https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1952

Kenya Union of Journalists & 2 others v BBC East Africa & 2 others (Cause E397 of 2021) [2026] KEELRC 1952 (KLR) (10 July 2026) (Judgment) Neutral citation: [2026] KEELRC 1952 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nairobi Cause E397 of 2021 NJ Abuodha, J July 10, 2026 Between Kenya Union Of Journalists Claimant and Mohammed Ali Mohammed 1st Grievant Bashir Mohammed 2nd Grievant and Bbc East Africa 1st Respondent British Broadcasting Corporation 2nd Respondent Muhyadin Roble 3rd Respondent Judgment 1.By further amended statement of claim dated 17th May, 2021, the claimant union on behalf of the grievants pleaded among others that:a.The Grievants have been employees of the Respondent. The 2nd grievant has continuously worked with the Respondent since 2006. The most recent renewal of his appointment was made vide a letter of employment dated 11th August 2017. The 2nd Grievant has continuously worked with the Respondent since 2016 . The most recent renewal of his appointment was made vide a letter dated 16th April 2018.b.The Interested Party is an employee of the Respondent, who works as the Editor for the Respondents Somali Service based in Nairobi. He was styled as the Complainant in the Disciplinary proceedings that have given rise to the instant suit. Pleadings shall be served upon the Interested Party through the Claimants Advocates office.c.Throughout their employment, the Grievants have served the Respondent with diligence and dedication and zeal. Indeed they have been so dedicated to the Respondents service that they have never been any complaints against them.d.On the 13th April 2021, the Grievants were issued with letters suspending them from employment. It therefore came as a deep shock and surprise when on the 13th April 2021, the Grievants were sent identical letters suspending them from work with immediate effect.e.Alongside the letter of suspension, they were issued with identical notices to show-cause. The Notice to show cause contained allegations that the Grievants had been involved in hiring a private investigator by the name Abdiweli Noor Hersi, to investigate and obtain personal information relating to their colleague, Muhyadin Roble, Editor, Somali Service. That subsequently, the private investigator attempted to extort money from the said Muhyadin Roble and that 6th February 2021, the two were in the company of the private investigator at the Nomad Hotel when one Mohamed Abdinar, aka. Shine entered the hotel to enter discussions with the private investigator.f.It is important to note that the suspension of the Grievants came just two days ahead of the hearing of a complaint by the 2nd Grievant against the Interested Party concerning harassment and mistreatment at work-place. Whereas the Complaint by the Interested Party was heard completed and adverse action taken against the Grievants, the Complaint by the 2nd Grievant against the Interested Party remains unresolved.g.The 2nd grievant replied to the letter and the Notice to show cause vide letters dated 15th April 2021. Both Grievants replied to the letter and the Notice to show cause vide letters dated 15th April 2021.h.In their respective responses, both Grievants requested the Respondent to supply them with copies of evidence forming the basis of the allegations.i.To the contrary, the Respondent never neither supplied the requested evidence nor acknowledged receipt of the responses. 2.The Claimant contends that the Grievants suspension was unfair, discriminatory, unreasonable and unjustified as the same was based on wild, baseless and unsupported allegations coming from the Interested Party, which information the Respondent did not independently verify before suspending the Grievants. 3.The Claimant further contends that the Respondents basis for suspending the Grievants was unreasonable, discriminatory and in violation of the law and the Respondents internal procedures.Particulars of unreasonableness, discrimination and violation of the law:i.Suspending the Grievants on mere suspicion without demonstrable basis.ii.Suspending the Grievants from work on allegations concerning strange third parties, who are neither its employees and on matters not connected to the Grievants work.iii.Failing to avail the Grievants any evidence forming the basis of their suspension, despite claiming that it had done fact finding ahead of the Grievants suspension.iv.With regards to the 2nd Grievant, the suspension came only 2 days ahead of a hearing about a complaint he had lodged about workplace harassment against the Interested Party. The said complaint remains unresolved to date. 4.On 3rd May 2021, the Respondent emailed a communication that the Grievants suspension had been extended by a further two weeks and on the 13th May 2021 the Grievants received a communication inviting them to disciplinary hearing to be held on Tuesday 18th 2021. The hearing notice was so short that it essentially gave the Grievants only one working day of preparation before the disciplinary proceedings. The Claimant avers that the shortness of the Notice was prejudicial to their right to a fair hearing under Article 50 of the constitution and 41 of the Employment Act, 2007. As a result, the Grievants attended the proceedings without sufficiently preparing for the hearing. 5.On the same day, 13th May 2021, the Grievants sought for copies of all the relevant evidentiary material the Respondent wished to rely upon in prosecuting the matter and that the requested information was yet to be supplied by Respondent. The Respondent never furnished the Grievants with copies of the complaint, and any relevant evidentiary material to assist them in preparing for the case against them. 6.Instead of supplying the Grievants with the requested information or indicating that they did not have it, the Respondent sent the Grievants a disciplinary hearing pack containing summary of a purported interview with the Claimant and a witness brought by the Interested Party. 7.The summary indicated that the Respondent had been seized of the matter as early as 5th of March and by 13th April 2021 when the Grievants were suspended, the Respondent had conducted and concluded its fact-finding process. Notably, the entire process involved interviews with only the Interested Party and a Mr. Shine who whereas held out by the Respondent as community elder and mediator, is in fact a close relative of the Interested Party. The Respondent, however, never held any meeting with the Grievants during the fact finding process. This not only breached the Grievants rights under the Respondents disciplinary policy, but also the rights of the Grievants under Article 50 of the Constitution and section 41 of the Employment Act. It also led the Respondent to unreasonably and unfairly suspend the Grievants, which suspension was based on an unreasonable conclusion from partisan fabrications by the Interested Party and his purported witness. 8.The gravity of the allegations notwithstanding, the Respondent did not take any steps both before and after suspending the Grievants, to independently verify the Interested Party's allegations which were, otherwise, fabrications. The Respondent's conclusion that the matter was ripe for a disciplinary hearing was thus, without basis, unreasonable, unprocedural and a violation of the Respondents own disciplinary policy, which pursuant to section 12 of the Employment Act, 2007, is part of the Grievants contract. 