October 2019.* 2. *The Respondent averred that in line with the provision of clause 2 of the appointment letter dated 20th August 2018, the Claimant’s performance was sub-standard necessitating the Respondent to take action by employing the Claimant under a new position that entailed front office management and to offer customer care services to the clients vide an addendum of appointment dated 1st February 2019.* 3. *That prior to the signing of the Addendum, the Claimant and the Respondent’s representative mutually agreed to make changes to the job description without the alteration of the Claimant’s salary. That at no particular time did the Respondent coerce and/or intimidate the Claimant into taking up the position with the aforesaid changes. There is in fact no evidence produced to suggest in the remotest of sense that the Claimant was forced to take up the position as per the Addendum of Appoint Letter dated 1st February 2019.* 4. *The Respondent further averred that as per Clause 9 of the Addendum to Employment Contract dated 1st February 2019, the parties to the Contract duly agreed and accepted that all contracts between the Claimant and the Respondent were superseded and/or cancelled.* 5. *The Respondent averred that the Claimant’s job description provided that the Claimant may be assigned any duties and responsibilities related to the position of receptionist (Customer care) and collection officer. At no particular time did the Claimant perform any duty contrary to the Duties and Responsibilities as provided in the Addendum of Contract of Employment dated 1st February 2019.* 6. *The Respondent averred that the Claimant was employed and was paid an amount commensurate to her responsibilities numerated handsomely and that the claim of unpaid salary is farfetched and an afterthought. No evidence has been placed before the court to suggest that after the Addendum to Employment Contract she was assigned other roles.* 7. *The Respondent averred that the Claimant was misguided in the interpretation of clause 6.4 of the Human Resource manual because the same grants the Respondent the right to conduct investigation on any matter to ascertain whether the offence is a minor offence, major offence or a gross Misconduct as per clause 6.3 of the Policy statement.* 8. *That the interim investigation was as per clause 6.4 (iii) of the Respondent’s Policy Statement. The investigation rested on determining the status of the Kotonya Case this was necessary in order to determine the next cause of action.* 9. *The Respondent averred that after the auctioneers’ action on the Collins Kotonya Case, the case of which documents were mishandled, it went ahead and conducted investigations to ascertain why the Respondent never mounted a defence on that particular case. The outcome of the Investigation found that some employees never followed the proper procedure in handling of the Documents and the same was narrowed down to the Claimant and the Legal department headed by Kevin Akidiva.* 10. *That therefore, the investigation in the Show Cause Letter was in reference to the internal investigation and audit of the Respondent on the Collins Kotonya Case. That the Claimant was given time to respond to the allegation to determine whether her conduct amounted to gross misconduct before any action could be taken by the Respondent.* 11. *That the Claimant was also insincere because at the onset of the investigation into the Collins Kotonya Case, the Claimant together with Mr. Kevin Akidiva who at the time was the Legal officer of the Respondent denied any knowledge of the Court documents. It was until clarification from the then Claimant’s Lawyers’ in the Collins Kotonya’s case confirmed vide their acknowledgement letter that the same was indeed received and signed by Lucy Jerotich the Claimant herein. She further acknowledged receipt during the meeting of 4th October 2019.* 12. *The Respondent averred that the allegation that the Claimant’s response dated 30th August 2019 was the reason for the constitution of a disciplinary panel is false and misguided. The Respondent’s Policy statement clearly stipulates the disciplinary procedures as per clause 6.4 of the Policy statement and as such it is surprising that the Claimant is complaining about the proper procedures being followed. That the allegation that the verdict had already been reached is false.* 13. *The Respondent averred that the management personnel are responsible for constituting a disciplinary committee and as such can nominate anyone. Further the allegation that Zamzam Hussein convened the meeting is false and misguided and that she was present since she was fully conversant with the facts in issue as she was the immediate supervisor of the Claimant. The same was raised during the Hearing and all parties agreed to proceed forthwith with the Hearing. It is also proper to note that nowhere in the policy or the law does it bar Zamzam Hussein as the Operations Manager of the Respondent from participating.* 14. *Further to the above, the Claimant was present and was allowed to be accompanied by a representative during the Hearing. Furthermore, she was accorded proper audience to explain her point of view. That during the disciplinary hearing, the Claimant’s Representative Mr. Simon Muiruri was also present and participated in the hearing until its conclusion. The question of unfair termination therefore does not arise.