https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1827

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT AND LABOUR** **RELATIONS COURT AT NAKURU** **CAUSE NUMBER E097 OF 2024** **BETWEEN** KENYA UNION OF DOMESTIC, HOTELS, EDUCATIONAL INSTITUTIONS, AND HOSPITAL WORKERS .........................................CLAIMANT **VERSUS** 1. SEVENTH DAY ADVENTIST CHURCH [E.A] LIMITED 2. TRUSTEES / EXECUTIVE COMMITTEE, SEVENTH DAY ADVENTIST CHURCH CENTRAL RIFT VALLEY CONFERENCE ......RESPONDENTS *Rika J* *Court Assistant: Emmanuel Kiprono* *\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_* *Hezron Onwong’a, Industrial Relations Officer, for thee Claimant* *Rachuonyo & Rachuonyo Advocates for the 1st Respondent* *Nyagaka S.M. & Company Advocates for the 2nd Respondent* *\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_* **JUDGMENT** 1. The Statement of Claim is dated 4th December 2024. 2. The Claim is brought on behalf of the Claimant’s member, Pastor Samuel Kinuthia Ngugi [the Grievant]. 3. The Claimant avers that the Grievant was employed by the Respondents on 1st January 2001 as a Global Mission Pioneer. He was promoted to District Pastor in 2008. 4. He was suspended on 24th August 2023 for 3 months on full pay. He was alleged to have been involved in embezzlement of funds. 5. He was issued a letter to show cause. He responded on 13th April 2023. He was issued another letter to show cause dated 2nd May 2023, alleging he was of immoral behaviour. He responded, and made a request for details of the fresh allegation. 6. He was invited to appear before the commission investigating the allegations, through letters dated 1st May 2023 and 2nd May 2023 respectively. 7. He was dismissed by the 2nd Respondent through a letter dated 28th May 2023. 8. He informed the 2nd Respondent that he intended to appeal against the decision. 9. The appellate organ, Seventh Day Adventist Church East Kenya Union Conference, heard the Grievant on appeal. 10. The appellate organ wrote to Central Rift Valley Conference Executive Committee, advising that the Grievant’s case is reviewed. 11. Review was not done. 12. The Claimant avers that the Grievant was not heard, and was not found guilty of any of the allegations against him. He had served loyally for 23 years. 13. He was earning a monthly salary of Kshs. 121,086. 14. He prays for: - 15. Declaration that termination was unfair and unlawful. 16. Reinstatement without loss of benefits. 17. 1-month salary in lieu of notice at Kshs. 121,086. 18. Salary up to the date of retirement [13] years at Kshs. 18,889,517. 19. 12 months’ salary in compensation for unfair termination at Kshs. 1,463,039. Total...Kshs.20,463,643. 1. Certificate of Service. 2. Costs to the Claimant. 3. Interest at court rate. 4. The Respondents’ position is that the Claimant does not have the capacity to represent the Grievant; the Grievant was fairly and lawfully dismissed; he was accorded several opportunities to be heard, which included disciplinary hearing, appellate proceedings and review proceedings. 5. It is true that the matter was referred to the 2nd Respondent on appeal. The 2nd Respondent was to conduct review of the case, but the Grievant declined review. Instead, he issued demand upon the Respondents, while the review process was on. 6. It is conceded that he was issued letters to show cause for embezzlement. He was suspended with full salary. He replied to the letter to show cause. During suspension, members lodged another complaint against the Grievant, concerning sexual immorality. He was alleged to have been cohabiting with another woman who was not his wife, and having a child with her. 7. This second complaint resulted in a second letter to show cause. He did not respond to the second complaint, and never denied the charge of sexual immorality. 8. Two separate commissions were constituted to investigate the Grievant. They held sittings on 4th May 2023 and 10th May 2023. The Grievant and the complainants attended. 9. Disciplinary hearings took place on 14th May 2023 and 18th May 2023. He was given a chance to cross-examine witnesses which he declined, instead opting to impose unreasonable conditions on the Respondents, before he could cross-examine. 10. He was found guilty of both embezzlement and sexual immorality. 11. He appealed. He was heard on appeal, with the result that the matter was sent back to the 2nd Respondent for review. 12. The 2nd Respondent invited the Grievant for review on 13th June 2024. He declined invitation, and approached the Claimant Union, who escalated the dispute to Court. 13. He was advised to clear with the Respondents, to access his terminal benefits. He has not cleared. 14. Termination was carried out, in accordance with the law and the SDA Church procedures and policies. 15. The Grievant does not merit the prayers sought. The Respondents urge the Court to dismiss the Claim with costs. 16. The Grievant gave evidence and closed his case on 30th April 2026. The Respondents called 1 witness on the same date, closing the hearing. 