9.Further, the investigation summary, which was, in any event, vague, insufficient, and unverifiable, was provided to the Grievants so close to the hearing date, there was very little the Grievants could do to prepare themselves and/or seek professional help. 10.It is also notable that contrary to the rights of the Grievants under section 41 of the Employment Act, and the Respondents own policy to be represented by a Union official, the Respondent has neither notified the Union of the scheduled disciplinary proceedings nor the Grievants of their right to have Union representation in the disciplinary proceedings. 11.As a result, the Union learnt of the proceedings so late in the day that it was unable to prepare to meaningfully represent the Grievants at the hearing. A request by the Union for extension of the timelines was flatly rejected by the Respondent, forcing the Union and the Grievants to appear at the hearing unprepared and only make minimal contribution in the circumstances. The Claimant avers that the Respondents Actions in this regard violated the Grievants rights under Article 50 of the Constitution and section 41 of the Employment Act. 12.It has since emerged that long before commencing the disciplinary proceedings against the Grievants, the Interested Party and/or the Respondent had in fact referred the matter to the Police on 11th February 2021 vide an OB No 67 /11/02/2021. ' 13.Further to reporting to the police, investigations revealed a number of glaring contradictions:i.The Complaint with the police was made only with regard to Bashir Mohamed- the 2nd grievant herein - who had a pending work related complaint against the Interested Party whose hearing was due within 2 days of the suspension.ii.Before the Police, the witness, Mr. Shine and the Interested Party introduced themselves as relatives. There is no mention of him as a ‘community elder' and/or ‘mediator' as held out by the Respondent.iii.The information told to the police by the Interested Party and the witness is that the money sought by the alleged Private Investigator was for the PIs own purpose contrary to what the witness told the Respondent (That the Money was allegedly for the Grievants purposes).iv.Whereas according to the Respondents investigation summary, the witness saw the Grievants in the company of the alleged private investigator at the Nomad Hotel. The information given to the police is that it was he alone, who met the Private Investigator, and there is no mention of the Grievants. 14.It is instructive to note that the police investigations a since been concluded and the said Bashir Mohamed been, vide letter dated cleared of the said accusations. 15.It is instructive to note that after conclusion of the police investigations, Bashir Mohammed, the 2nd Grievant herein was cleared of the accusations vide a letter dated 22nd June 2021. 16.The Claimant contends that the Respondent acted in contravention of the principles established by this Honourable Court in the case of Mathew Kipchmba Koskei -vs- Baringo Teachers Sacco which provide that where in the opinion of the employer the employee's misconduct amounts to a criminal offence, the employer should stay the administrative disciplinary process pending the outcome of the criminal process by the concerned criminal justice agency. In this regard it is instructive to note that the Respondent acknowledged that they did not have the capacity to conduct in-depth investigations that could yield truly independent evidence. It was therefore only reasonable that they should wait the outcome of police investigations. 17.The Claimant contends that the Respondent negligently and unlawfully carried out and presided over disciplinary proceedings whose only intention and effect was to aid and further the ulterior motives of the Interested Party. 18.The discrimination by the Respondent is evident in its manner of hastily suspending the Grievants on mere allegations presented by the Interested Party while failing to process a complaint by the 2nd Grievant against the Interested Party, which was due for hearing on the eve of the 2nd Grievants suspension. 19.As a result of the suspension and the disciplinary proceedings, the Grievants reputation and standing among their colleagues and the general public were severely injured. 20.The Grievants suspension and subsequent unfair and unreasonable disciplinary proceedings have occasioned them untold anxiety, emotional torture and psychological trauma. 21.On 12th August 2021 the Respondent, following the sham disciplinary proceedings terminated the 2nd Grievant and committed the 2nd grievant to a final warning. 22.The Claimant avers that the entirety proceedings leading to the termination of the 2nd Grievant and warning to the were marred with unfair procedure that breached the Grievants right to a fair process under sections 41, 43 of the Employment Act, section 4 of the Fair Administrative Actions Act as well as Article 50 of the Constitution for the following reasons:Particularsa.That the Respondent failed to furnish the Claimants with any evidentiary material on which the hearing would be based. That the express request by the Grievants to be furnished with the evidence on which the allegations were based was met with silence. When a purported summary was finally availed, it was late in the day and was generally ambiguous, vague and unverifiable.b.That the Respondent hastily convened a disciplinary hearing in the middle of a season of Islamic Religious ceremonies giving the Grievants only one working day to prepare for the case against them. The Grievants were therefore unable to sufficiently prepare for the hearing.c.That the Respondent neither informed the Union nor the Grievants about their right to be represented by the Union. As a result the Union only belatedly learnt of the proceedings, thus attending the proceedings without sufficient preparation.d.That the Respondent declined to postpone the hearing despite request by the Union and the Grievants, thus leaving the Union and the Grievants with very little time to prepare in view of the gravity of the proceedings.e.That the Respondent breached its own internal disciplinary policy, which required it to inform and involve the Grievants in the fact finding process as well as inform the Union and allow them to have a Union representative. Contrary to what is contemplated under the BBC disciplinary policy, no meetings were held with the Grievants to get their side of the story, but a conclusion was made solely on the basis of the Interested Party's statement and that of a witness presented by the Complainant. As such the conclusions leading to the disciplinary hearing was based on only the Complainants side of the story. The alleged investigations cannot therefore be said to have been thorough, conclusive, or fair.f.That in contrast, in the case of complaint by the 2nd Grievant against the Interested Party, the fact finding process had involved interviews with the 2nd Grievant as a complainant.g.That at hearing it the Respondent only produced and relied on a summary of a purported investigation report, which was vague, unverifiable and involving summaries of purported interviews with only partisan persons in favour of the Interested Party.h.That despite acknowledging that only the police had the capacity to investigate and obtain conclusive and credible evidence, the Respondent arrived at a decision that was diametrically at variance with the findings and records of the police, all of which they admittedly were aware of and which they had deliberately and mischievously hid from the Grievants. 