* 15. *The Respondent averred that the Claimant’s employment was terminated as a result of gross misconduct leading to financial loss noting that the Respondent did not defend the suit and this led a Judgement in default being entered against it for the decretal sum together with auctioneers’ fees and Interest. The Claimant has on several occasions received verbal and written warnings as a result of her misconduct.* 16. *That the Show Cause letter dated 30th August 2019 was a culmination of the numerous acts and omission of her conduct contrary to company policy. That all necessary actions were taken and that all procedures were followed in the eventual termination of the Claimant as a result of gross misconduct.* 17. *The Respondent averred that after full investigation and the conclusion of the Disciplinary Hearing on 4th October 2019, the Respondent had established that the Claimant was negligent which caused tremendous loss to the Respondent and as such the Respondent found her culpable and as such terminated her contract lawfully.* 18. *The Respondent adopted the Respondent’s letter dated 23rd October 2019 together with the Disciplinary Hearing Minutes dated 4th October and signed by all parties in the meeting. That the Claimant acknowledged that she was aware that all letters and correspondences received by her at the reception were to be delivered to the Operations manager. She also acknowledged that she received the court documents and signed the same.* 19. *The Respondent averred that the Claimant’s actions despite numerous warnings amounted to gross misconduct and it violated the Respondent’s Policy Statement necessitating the dismissal.* 20. *The Respondent further averred that the Claimant accepted the terms of employment and that she was fully conversant about her duties in the Respondent as the same were duly explained in the Employment Contract of 1st February 2019. It is therefore a false allegation when the Claimant attempts to assuage this Court that she was ignorant and incapable of performing her functions. That it was purely a company policy procedure that all documents were to be delivered to the operations manager who would then give directions on the next cause of action. In any case if that is the case, it goes without saying that such policies do not require any training and only calls for a proper follow up of the company procedures and rules.* 21. *The Respondent further averred that the Claimant was averse with the responsibilities she was required to undertake. She acknowledges that she received the documents and forwarded them to the legal department. She further acknowledges that she was fully aware that all documents were to be delivered to the operations manager before being assigned to the necessary department. Despite this awareness, she failed to deliver the documents to the Operations manager rather she forwarded them to the legal department and more specifically Mr. Kevin Akidiva who in turn failed to take action. These assertions are well captured in her letter dated 30th August 2019 as well as the Minutes to the Hearing.* 22. *The Respondent relied on the Letter dated 23rd October 2019 and noted that during the Disciplinary Hearing, the Claimant acknowledged that she was aware about the document flow and that pleading confusion is an afterthought to bar the Court from noting the negligence of the Claimant. That the attempt by the Claimant to blame the Respondent for the loss is farfetched noting that if the Claimant had followed the laidout procedure which she was fully aware and delivered the documents to the Operations manager, the Respondent would have taken steps to mitigate the end result and that the auctioneer’s actions would have been avoided.* 23. *The Respondent averred that no letter or complaint was ever sent to the Respondent’s Director prior to the disciplinary hearing as stated. That the Claimant was paid one month’s Salary in lieu of notice. The Allegation of underpayment is denied in totality and that there is no payment due to the Claimant. That Claimant is attempting to benefit twice and as such should not be give an audience on the same. Further the Claimant had demanded for payment of her dues which payments were made.* 24. *The Respondent further averred that the termination was fair and that all proper procedures were followed as espoused in the Employment Act. As such the Claimant is not entitled to any amount of unfair termination.* 25. *The Respondent denied the averments of malice by the Respondent. That no evidence of malice has been produced. The fact that the Operations manager of the Respondent was the immediate supervisor of the Claimant puts the Operations manager at crossroad with the Claimant and as such she is the automatic victim of the Claimant’s lack of competence and responsibility.