17. The Grievant adopted his witness statement and documents [1-11] in his evidence-in-chief. 18. Cross-examined, he told the Court that the Respondent Church is organised around 13 Regions. The Grievant worked in Rift Valley Central Region, Nakuru. He exhausted the internal dispute resolution procedures, before coming to Court. He applied for review. 19. He waited for 3 months. There was no review. He joined the Claimant Union, in exercise of his freedom of association. 20. He confirmed that he was charged for embezzlement and sexual immorality. He was never called back for re-employment. The parties went through mediation. There was no offer of re-employment. If he is recalled, he would serve until retirement. He is willing to resume his pastoral work. 21. He claims about Kshs. 20 million from the Respondents. He had a loan at the time of termination. He did not recall how much was the loan. He has not cleared the loan. 22. He did not have evidence of membership to the Claimant. He did not decline review. The Respondents ought to have reinstated the Grievant, and review the matter, while he was in employment. 23. He was not aware that his lawful wife Cecily, gave evidence against him. She was not a complainant. Commission found evidence was sufficient to warrant the Grievant’s dismissal. 24. Redirected, the Grievant told the Court that the Respondents did not question the Grievant’s membership to the Claimant, when the Claimant engaged the Respondents on the dispute, preceding the filing of the Claim. Pastors are not barred from joining trade unions. The Grievant was 55 years old on termination. He expected to retire at the age of 65 years. Allegations against him were not established. The outstanding loan can be deducted from the Grievant’s terminal benefits. 25. Phillip Munyao Isika told the Court he was the Executive Secretary to SDA Central Rift Conference, until 31st December 2025, when he retired. 26. He adopted his witness statement and documents filed by the Respondents [1-14] in his evidence-in-chief. The Grievant was invited for review of his case on 24th February 2024. He was to attend review on 13th June 2024. He did not attend. His lawful wife was available to give evidence concerning the Grievant’s sexual immorality. The Greivant baulked. The Claim has no foundation. 27. Cross-examined, Isika told the Court that the Grievant was invited for review, through a letter written by Isika on 20th February 2024. He was to appear on 13th June 2024. 28. The commission sat on 14th May 2024 and 18th May 2024, before dismissing the Grievant on 28th May 2024. This was before the appeal and recommendation for review. There was a resolution to dismiss him. Isika could not tell if the decision was made on 14th May 2024 or 18th May 2024. The commission sat on both dates. The Grievant appeared with a person of his choice. 29. The main charge was immorality. The Respondent did not have an audited report, to support the charge of embezzlement. Review was on the charge of immorality. The Respondents called the Grievant’s lawful wife Cecily on review. The Grievant did not attend review meeting. The Grievant had no issue with the charge of embezzlement on review. There was a list of other complainants. Isika did not have the list in Court. 30. Redirected, Isika told the Court that review was mainly on sexual immorality. SDA church stands for monogamy. Isika told the Court that God created Eve, not Eves. 31. The issues are whether, the Claimant has capacity to represent the Grievant; whether termination was fair and lawful; and whether the Grievant merits the remedies pleaded on his behalf. **The Court Finds**: - 1. **Employment.** The Grievant was employed by the 1st Respondent on 1st January 2001, as a Global Mission Pioneer. 2. He was promoted to the position of District Pastor in the year 2008, a position he held when he was summarily dismissed on 28th May 2023. 3. There were 2 reasons given in justifying termination, in the letter dated 28th May 2023: embezzlement of church funds; and sexual immorality. 4. He was on a monthly salary of Kshs. 121,086, at the time of termination. 5. **Capacity of the Claimant.** The Claimant avers it represents the Grievant, on account of his membership to the Claimant. 6. The Grievant testified that he joined the Claimant, and that pastors have freedom of association. He stated that he joined the Claimant in the year 2022. 7. But on cross-examination by Mr. Matoke for the Respondents, the Grievant told the Court that, ‘’I do not have a document to show my membership of KUDHEIHA [Claimant’s acronym].’’ 8. Section 22 of the E&LRC Act allows trade union members to be represented in Court by an office bearer, or official of their trade union. 9. Rule 63 of the E&LRC [Procedure] Rules 2024, allows registered trade unions, to represent themselves, and to represent their members. 