23.Further to the reasons advanced at para35(above), the decision of the Respondent to terminate the 2nd Grievant and to place the 2nd grievant on a final warning was unfair, unreasonable and in breach of sections 43 and 45 of the Employment Act becausea.the decisions were not backed by any proof of the alleged misconduct.b.The decision was not supported by any credible evidence of misconduct on the part of the Grievants. 24.In compliance with the law and the Respondent's internal policies the Grievants preferred an appeal against the decision to terminate the 2nd Grievant and to put the 2nd grievant on a final warning. 25.The appeal hearing was done on 23rd September 2021 during which the Grievants were asked to supply any further evidence they wished to rely on. Accordingly, the Grievants furnished the Respondents with further evidence including records of police investigations including Statement of Abdinoor Shine, Statement of Abduwelli and the conclusion of the police investigation. 26.On 4th February 2021 the Respondent, through the appeal hearing manager issued a decision upholding both decision to issue a final warning to the. 27.Then decision of the Respondent's appeal hearing manager to uphold the disciplinary hearing manager's decisions was unreasonable, and further violated with procedural unfairness particulars of which are as follows:a.The decisions were not backed by any proof of misconductb.Some of the material relied upon by the Appeals manager was never shared with the Grievants.c.The appeal decisions were inordinately delayed without any reasonable explanation. 28.On the whole, the disciplinary proceedings against the Grievants and the eventual decision to issue the 2nd grievant a final warning and to terminate the 2nd Grievant violated their rights under sections 41, 43 and 45 of the Employment Act, 2007, section 4 of the Fair Administrative Actions Act, and Article 50 and 41 of the Constitution. 29.This Honourable Court have jurisdiction to intervene and issue necessary orders where disciplinary proceedings are manifestly unfair and are being used to intimidate, harass and subjugate employees for no just cause, such as the present instance. 30.The Claimant in the upshot prayed for the following against the Respondent;a.A declaration that the suspension of the Grievants from work was unfair, unreasonable, unjustified, without basis and a violation of their right to fair labour practices.b.A declaration that the Respondent has violated the Grievants Right to a fair hearing under Article 50 of the Constitution, and the right to a fair procedure under section 41(2) of the Employment Act.c.A declaration that the Respondents decision to issue the 2nd grievant a final warning was unfair, unlawful and invalid.d.A declaration that the decision to terminate the 2nd grievant was unfair, unlawful and invalid.e.An order that the final warning issued to the 2nd grievant be and is hereby quashed.f.An order directing the Respondent to reinstate the 2nd Grievant.g.In the alternative, and without prejudice to prayer (f), above an order for compensation for 12 months’ salary for unfair termination.h.Costs of this Suit.i.Interest on (g) and (h) at Court rates. 31.The Respondent filed its Memorandum of Response dated 27th November, 2023 and averred inter alia:-i.In response to paragraph 5, the Respondent states that Mohamud Ali Mohammed and Bashir Mohamed (hereinafter “the Grievants”) were its employees.ii.Paragraph 5a is admitted in so far as it states that the Interested Party was the Respondent’s employee.iii.In response to paragraphs 6 to 13, the Respondent states that sometime in March 2021, it came to the Respondent’s attention that the Grievants could have been involved in a serious breach of the Respondent’s policies and procedures allegedly arising from an acrimonious relationship with their colleague in the workplace, Muhyadin Roble (hereinafter “the interested party”). The particulars of the complaint were that:a.On or before 4th February 2021, the Grievants were involved in the hiring of a Private Investigator, namely Abdiweli Noor Hersi, to investigate and obtain personal information relating to the Interested Party.b.Under the auspices of the person(s) who hired him, the private investigator attempted to extort money from the Interested party (circa 5,000 USD), first through the community mediator Mohammed Shine, and then the Interested Party directly, to “make it all go away.” The Private investigator also attempted to obtain an assurance from the Interested party that he would not revenge against his colleagues (the Grievants herein) and instead guarantee their happiness and keep them comfortable.c.On 6th February 2021, the Grievants were in the company of the private investigator when Mohammed Shine entered the Nomad hotel to discuss with the private investigator.iv.Consequently, the Respondent wrote to the Grievants in a letter dated 13th April 2021 highlighting the aforesaid allegations and requiring them to show cause why disciplinary action should not be taken against them for breach of the Respondent’s HR policies and the Employment Act. The Grievants were required to submit a written explanation in response, which both of them did on 16th April 2021. Due to the sensitive nature of the matter, the Respondent as per clause 13 of its Disciplinary Policy also suspended the grievants with full pay to allow further investigations.After receiving the Grievants’ responses to the show cause notices and undertaking further investigations, on 13th May 2021, the Respondent proceeded to issue the Grievants with a notice to attend disciplinary hearings scheduled for 18th May 2021 which were to be held separately.1.The Respondent avers that it informed the Grievants of their right to be accompanied by a representative of their choice during the disciplinary hearing. The Respondent also shared with the Grievants a Disciplinary Briefing Pack which contained all the relevant information to be referred to at the disciplinary hearing including a comprehensive summary of the investigations and the witness statements obtained from the witnesses interviewed.2.Each of the Grievants sent an email to the Respondent on 13th May 2021 expressly acknowledging receipt of the notices to attend the disciplinary hearings. At no time did the Grievants raise an issue about the Notice period or request for more time to prepare for the disciplinary hearings.3.In further response to the contentions made by the Claimant in paragraphs 6 to 13, the Respondent states that the acts of suspending the Grievants and issuing them with Notices to show cause were consistent with the law and the Respondent’s mandate to discipline its employees in light of the serious and sensitive complaints made against them.4.The Respondent refutes the contents of paragraphs 13 and 14 which allege that the Grievants were never supplied with information which formed the basis of the complaint made against them.5.In response to paragraph 16, the Respondent states that the Grievants were accorded sufficient time within which to prepare for the disciplinary hearing and respond to allegations made against them. The Grievants never raised an issue about the notice period and neither did they seek more time to prepare. As such, the Grievants did not suffer any prejudice and any allegations to the contrary are denied and the Claimant is put to strict proof thereof.6.Further, each grievant attended the disciplinary hearing as scheduled on 18th May 2021 and were accompanied by their representative, Advocate Felix Oduor, who also addressed the disciplinary panel. The minutes of these proceedings were taken. At no point did the Grievants or