* 26. *Further, there was no evidence that the warning letters were premeditated and that no responses to the warning letters have been produced to confirm that the same were maliciously issued. That as a result of her supervising role, the Operations Manager is and was responsible for overseeing the Company’s operations and personnel. It therefore goes without saying that if there was any act or omission by the employees including the Claimant, she would be responsible and as such all letters and warnings originated from her office. It is therefore improper and false to suggest any form of malice on the part of the Operations Manager as she was undertaking duties which are provided under her Job Description on any course of business.* 27. *The Respondent averred that the suit brought against it was malicious, false and scandalous and unmerited therefore a waste of court’s time.* 2. The Claimant filed her reply to the amended statement of response dated 28th March, 2024 and averred that the disciplinary proceedings of 4/10/2019 were a sham as the Respondent’s representative Zamzam Hussein inspite of the Claimant’s protest insisted on remaining in the proceedings not only as the accuser but also as the prosecutor and jury all rolled in to one thereat denying the Claimant a just and fair hearing. 3. That the Respondent in addition, without consulting the Claimant picked her alleged representative Simon Muiruri who being in the employment of the Respondent Company was not free to voice his position on any matter save to rubber stamp the actions of the Respondent. 4. The Claimant averred that the Respondent company furnished her with the letter of appointment as relations/Account Manager dated 20/8/2018, the Addendum to Employment dated 1/2/2019 and a single salary slip on the same date when she was proceeding on suspension and required her signature on the said documents which she proceeded to append in good faith. 5. That during the pendency of her employment she kept requesting to be furnished with her employment documents including employment contracts working manual/Instructions to no avail. That though the Respondent deducted her taxes PAYE, NSSF and NHIF the same were to the best of her knowledge not remitted and requires the Respondent to prove such remittances and in default to remit them to the required government agencies. **EVIDENCE** 1. The Claimant’s case was heard on 23rd October, 2025 where the Claimant herein (CW1) testified. She adopted her documents filed with the claim, her supplementary list of documents and her witness statement as her evidence in chief. 2. She stated that it was not true that she was unable to meet collection target. That there was no document to show she never met the target. That no target was set. That the first contract dated 20th August, 2018 took effect on 1st November, 2018. She was designated as relationship and account manager where she was in management. 3. She stated that it was in relation to account manager that she was not meeting target. That she was on probation when she was given another contract. That her work was not substandard. That addendum was additional to duties and she believed her employer was satisfied with her work and that is why she was added duties. 4. In cross examination she confirmed that she held the Account relationship Manager for 5 months and a new contract was thereafter introduced as an addendum. That it was not a new contract but an addition to her contract. That the addendum duties related to the position or those assigned by her supervisor. 5. She confirmed that the addendum did not terminate the previous contract. That paragraph 9 provided that the new contract supersedes and cancels previous contract. That she was given an opportunity to go through it and she did not object to the addendum. That she continued carrying out duties in the previous contract. 6. CW1 confirmed that she was paid Kshs 50,000/= in the previous contract and the addendum did not change her salary. That she expressed dissatisfaction with the salary by writing to the Director but received no response. 7. She stated that she requested for training because she was not offered any support but it was not provided. That she was issued with Notice to Show Cause where it was claimed there were documents she did not handle well and the Respondent incurred a loss. 8. She confirmed that she received the documents and handed them to legal department. That she did not have proof of handing over the documents. That there was no written policy on handling documents. She responded to the show cause letter. 9. She complained about the procedure followed and stated that she performed her duties as required. That she handed over the documents to the Company lawyer. That she was not aware of any investigations on the issue. That she was on suspension during the investigation which was done after notice to show cause. That she had nothing to show investigation was done after her suspension. 10. In re-examination she clarified that the documents were forwarded to the legal department who failed to take action. That the notice to show cause letter was dated 20th August, 2019 while the suspension letter was dated 1st September, 2019. That the show cause letter came before suspension. That the suspension letter mentioned investigation. That the Respondent did not put forward the amount lost. 11. The Respondent did not call any witness and closed its case. **CLAIMANT’S SUBMISSIONS** 1. The Claimant’s Advocates Ombonya & Company Advocates filed written submissions dated 23rd December, 2025. It was submitted that the Claimant's case was uncontroverted and urged the Court to award the Claimant her prayers as pleaded in the Memorandum of Claim dated 31/12/2021. 