10. Rule 63 requires that where a party is represented by a trade union, the trade union shall furnish the Registrar with a list of authorized officers who shall appear in the suit. A copy of the list shall be filed in the respective file. 11. Further, it is a requirement under Rule 63, that a party represented by a trade union, shall serve a notice of appointment to act as such, setting out the names of the persons authorized, and the address of service. 12. Article 22 of the Constitution of Kenya, recognizes associational standing, broadly recognizing the capacity of trade unions, to represent their membership in legal proceedings. 13. It is not doubted under these laws, that the Claimant is a registered trade union, with the capacity to sue on behalf of its members, and its own behalf. 14. However, it is disputed that the Grievant is a member of the Claimant Union, which is a fundamental objection, that required the Claimant Union to adduce evidence, establishing the Grievant’s membership. 15. Representation hinges on membership. When membership is disputed, logically representation cannot be presumed. 16. If the Grievant joined the Claimant in 2022, has he not been supplied with any document showing that membership? 17. Does he not have a membership card, a subscription receipt, or payslip showing trade union deductions made from his salary and remitted to the Claimant? Does he not have a trade union registration number, which he could as a minimum, communicate to the Court in his evidence? 18. He exhibited a payslip for February 2023. It does not contain trade union deduction. 19. He openly told the Court that he did not have any document on membership of the Claimant Union. 20. The Court cannot overlook the objection by the Respondents, on the capacity of the Claimant Union, to initiate and prosecute the Claim. It is not sufficient to plead that the Grievant is a member of the Claimant, but when called upon to show membership, the Grievant categorically states that he does not have any evidence to show membership. 21. The Claimant has not established its capacity to represent Pastor Samuel Kinuthia Ngugi. The answer to the first issue is that the Claimant does not have the capacity to present the Claim on behalf of the Grievant, and to represent him in the Claim. 22. The issue is not whether pastors are allowed to join trade unions. They are allowed to do so, in exercise of their freedom and right of association, under the Constitution, and the Labour Relations Act, 2007. 23. The issue is whether the Claimant established that the Grievant is its member, so as to have the capacity to initiate and prosecute the Claim, on behalf of the Grievant. 24. The Claimant has not shown that the Grievant is it member. The Grievant has not shown through his evidence, that the Claimant is his trade union. There is no associational link, between the Claimant and the Grievant, upon which the Claimant can validly represent the Grievant in Court. 25. Having established this, it would be needless to look into the other issues concerning procedure and justification on termination. 26. Suffice it to say, the Grievant appears not to have exhausted the internal dispute resolution mechanism available to him. 27. He was initially heard by the commission on the charges of embezzlement on 4th May 2023. He was heard on the charges of embezzlement and sexual immorality on 14th May 2023 and 18th May 2023. 28. He was dismissed on 28th May 2023, and allowed to make an appeal. 29. He made an appeal through the Executive Secretary, Central Rift Valley Conference of the SDA, on 2nd July 2023. 30. On 20th February 2024, Dr. Gitonga Marundu, Executive Secretary, East Kenya Union Conference, wrote the Grievant, advising him that his appeal had been considered. 31. It was determined the matter is remitted to Central Rift Valley Conference Executive Committee for review. 32. He was invited for review hearing, but so was his lawful wife. He baulked and did not submit himself to the review process. His view was that he ought to have been reinstated, while his matter was reviewed. 33. In effect he did not exhaust the review process which he instigated through his appeal. 34. Communication from Dr. Gitonga Marundu is dated 20th February 2024. The Claimant wrote to the Respondents a demand letter 3 months later, on 23rd May 2024, alleging that the Grievant was unfairly dismissed, and notifying the Respondent of the Claimant’s intention to file the Claim before the Court. 35. Phillip Isika, Executive Secretary replied to the demand on 28th May 2024, advising the Claimant that review process was ongoing, and intended Claim before Court, therefore premature. 36. The Claimant ignored the review process, and approached the Court. Internal dispute resolution mechanisms of the SDA church, were not exhausted. **IT IS ORDERED**: - 1. **The Claim is declined.** 2. **No order on the costs.** Dated, signed and delivered electronically at Nakuru, under Rule 68[5] of the E&LRC [Procedure] Rules 2024, this 30th day of June 2026. James Rika Judge