their representative raise any issue regarding the notice period preceding the disciplinary hearing.7.The contents of paragraph 20 are denied and the Claimant is put to strict proof thereof. The Respondent states that it undertook the investigation phase and disciplinary process cautiously and in good faith owing to the sensitivity of the serious allegations made against the Grievants. The Respondent states that it did not breach its disciplinary policy or any law in the course of the disciplinary process and neither did it act unreasonably and/or unfairly.8.In further response thereto, the Respondent states that the Grievants were accorded an opportunity to pursue an appeal against the disciplinary panel’s decision. However, the Grievants were unsuccessful in their effort to convince the appeal board to set aside the decision of the disciplinary panel. Setting aside or upholding the disciplinary panel’s decision were options amenable to the appeal board and the board’s refusal to overturn the panel’s decision is not proof of unfairness as the Claimant purports.9.The Respondent asserts that it acted in good faith taking into account the gravity of the matter and the sensitivity of the security concerns involved. The Respondent also acted in cognizance of its duty of care to consider the security of all the involved parties, keeping the investigation and the identities of the persons involved confidential. It denies violating the Grievants’ right to fair hearing or fair labour practices and the Claimant is put to strict proof thereof. 32.The Respondent ultimately prayed that the claim be dismissed for lack of merit and that the costs thereof be awarded to the respondent. Evidence 33.The Claimant’s case was heard on 5th November, 2024 and the 2nd grievant Mr. Bashir Mohammed after adopting his witness statement and relying on the documents filed with the claim, stated that he was a career journalist and that the respondent was his employer having joined in August, 2016 and that he left employment on 12th August, 2021 and that he considered termination of his service unfair. It was his evidence that he was never given the evidence to support the extortion charges against him and that he was not allowed adequate time to prepare for his defence. According to him, there was allegation that he was sighted sitting in a restaurant in Eastleigh (Nomad) with the interested party yet at the material time he was in the office filing a story. He was suspended, issued with a notice to show cause letter containing the charges and disciplinary briefing pack. According to him the disciplinary process was flawed as he was. Not given adequate time to prepare for his defence. Mr. Bashir further stated that before the suspension, he was concerned about the way he was treated. 34.He complained that the date on the show cause letter was different from the disciplinary outcome and that he provided evidence that he was at the BBC premises at the material time but it was never considered and further that he never signed the minutes of the disciplinary hearing. He appealed the decision because he was not satisfied with the outcome. According the 2nd grievant, he provided more evidence against the charges he was facing including the access card, printout of the access card holder’s access history and that he was never furnished with the evidence the respondent was relying on and that he was never shown the statement by the interested party. The outcome of the police investigations was never shared. He further stated that the police were investigating extortion charges and that the interested party reported the issue to the police introducing himself as a community elder and recorded a statement with the police. The outcome of the police investigations clearing him of the allegations was communicated to the respondent. He concluded his examination in chief by stating that the termination affected his standing in society and that it affected his career as a journalist. 35.In cross-examination he stated that was working as a freelance journalist not attached to any media house. It was his evidence that he had a grievance against the interested party and that he was informed by the respondent that his grievance against the interested party would be heard on 14th April but did not file such evidence before the court. Asked about one, Tom Kelly, he acknowledged that he knew him and that he was International Case Manager. He stated that Kelly approached him and advised him not to pursue the matter formally and recommended the withdrawal of the grievance. It was his evidence that he responded to Tom’s recommendation through email but did not have the email response in his documents before the court and further that he did not attach Kelly’s recommendation since it was informal and that Tom was not involved in the disciplinary process. 36.Mr. Bashir further confirmed that the allegations against him were contained in the notice to show cause and that he asked for additional time to prepare. At the first hearing he was accompanied by a Mr. Erick Oduor and that he asked for more time to prepare. Regarding investigations, he stated that he was not aware that there were investigations about him. He further stated that he knew one Samuel Ogada and that he was a security expert and that he was provided with Ogada’s notes during the appeal stage and not at the initial disciplinary hearing and further that he was not provided with evidence and statements relied on at the trial to prepare himself but he admitted that he was provided with the disciplinary briefing pack found at page 42 to 45 of RBD. 37.Concerning private investigator, he stated that he never met him and was not able to defend himself at the hearing and that he obtained the police statement found at page 102 to 112 of RBD and that he requested for them in writing but the letter for request was not before the court. 38.In re-examination he stated that statements from the police were forwarded to the appeals hearing and that the respondent never sought to authenticate the document and that his work email was deactivated immediately he got suspended and that the evidence he was to rely in his defence was withheld by the respondent when they deactivated his work email and that he responded to the notice to show cause and asked for more information but were only provided with the disciplinary briefing pack. He further stated that he asked for the minutes but was never provided with any. 39.The second grievant Mr. Mohammed Ali testified that he was a journalist and that the respondent was his employer at the material time. He was employed in 2007 and worked until 2023. In 2021 he was suspended from work and he felt the suspension was unfair. He was however reinstated with a warning for a year. It was his evidence that the suspension was followed with a notice to show cause containing several allegations against him. It was his evidence that he was not aware that he was under any investigation and that he was only issued with a disciplinary briefing pack and further that he was never given a chance to clear his name prior to the suspension. He stated that he recorded a witness statement which he sought to rely on as his evidence in chief. He also relied on the documents produced by the 2nd grievant. 40.It was Mr. Ali’s evidence that he appealed against the termination and denied being at the alleged hotel at the material time and that he spent most of the day at home and that he provided evidence in support of that at the disciplinary hearing. 