2. Counsel did not frame issues as the Claimant's Claim was not opposed and proceeded to set proof of the Claim before the Court. On under-payment -Kshs.400,000/= Counsel submitted that the Respondent appointed the Claimant into employment vide a letter dated 20/8/2018 as a Relationship/Account Manager (hereinafter referred to as "the 1st Contract” at an agreed monthly gross salary of Kshs.50,000/= with effect from1/11/2018. That the Contract provided for a Probation Period of 3 months with a clause dealing specifically with termination being clause 8 providing for one month notice before termination. 3. It was submitted that the Claimant's employment as a Relationship/Account Manager was confirmed automatically come -1/2/2019. This was because during the probation period the said contract could have been terminated as per clause 2 of the Contract letter dated 20/8/2018 which provided that the same could be terminated by 14 days’ notice or payment in lieu of the same. That this did not happen and thus confirmation into employment occurred as at 1/2/2019. That having occurred the only way that the said Contract could then be terminated at the very least would have been in accordance with clause 8 of the letter of the employment dated 20/8/2018 i.e. by giving 1 months’ notice which was not done. 4. Counsel submitted that once employment is confirmed the Provisions of part VI of the Employment Act 2001 kick in as regards termination of an employment contract. That the Respondent neither complied with section 43 of the Employment Act nor its own employment Contract. That the employment contract for the claimant to work as a Relationship/Account Manager earning Kshs.50,000/= per month remained in effect up to the time that the claimant’s employment was unlawfully terminated vide the Respondent's letter dated 23/10/2019. 5. It was submitted that the Claimant was given 2nd Contract dated 1/2/2019 which was described as ADDENDUM TO EMPLOYMENT CONTRACT. The said letter began by offering the Claimant the employment in the position receptionist (Customer care) and collection Officer effective from 1/2/2019. That the said contract hereafter referred to as the 2nd contract clearly set out in clause 1 the salary terms as Kshs 50,000/= per month. 6. It was submitted that if the Respondent's argument was that this 2nd Contract was an extension of the 1st contract then nothing would have been easier than to state that the old terms with regard to salary in the 1st contract would be maintained. That the terms contained in both contracts were a replica of the other save for the clause on probation. The opening words of the 2nd Contract confirm that this is a new contract by stating that “we are pleased to offer employment in the position..." That the Claimant was already in employment. 7. It was further submitted that clause 9 of the 2nd Contract was a superfluous clause as could be seen from the same clause in the 1st contract dated 20/8/2018 which notified all and sundry that the said contract cancelled out or superseded any prior agreement between the claimant and the company whereas there was none. That employment contracts cannot be cancelled. They can only be varied and/or terminated as provided in the employment contract documents. 8. It was submitted that the question to ask was, whether there was any other previous agreement between the Claimant and the Respondent relating to her employment as a Receptionist (Customer Care)/Collection Officer even capable of cancellation? That the answer was No. This 2nd employment contract was to commence on 1/2/2019 and there had been no such contract before. The Claimant's salary in the 2nd Agreement was Kshs.50,000/=. 9. That the Claimant demonstrated by production of her salary slip for the month of June, 2019 when both contracts were running simultaneously that her gross salary remained at Kshs.50,000/= whereas she was discharging duties both as an Accounts Manager and also as a Receptionist whose distinctive remuneration status had expressly been outlined by the Respondent's and the Claimant therefore ought to have been earning a total amount of Kshs.100,000/= per month. 10. It was further submitted that the Claimant in her evidence before the Court demonstrated that she was carrying out the 2 tasks i.e. as a Relationship/Account Manager and also as a Receptionist (Customer Care)/Collection Officer. This Claim remained unchallenged. That if the Respondent's contention was to hold that the Claimant's 1st Contract had been cancelled, then that would be tantamount to the Claimant being demoted from an Account Manager to a Collection Officer which would have been an unfair labour practice and contrary to the tenets of natural justice that a party be heard before an adverse position is taken against them. 11. That the provisions of Section 43 of the Employment Act would also come into play. The Respondent did not adduce any evidence to prove that they followed due process. That both parties cannot consent to overthrow the requirements of the law, which are crystal clear that for any lawful employment contract to be terminated the employer is required to prove reasons for termination and in default the termination would be deemed to be unfair within the meaning of Section 45 of the Employment Act, and that would attract compensation as provided under Section 49 of the Employment Act. 12. Counsel submitted that the Respondent had pleaded or attempted to plead that the Claimant did not meet her targets hence the change in employment duties. That the employer had the option of terminating the Claimant's employment while still on probation or extending the probation period. They did not choose that route and cannot make a bed and refuse to lie on it. 13. It was submitted that the Claimant continued to discharge her old duties under the 1st contract, as well as the new one under the 2nd Contract but at the same pay of Kshs.50,000/=. That the 2nd contract clearly provided for remuneration of Kshs.50,000/= for the Claimant discharging her duties as a Receptionist/Collection Officer. 14. It was further submitted that the employer's actions are a violation of the Claimant's Constitutional rights under Article 41 (2) (a) where every worker has a right to fair remuneration. That if the Court were to find that the 2nd contract was an addendum to the 1st contract, counsel urged the Court to find that the Claimant did not receive a fair remuneration for her services rendered as a Relationship/Account Manager and compensate her for that underpayment whose remuneration had been expressly state in the 1st contract to be Kshs.50,000/= per month. 15. Counsel submitted that there was evidence that the Respondent terminated the Claimant's employment contract vide a letter dated 23/10/2019. Consequently, the Claimant proved that from 1/2/2019 to 23/10/2019 she was underpaid by Kshs.50,000/= making a total of Kshs.400,000/=. 16. On one month's Salary in lieu of Notice: Kshs.100,000/= counsel submitted that there is no evidence by the Respondent that they paid the Claimant one month's salary on both contracts in lieu of notice amounting to Kshs.100,000/= as stipulated under their own employment contracts, and/or Human Resource Manual under clause 8.5 dealing with Certificate of Service. 17. On unfair termination: Kshs.1,200,000/= counsel submitted that the Claimant prayed for 12 Months’ salary for her two contracts. That both her employments were unlawfully terminated. The Respondent accused the Claimant of carrying out her Receptionist duties negligently thereat occasioning the Respondent loss of Kshs.387,587.30. That no such loss was proved before the Court by the Respondent. 18. That in fact, the allegation that the Claimant received Court papers relating to the case of Collins Kotonya and Josephat Maina is not proved. There is no case number stated, there are no Court Warrants of Attachment and Sale exhibited. Further, the Respondent has not tendered any documents to show that they actually paid Kshs.387,587.30 to a third party. The Claimant contended inter-alia that she was not trained as a Receptionist and also she was not issued with an Operational Manual for her new positing in spite of requesting for the same. 19. It was submitted that the Claimant’s employment termination was unfair, unjust, and un-procedural in that there was discrepancy in the alleged "due process" involving the issuance of Notice to Show Cause letter dated 30/8/2019 to the Claimant and the purported Disciplinary Proceedings conducted on 4/10/2019:- that a show cause letter dated 30/8/2019 was issued to the Claimant without investigations being conducted contrary to the Respondent's own Human Resource Manual dealing with Disciplinary procedures i.e. clause 6.4 (iv). 20. That it was the Claimant's case that her version of the subject events was not sought hence investigations were not fully conducted if she was not approached to give her side of the story. That the Claimant protested the presence of her immediate Manager Zamzam Hussein during the purported/sham Disciplinary Proceedings where Zamzam was the accuser, Jury and Executioner all rolled into one. Not only was this contrary to the Respondent's own Human Resource Manual Clause dealing with "Grievance Handling Procedures. 21. That Zamzam being the Claimant's Manager was involved in the dispute at hand and should not have participated at all in the purported Disciplinary Proceedings. That the Disciplinary Proceedings ought to have been handled by the Board according to the Respondent's Human Resource Manual. This was not the case herein. Indeed, the Claimant upon receipt of termination letter on 28/10/2019 immediately wrote to the Managing Director her letter dated 29/10/2019 in which she detailed all the unfair treatment meted out against her by the Company's management, and sought a reversal of the termination. There was no response to her said letter from the Respondent Company. 