41.In cross-examination he stated that the appeal outcome was in February, 2022 and that the warning expired in August, 2022. He further stated that his contract was terminated on account of redundancy and this was on 28th March, 2023 after the warning had expired. He further stated that there was no evidence that the 2nd grievant was at the hotel on 7th February and that Bashir had evidence of where he was at the material time. 42.In re-examination he stated that he had to write a statement as per the respondent’s policy and further that he was only given a disciplinary briefing pack and that the process started before he was given a chance to defend himself. According to him he received a letter inviting him for disciplinary hearing but it was an IDD weekend and therefore never had time to prepare. He denied involvement in the hiring of the private investigator and that he had never met him. 43.The respondent on the other hand called one witness Ms. Anne Njeri who stated that she was the Regional Director for BBC-Africa and that she recorded a statement on 23rd April, 2024 which she adopted as her evidence in chief. She also produced the documents filed by the respondent as exhibits in the matter. She further stated that Mr. Ogada had left the respondent’s employment. He could have left around 2023. 44.In cross examination she stated that the respondent was served with the claim after Mr. Ogada had left the respondent and that no witness statement was recorded by Mr. Ogada. Ms. Njeri further stated that the respondent has a disciplinary policy and that at page 149 of RBD was a fact-finding investigation and that it was used in tandem with the staff handbook. That the fact-finding investigation was a mandatory process. Regarding the issue leading to the termination of the grievants, she stated that the respondent was notified by one of the employees, Muhyadin Robley that his colleague Mr. Mohammed (2nd grievant) had hired a private investigator to investigate Robley’s educational background and documents. The respondent was informed of this during a meeting. It was her evidence that the respondent did not talk to or interview the grievants during the fact-finding mission and that it was not a requirement of the HR Policy Manual. Ms. Njeri further stated that she was aware of the decision in Cause No. 287 of 2019 (Fred v. BBC). 45.The witness further stated that the respondent relied on information from one, Mr. Shine and that he had spoken to Mr. Ogada but Shine was not called as a witness during the disciplinary hearing. Ms. Njeri however stated that she did not know Shine’s other names. She later stated that from the respondent’s records, Shines’ official name was Mohammed Abdinoor Ismail and that he recanted what he said to BBC and the police and that the police issued a report absolving the 2nd grievant. Concerning the disciplinary hearing proceedings, the witness stated that she was not aware if Bashir requested to call a witness and further that she was not aware if he requested to cross-examine Mr. Ogada. Concerning the documents at pages 109 to 119, she stated that these were received by the appeals manager and included information from the police that they were dropping charges against Bashir. She further stated that the grievant or claimant did not object to the proceedings of 18th May, 2025 and she could not remember receiving an email from the claimant (KUJ) or their counsel, seeking more time before the disciplinary hearing and that she was the one corresponding with the grievants. 46.In re-examination she stated that Mr. Ogada had received initial information from the police and the respondent acted on it and that the investigation by the respondent was a corporate investigation and that they did not involve the police since it was internal. 47.Claimant’s counsel Mr. Oduor submitted among others that Alongside the letter of suspension, the grievants were issued with identical notices to show-cause. The Notice to show cause contained allegations that the Grievants had been involved in hiring a private investigator by the name Abdiweli Noor Hersi, to investigate and obtain personal information relating to their colleague, Muhyadin Roble, Editor, Somali Service. That subsequently, the private investigator attempted to extort money from the said Muhyadin Roble and that 6th February 2021, the two were in the company of the private investigator at the Nomad Hotel when one Mohamed Abdinar, aka. Shine entered the hotel to enter discussions with the private investigator. Counsel submitted that was important to note that the suspension of the Grievants came just two days ahead of the hearing of a complaint by the 2nd Grievant against the Interested Party concerning harassment and mistreatment at work-place. Whereas the Complaint by the Interested Party was heard completed and adverse action taken against the Grievants, the Complaint by the 2nd Grievant against the Interested Party remained unresolved. 48.Both Grievants replied to the letter and the Notice to show cause vide letters dated 15th April 2021. In their respective responses, both Grievants requested the Respondent to supply them with copies of evidence forming the basis of the allegations. To the contrary, the Respondent neither supplied the requested evidence nor acknowledged receipt of the responses. Counsel therefore contended that the Grievants suspension was unfair, discriminatory, unreasonable and unjustified as the same was based on wild, baseless and unsupported allegations coming from the Interested Party, which information the Respondent did not independently verify before suspending the Grievants. The Claimant further contends that the Respondent’s basis for suspending the Grievants was unreasonable, discriminatory and in violation of the law and the Respondents internal procedures 49.Mr. Oduor further submitted that on the 13th May 2021 the Grievants received a communication inviting them to disciplinary hearing to be held on Tuesday 18th 2021. The hearing notice was so short that it essentially gave the Grievants only one working day of preparation before the disciplinary proceedings. The Claimant averred that the shortness of the Notice was prejudicial to their right to a fair hearing under Article 50 of the constitution and 41 of the Employment Act, 2007. As a result, the Grievants attended the proceedings without sufficiently preparing for the hearing. Further on 13th May 2021, the Grievants sought for copies of all the relevant evidentiary material the Respondent wished to rely upon in prosecuting the matter but the Respondent never furnished the Grievants with copies of the complaint, and any relevant evidentiary material to assist them in preparing for the case against them. 50.Instead of supplying the Grievants with the requested information or indicating that they did not have it, the Respondent sent the Grievants a disciplinary hearing pack containing summary of a purported interview with the Claimant and a witness brought by the Interested Party. The summary indicated that the Respondent had been seized of the matter as early as 5th of March and by 13th April 2021 when the Grievants were suspended, the Respondent had conducted and concluded its fact finding process. Notably, the entire process involved interviews with only the Interested Party and a Mr. Shine who whereas held out by the Respondent as community elder and mediator, was in fact a close relative of the Interested Party. The Respondent, however, never held any meeting with the Grievants during the fact-finding process. This not only breached the Grievants rights under the Respondents disciplinary policy, but also the rights of the Grievants under Article 50 of the Constitution and section 41 of the Employment Act. It also led the Respondent to unreasonably and unfairly suspend the Grievants, which suspension was based on an unreasonable conclusion from partisan fabrications by the Interested Party and his purported witness. 