22. Counsel submitted that the Claimant demonstrated that both her employment contracts were unfairly terminated and prays for full compensation of 12 months’ salary as well as general and exemplary damages for the malicious manner in which the Respondent Company handled the Claimant's employment contracts. The same have not been rebutted and urged the Court deems the same as proved and awards general and exemplary damages as prayed. **RESPONDENT’S SUBMISSIONS** 1. The Respondent’s Advocates Kittony Waiyaki Advocates filed its submissions dated 16th January, 2026 and on the issue of whether the Claimant was unfairly terminated counsel relied on the case of **Kenyatta University & another v Fred Obare [2017] KECA 227 (KLR**) where the Court of Appeal emphasized on parties not eroding the trust and confidence between employer and employee. Counsel also relied on section 45(1) and (2) of the Employment Act on what amounts to unfair termination. 2. It was submitted that as the Respondent receptionist (customer care), the Claimant was responsible for receiving documents and there after dispatch them to the operation manager for further action. That all this information was within the Claimant's knowledge. That however, in one particular case of Collins Kotonya, the Claimant failed to observe the layered-out procedure on handling documents and as a result the Respondent was auctioned by the auctioneers thus jeopardizing its image and financial status. 3. That as a result of the auctioneer's action, the Respondent guided by clause 6.4 of its Policy Statement conducted an investigation on why the Respondent had not put their defence on the said particular case and they found that the Claimant failed to follow the proper procedure in handling documents. That following the finding of the investigation, the Claimant was served with a Notice To Show Cause (NTSC) dated 30th August, 2019. Previously, the Claimant had been issued two warning letters dated 10th July, 2019 and 19th August, 2019 respectively for failure to be in her working station thus hindering service delivery. The Claimant responded to the NTSC in a response dated 30th August, 2019. Not satisfied with the response the Claimant was subjected to a Disciplinary hearing on 4th October, 2019 as well captured in the minutes. 4. Counsel relied on the case of **George** **Musamali v G4S Security Services Kenya Limited [2016) KEELRC 1665 (KLR**) where Judge J.N. Abuodha emphasized on the need for both substantive and procedural fairness before termination. That guided by the above decision it was evident that the Respondent acted within the parameters of the law before terminating the Claimant. The Claimant was served with a legitimate charge and was accorded an opportunity to respond to allegations charged against her. 5. That further, the Respondent clearly demonstrated that it had valid reason thus justifying the termination of the Claimant employment. As seen in the Claimant's response to the NTSC and the minutes, it's obvious that the Claimant's conduct indicated a fundamental breach of her obligations under her employment contract. That failure to perform her role as guided by the Respondent Policy Statement speaks to the Claimant's failure to observe due diligence. 6. Reliance was placed on the case of **Kenya Airways Limited v Philip Linyonyi Onyango [2014] eKLR** where the Court of Appeal emphasized that procedural fairness is a cornerstone of employment law in Kenya and as such, that by providing the Claimant with a fair hearing and the right to representation, the procedural threshold was fully met. Additionally, the process was conducted within a reasonable timeframe from the date the misconduct was discovered and at the same time ensured that the Claimant's rights were not prejudiced by undue delay. 7. On the issue of whether the Claimant was underpaid it was submitted that vide a letter of appointment dated 18th August, 2018, the Claimant was employed as a Relationship/Account manager(collection). However, during the employment period as the Relationship/ Account Manager, the Claimant's performance was underwhelming. That as a result, the Respondent guided by clause 2 of the appointment letter dated 20th August, 2018, and noting that the Claimant's performance was sub-standard, the Claimant was employed under a new position that entailed front office management and customer care services to the client as communicated by her new appointment letter dated 1st February, 2019 titled Addendum to Employment Contract. 8. That prior to the signing of the Addendum, the Claimant and the Respondent's representative mutually agreed to the Claimant's job description without alteration of the Claimant's salary a fact the Claimant acknowledge during the Disciplinary hearing dated 4th October, 2019 and signed by the Claimant as true events at the hearing. 9. That it was unfortunate that the Claimant would openly lie that she was assigned other roles after the signing of the Addendum. That the Claimant's Claim for under payment is farfetched, an afterthought with an intent to benefit from what she is not entitled to. 10. That it is trite law that the burden of proving specific monetary claims in this case underpayment rests squarely on the Claimant and as far as the Respondent is concerned, the Claimant has failed to provide specific particulars and supporting evidence to substantiate the alleged underpayment. Counsel relied on the case of **Kiarie v Board of Management Nguku Secondary School [2025] KEELRC 795 (KLR**) Judge Onesmus N Makau dismissed claimant of underpayment by holding that that it "lack particulars and supporting evidence and therefore they must also fail." 11. That guided by the above Judgment the Claimant failed to discharge this burden of proof by not presenting clear, verifiable evidence to demonstrate any underpayment, and therefore this claim should be dismissed. **DETERMINATION** 1. The Court has reviewed and considered the pleadings, testimonies and submissions by both counsel in support and opposition to the case. The Court has also considered authorities relied on by counsels. First, the court notes that the Claimant’s case remained uncontroverted since the Respondent never called any witness to produce their documents as evidence in this court. Their response and documents therefore remained as mere allegations in this court. 2. The considers main issues for determination as; * + 1. Whether the Claimant’s employment terms were unilaterally changed by the Respondent. 2. Whether the Claimant was unfairly terminated by the Respondent. 3. Whether the Claimant is entitled to the reliefs sought. **Whether the Claimant’s employment terms were unilaterally changed by the Respondent** 1. The Claimant was employed by the Respondent vide the contract of employment dated 20th August, 2018 which was with effect from 1st November, 2018 as Relationship/Account Manager (Collections) at a monthly salary of Kshs 50,000/=. The contract had a probation period of 3 months to mean the Claimant was to be confirmed to this role in February, 2019. 2. The said contract provided that after the expiry of the probation period the Claimant could either be confirmed subject to satisfactory performance, extended due to substandard performance for a maximum of three months or terminated by giving 14 days’ notice of payment in lieu. 3. In this case the Claimant was given another contract dated 1st February, 2019 termed as ADDENDUM TO EMPLOYMENT CONTRACT where she was offered employment in the position of Receptionist (customer care) and collection officer effective 1st February, 2019 at Kshs 50,000/= per month. 4. This court notes that the Respondent alleged that collection was moved to a different office and their collection was below the expected targets. That the Claimant had substandard work hence why she was assigned another duty at front office as a receptionist. This court is of the view that in as much as the new contract was termed as an addendum to the existing contract the same changed the Claimant’s role from Relationship/account Manager(collection) to Receptionist (customer care) and collection officer. In essence therefore, the Claimant’s roles were combined to receptionist and collection officer. This entitled her to remuneration for both position and further an addendum means in addition to and not an amendment of the initial contract. 5. This therefore meant the Claimant was reduced from a Relationship/Account Manager to a collection officer which in the court’s view was a demotion. The salary for the two roles remained Kshs 50,000/= This therefore meant there was unilateral change of the terms of engagement between the Claimant and the Respondent. Although an addendum was supposed to be an addition of role in this case it seems it was change of roles hidden as addendum. The Court further notes that the respondent never took trouble to present their evidence in court to rebut the claimant’s allegation that the addendum assigned her additional roles over which she was entitled to additional remuneration stated in the addendum. 6. Section 10(5) of the Employment Act provides that; *Where any matter stipulated in sub-section (1) changes, the employer shall, in consultation with the employee, revise the contract to reflect the change and notify the employee of the change in writing.* 1. Thus, in law, the Respondent could not unilaterally vary the Claimant’s employment contract without consultation. In **Kenya County Government Workers Union v Wajir County Government & another (2020) eKLR**, the court held that; *“Further, in my view, the common law principle that a unilateral variation of an employment contract is unlawful and amounts to repudiation and breach of contract and the statutory requirement to consult with an employee where there is any variation to the employment contract and more specifically, to an essential term such as the duration of remuneration where the employee would be adversely affected are ingredients and are sub-sumed in the fair labour practices principles.”* 1. The Claimant during hearing confirmed in cross examination that she was given the addendum and given opportunity to read through. That she never objected to the addendum but continued carrying out duties in the first contract and the second contract. That the addendum did not change her salary and she expressed her dissatisfaction with the salary by writing to the director but received no response. 2. The Claimant believed that the addendum added her additional duties to the existing contract. Even though the new contract provided that it supersedes all previous contracts the same was a superfluous clause put in both contracts. The Respondent alleged that the Claimant had substandard work and that is why they gave her a different role. The contract was clear that if the Claimant was performing poorly the Respondent could either extend her probation or terminate her contract. 