51.Counsel submitted that the gravity of the allegations notwithstanding, the Respondent did not take any steps both before and after suspending the Grievants, to independently verify the Interested Party's allegations which were, otherwise, fabrications. The Respondent's conclusion that the matter was ripe for a disciplinary hearing was thus, without basis, unreasonable, unprocedural and a violation of the Respondents own disciplinary policy, which pursuant to section 12 of the Employment Act, 2007, was part of the Grievants contract. Further, the investigation summary, which was, in any event, vague, insufficient, and unverifiable, was provided to the Grievants so close to the hearing date that there was very little time for the Grievants to prepare themselves and/or seek professional help. 52.It was also notable that contrary to the rights of the Grievants under section 41 of the Employment Act, and the Respondents own policy, the Respondent neither notified the Union of the scheduled disciplinary proceedings nor the Grievants of their right to have Union representation in the disciplinary proceedings. As a result, the Union learnt of the proceedings so late in the day that it was unable to prepare to meaningfully represent the Grievants at the hearing. A request by the Union for extension of the timelines was flatly rejected by the Respondent, forcing the Union and the Grievants to appear at the hearing unprepared and only make minimal contribution in the circumstances. The Claimant avers that the Respondents Actions in that regard violated the Grievants rights under Article 50 of the Constitution and section 41 of the Employment Act. 53.Counsel contended that the shortness of the hearing notice and the failure to supply the Grievants with any evidentiary documents was prejudicial to the Grievants right to a fair hearing and it emerged that long before commencing the disciplinary proceedings against the Grievants, the Interested Party and/or the Respondent had in fact referred the matter to the Police on 11th February 2021 vide an OB No 67 /11/02/2021. 54.Further to reporting to the police, investigations revealed a number of glaring contradictions, namely:a.The Complaint with the police was made only with regard to Bashir Mohamed- the 2nd grievant herein - who had a pending work related complaint against the Interested Party whose hearing was due within 2 days of the suspension.b.Before the Police, the witness, Mr. Shine and the Interested Party introduced themselves as relatives. There was no mention of him as a ‘community elder' and/or ‘mediator' as held out by the Respondent.c.The information told to the police by the Interested Party and the witness was that the money sought by the alleged Private Investigator was for the private investigator’s own purpose contrary to what the witness told the Respondent that the money was allegedly for the Grievants’ purposes.d.Whereas according to the Respondents investigation summary, the witness saw the Grievants in the company of the alleged private investigator at the Nomad Hotel. The information given to the police was that he was he alone, who met the Private Investigator, and there was no mention of the Grievants. 55.Counsel further submitted that it was instructive to note that after conclusion of the police investigations, Bashir Mohammed, the 2nd Grievant herein were cleared of the accusations vide a letter dated 22nd June 2021. Accordingly the Respondent acted in contravention of the principles established by this Honourable Court in the case of Mathew Kipchmba Koskei -vs- Baringo Teachers Sacco which provided that where in the opinion of the employer the employee's misconduct amounted to a criminal offence, the employer should stay the administrative disciplinary process pending the outcome of the criminal process by the concerned criminal justice agency. In this regard it was instructive to note that the Respondent acknowledged that they did not have the capacity to conduct in-depth investigations that could yield truly independent evidence. It was therefore only reasonable that they should wait the outcome of police investigations.The Claimant contended that the Respondent negligently and unlawfully carried out and presided over disciplinary proceedings whose only intention and effect was to aid and further the ulterior motives of the Interested Party. 56.Regarding discrimination, counsel submitted that this was evident in its manner of hastily suspending the Grievants on mere allegations presented by the Interested Party while failing to process a complaint by the 2nd Grievant against the Interested Party, which was due for hearing on the eve of the 2nd Grievant’s suspension and that as a result of the suspension and the disciplinary proceedings, the Grievants reputation and standing among their colleagues and the general public were severely injured and caused them injury and trauma. 57.On 12th August, 2021 the Respondent, following the sham disciplinary proceedings, terminated the 2nd Grievant and committed the 2nd grievant to a final warning. The Claimant averred that the entirety of the proceedings leading to the termination of the 2nd Grievant and warning to the 2nd grievant were marred with unfair procedure that breached the grievants’ right to a fair process under sections 41, 43 of the Employment Act, section 4 of the Fair Administrative Actions Act as well as Article 50 of the Constitution for the following reasons. In this respect, counsel relied on the case of Duncan Mbathi Mulevi v Wanandege Cooperatives Savings & Credit Society Limited [2018] eKLR where it was stated:“ 16.under section 45 (2) of the Employment Act, termination of employees contract is unfair if the employer fails to prove that it was grounded on a valid and fair reason(s) and that it was done after following a fair procedure. A valid and fair procedure was one that related to the employee's conduct, capacity and compatibility or based on the employer's operational requirements…Fair procedure was that notice and a hearing made before the summary dismissal…That hearing is as important as the law made it mandatory even in the worst case scenario where an employee grossly misconduct oneself. The right to hearing is what amounts to meeting the true tenets of natural justice. Such a hearing in an employment relationship should be conducted in the presence of the affected employee together with another employee of her choice as this is the true meaning of a fair hearing. However senior an employee is, where the case is that of misconduct, the seniority is not justification for failure to meet the mandatory provisions of the law. It remains a sacrosanct duty for an employee to uphold. This was denied of the claimant and I find this to be an unfair labour practice."Further, in the case of “Fredrick Odhiambo v Kenya Safari Lodges & Hotels Ltd [2015] eKLR”, the Court (Justice O.N. Makau) noted thus: 25.Under section 41 of the Act, before terminating the employee's contract on ground of misconduct or poor performance, the employer is enjoined to first explain the reason to the employee in a language he understands and in the presence of another employee or shop floor union official of his choice. Thereafter the employee and his chosen companion are entitled to a chance to air their representations, which must be considered before the dismissal is decided. The said provision is coached in mandatory terms and leaves no option to the employer. 