3. The Respondent waited until the Claimant’s contract was ripe for confirmation to issue another contract as an addendum to override the existing role which then amounted to unilateral change of the terms of employment. There was no evidence produced by the Respondent to show that the Claimant was consulted and understood the addendum contract since she believed it was an addition of roles. 4. The court is persuaded that the Respondent breached the Claimant’s employment contract by changing the terms of appointment without giving reasons and consulting her on the same. **Whether the Claimant was unfairly terminated by the Respondent.** 1. The Respondent alleged that the Claimant was served some documents with regards to**Collins Kotonya and Josephat Maina** which received and did not bring to the attention of the operations manager to take the necessary steps. That the Claimant alleged that she handed over the documents to the company’s lawyer Mr. Akidiva who never took action in the matter. 2. The Respondent alleged that as a result auctioneers auctioned them and they lost Kshs 387,587.30/=. There was no proof of the said loss by the Respondent or human resource directive that the documents had to be given to the operations manager and not the legal department. In addition, the Claimant confirmed during hearing that she was not trained, no manual on the role or supported in the new role of the receptionist. 3. The court therefore finds that despite the unilateral change of the Claimant’s employment terms the Respondent did not have valid and reasonable grounds to terminate the Claimant from employment as required under section 43 of the Employment Act. 4. On the procedure adopted in the termination, the Claimant confirmed that the notice to show cause was issued on 20th August, 2019 while she was suspended on 1st September, 2019 to pave way for investigation. This is to mean she was charged before investigations which went against the Respondent’s HRM Procedure Manual clause 6.4(iv) *that no disciplinary action will be taken against an employee until the case was fully investigated.* 5. This means the disciplinary hearing was a sham because the Respondent charged the Claimant even before investigations were undertaken as required. The Claimant also objected to the presence of Zamzam Hussein her immediate supervisor in the meeting but this request was not adhered to. This went against the Respondent’s grievance Manual which provided that if the immediate management was involved the grievance was to be reported directly to the board. 6. This meant the grievance could be heard by the board in this case. This went against the right to fair hearing under Article 47 of the Constitution and section 41 of the Employment Act on notification and hearing. The termination therefore was unfair under section 45 of the employment Act both substantively and procedurally. ***Whether the Claimant was entitled to reliefs sought****.* 1. Having established that the Claimant was unfairly terminated and his employment unilaterally varied, the court proceeds to award her as per section 49 of the Employment Act, 2007 which makes provisions for appropriate remedies. 2. On the prayer of compensation for unfair termination of employment, having found that the Claimant was unfairly terminated, the court therefore proceeds to take in to account the considerations given under section 49(4) of the Employment Act on the nature of the termination the time the Claimant has worked with the Respondent from November 2018 to October 2019 which roughly one year and make an award of two months’ salary as compensation for unfair termination would be reasonable in the circumstances. 3. On the prayer for one- month salary in lieu of notice since the Claimant was terminated without notice and no proof of the proof of the same the same is awarded as per section 36 of the Employment Act at Kshs 100,000/= 4. On the prayer for underpayment the same is deserved since the claimed rendered service for both roles but was paid for only one of them. The Court therefore awards the underpayment as pleaded since the respondent provided no evidence to rebut the claim. 5. The prayer for general and exemplary damages is disallowed for the reasons that the court is awake to the remedies provided for under section 49 of the Employment Act where this is not one of them the compensation is only compensatory in nature. 6. **In conclusion the Claimant’s claim is hereby allowed with costs as follows;** * 1. **2 months’ salary as compensation for unlawful termination of Employment ….….Kshs. 200,000/=.** 2. **1 month’s salary in lieu of notice………Kshs 100,000/=** 3. **Underpayments …..400,000/-** 4. **General and exemplary damages….** 5. **Costs and interests** 6. **Items (i), (ii) and (iii) shall be subject to taxes and statutory deductions** **TOTAL………………………..……KSHS 700,000/=.** 1. **The Respondent to issue the Claimant with certificate of service.** 2. **It is so ordered**. **Dated at Nairobi this 29th day of May 2026** **Delivered virtually this 29th day of May 2026** **Abuodha Nelson Jorum** **Presiding Judge-Appeals Division**