58.Mr. Oduor therefore submitted that the elaborate procedural prescription of section 45 of the Employment Act, the guidelines to Court under paragraph 4 thereof, and indeed the requirement for a fair hearing under section 41 of the Employment Act were not idle. They were anchored on Article 47 and 50 (1) of the Constitution. Article 47 provides for the right to fair administrative process while Article 50 provides for the right to fair hearing. The two constitutional provisions entrench the fundamental principles of natural justice, which includes impartiality in administrative decision making and right to a fair hearing otherwise expressed as ‘Nemo judex in causa sua' and audi alteram partem , respectively.The Fair Administrative Actions Act, elaborates further on the mandatory steps that are essential towards making an administrative decision. Section 4(1) of the Act provides that every person has the right to administrative action which is expeditious, efficient, lawful, reasonable and procedurally fair. Section 12 provides that the Act is in addition to and not in derogation from the general principles of common law and the rules of natural justice. 59.In Petition 34 Of 2014 Gladys Boss Shollei v Judicial Service Commission & Another, [KESC 5 (KLR)] the Supreme Court had occasion to determine the Fair Administrative implications in termination proceedings. Among the guidelines that the Apex Court issued, which, are in our view applicable to the instant matter include:The JSC shall comply with the procedure set out in article 47 of the Constitution and the Fair Administrative Actions Act...An employee shall be given detailed reasons for any administrative action/ decision by JSC.On the whole we submit that the entire disciplinary proceedings against the Grievant were unfair and unlawful. 60.On the issue whether there was failure by the Respondent to adhere to it’s own internal disciplinary policy, Counsel submitted that the Respondent’s disciplinary policy sets out a three-step process, that is fact-finding investigation, followed by a hearing meeting and finally an appeal process, (which is conducted in accordance with the Appeals policy in the event an employee was dissatisfied with the outcome of the hearing meeting. Where the employer elects to conduct a fact-finding hearing, as it did in this case, the employee will usually be informed that a fact-finding investigation is being carried out and when it’s been concluded. In this particular case, it was alleged by the respondent that a fact-finding process was conducted by one a Mr. Ogada. At no point were the grievant involved in the fact finding. As pleaded, the grievant were only ambushed with suspension letters and a notice to show cause. Mr. Ogada, the fact-finding investigator at no point ever participated in the proceedings, whether before the respondent’s internal process or before the honourable court. 61.Concerning breach of the appeals policy, it was submitted that the appeal’s manager held an appeals hearing on 23rd September, 2021. It was expected that the Appeals Manager would rely on the information furnished by the Grievants and where there was any new information share the same with the grievants. The appeals manager however stated stated in his decision that he considered inter alia, email- communication from Jeff Brown, Senior Security Manager Corporate affairs, email communications from Juliet Njeri, Deputy Managing Editor, language services and a fact finding meeting with Dami Awokoya, HR Business Partner. The information from these persons was never shared with the grievants. Their consideration in the outcome was therefore unfair. More notably was the respondents failure to adhere with its own internal procedures. It will be recalled that the respondent had previously set out before this honourable court its internal procedure, in the case of Fred Odeo Sirari -vs- British Broadcasting Corporation and two others. Respondent’s Submissions 62.The Respondent’s Counsel Mr. Wasonga submitted among others that the disciplinary action taken against the Grievants was justified as there were valid reasons for meting out the sanctions against them and they were accorded due process in accordance with the Respondent’s policies and the Employment Act. In this regard counsel submitted that the disciplinary action taken against the grievants was justified and met the threshold set out in section 45 (2)(a) and (b) of the Employment Act as the reasons for disciplining the Grievants were valid and were related to the employees’ conduct. He contended that Section 43 (2) of the Employment Act provided that the reasons for termination were the matters that the employer at the time of termination genuinely believed to exist and which caused the employer to terminate the service of an employee. 63.The Respondent submits that it summarily dismissed Bashir after a disciplinary process that culminated in a hearing where it was established that:a.There was a genuine attempt to fraudulently obtain personal and academic credentials of Muhyadin Roble (the Interested Party) from his alma mater, the United States International University Africa (USIU).b.Bashir had hired a private investigator to investigate Muhyadin and discredit him, particularly his legal status in Kenya as a Somali national.c.Bashir was not truthful regarding the nature of his relationship with his co-accused Ali. 64.The Respondent issued a final warning to the 2nd grievant (Ali) because the Respondent was satisfied on a balance of probabilities that while Ali had not directly hired the private investigator, there were reasons to believe that he was aware of Bashir’s contact with the private investigator. The Interested party had complained to the Respondent that the Grievants had engaged a private investigator to look into his personal information and as an employer, BBC had a duty to investigate this complaint. The BBC embarked on a fact-finding mission in which it found that:a.Interviewed the Interested Party and established that USIU had informed him of phone calls and an email where someone was impersonating the interested party in order to fraudulently obtain his personal and academic information.b.The Interested Party sought assistance from Mohamed Abdinoor Ismail (Mr Shine), who identified the private investigator (“PI”) as Mr Abdiweli Noor Hersi. This PI informed Mr Shine that he had been instructed by the Interested Party’s colleagues and subsequently sought to extort money from him in order to stop looking into his background.c.Further, the respondent interviewed Mr Shine who confirmed that the Interested Party had reached out to him and that he had tried to mediate in an amicable resolution of the issue but that the PI had sought to extort around five hundred dollars from the Interested Party.d.Mr Shine reported that the PI had been instructed by a colleague of the Interested Party whose identity was later disclosed as Bashir (the 2nd Grievant). 65.Further, the Respondent also relied on the notes of Mr Ogada, its Safety and Security Officer, who also looked into the allegations and prepared notes. Mr Ogada stated that:a.He spoke with Mr Shine, who confirmed that he had received a complaint from Muhyadin Roble about a Private Investigator engaged to investigate him and that he (Mr Shine) had attempted to mediate a solution.b.The Private Investigator tried to extort a sum of about $3000 to $5000 from Muhyadin Roble to drop the investigations.c.Muhyadin Roble declined to pay the extortion money, informed the Respondent about the extortion attempt, and reported to the police.d.The Private Investigator admitted to having been sent by an employee of the Respondent, and that he later disclosed the identity of this employee as Bashir. 66.In this respect, RW1 testified that when the claim herein was served on the Respondent, the Respondent’s Safety and Security Officer Samuel Ogada had already left in 2023. This was the reason why the Respondent did not have a witness statement from Mr. Ogada Further the Respondent’s policy against bullying and harassment expressly prohibited any form of bullying and/or harassment and provided that any such behaviour may amount to gross misconduct leading to summary dismissal. The Grievants’ conduct breached this policy, and as such, the Respondent had a valid reason for issuing appropriate sanctions against them. In this respect counsel relied on the case of Mwanga v Eden Reforestation Projects [2024] KEELRC 340 (KLR), the Court found that bullying was a valid reason for an employer to summarily dismiss an employee and contended that in the premises, the Respondent had proved that the reasons for summarily dismissing Bashir for gross misconduct and issuing a final warning to Ali were reasonable and valid. 67.Concerning police investigations, it was submitted by Mr. Wasonga that the law does not impose an obligation on the BBC, or any employer for that matter, to wait for a police report before commencing a disciplinary process and/or disciplining an employee. In this respect, the Claimant’s contention that the Respondent should have awaited the conclusion of the police investigations and/or any criminal proceedings does not have a basis in the Respondent’s disciplinary policy or in the Employment Act. Further, the Respondent’s disciplinary policy explicitly provided that “the outcome of a disciplinary hearing was based on the hearing manager’s reasonable belief with regard to the evidence, not what has been proved beyond reasonable doubt. The Respondent further stated that the disciplinary proceedings undertaken against the Grievants were distinct and separate from any police investigations and/or criminal proceedings instituted thereafter. Further, the Respondent was not the complainant in the police investigations. Therefore, the Grievants’ claim that the Respondent should have waited for the police to investigate the complaint lodged with them before initiating the disciplinary process under the organisation’s disciplinary policy lacked basis. 68.Counsel further submitted that the Claimant’s interpretation of the decision in Mathew Kipchumba Koskei V Baringo Teachers Sacco [2013] KEHC 3584 (KLR) was incorrect as the Court categorically stated that “where in the opinion of the employer the employee’s misconduct amounts to a criminal offence, the employer may initiate and conclude the administrative disciplinary case and the matter rests with the employer’s decision without involving the relevant criminal justice agency. ” Further, the Respondent herein did not initiate and/or refer to the criminal justice system at any stage of the disciplinary process against the Grievants. In any event, the holding by the court was not good law because criminal proceedings and an employer’s internal disciplinary processes have been held by the courts as distinct processes. In contradistinction, the Respondent relied on the decision in Maina v CFC Stanbic Bank Limited [2025] KEELRC 3684 (KLR) where the Court held that:“criminal liability and employee liability are two distinct issues. In Loice Otieno -vs- KCB [2013] eKLR, the Court held that an employer may dismiss on grounds of negligence even if no criminal charges are preferred. 83. It is also settled that an acquittal or charging of another person does not extinguish misconduct in employment”. 69.The Respondent therefore submitted that the documents pertaining to the police investigations that had been adduced by the Grievants do not impugn the validity of the reasons for taking disciplinary action against them. The Respondent also relied on the testimony of RW1 who asserted that the disciplinary process was an internal administrative matter separate from the police investigation and that the disciplinary action taken against the Grievants was on a balance of probabilities.The threshold of proof applied by the Respondent aligned with that taken by the Court of Appeal in Kenya Revenue Authority v Reuwel Wai th aka Gita hi & 2 others [2019] eKLR where it was held that 0.“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. ” The Court also quoted with approval the following passage from the Haisbury’s Laws of England:- “...In adjudicating on the reasonableness of the employer's conduct, an employment tribunal must not simply substitute its own views for those of the employer and decide whether it would have dismissed on those facts; it must make a wider inquiry to determine whether a reasonable employer could have decided to dismiss on those facts and further in the case of Lawrence Nyamichaba Ondari v National Hospital Insurance Fund [2018] KEELRC 1023 (KLR) the court held that1.“it was not for the court to audit the truth of reasons for termination of employment. All the court needs to ensure is that the reasons put forward for dismissal or termination are reasons which the employer reasonably believed to exist and are reasons for which a reasonable employer would terminate the service of an employee. ” This holding was upheld by the Court of Appeal in Ondari v National Hospital Insurance Fund [2025] KECA 687 (KLR).2.69. Regarding whether the 2nd Grievant’s (Bashir’s) grievance against the Interested Party was Unresolved, The Respondent submitted that Bashir did not adduce any evidence to support his contention that the disciplinary proceedings initiated against him was intended to serve an ulterior motive. Whereas Bashir alleged that he had a pending complaint against the interested party, which he purported was unresolved at the time of his disciplinary hearing, the evidence on record demonstrated that his grievance against the Interested Party had already been resolved because he did not adduce evidence to support his claims in that regard. With respect to the allegation that his complaint against the Interested Party remains unresolved, Bashir admitted that:a.He had lodged his complaint against the Interested Party on 14th December 2022.b.More than one month had elapsed between the time Tom Kelly (Respondent’s International Case Manager) responded to his grievance and the date when he was issued with a notice to show cause.c.He failed to disclose that his grievance had been addressed prior to the time he was issued with a notice to show cause (NTSC), creating a misleading impression that the said grievance was tied to the NTSC and/or that his grievance was not addressed.d.Tom Kelly, the case manager who addressed his grievance against the Interested Party, as not involved in Bashir’s disciplinary hearing with respect to the show cause letter. These facts were supported by the letter dated 5th March 2021. 70.Further, the Grievants did not adduce any evidence of their colleagues at the disciplinary hearing, and neither did they request to call witnesses and/or to present any witness statements at the disciplinary hearing. The dates of the email messages sent to his colleagues show that Bashir purported to procure evidence after the disciplinary panel had considered the evidence before it and rendered its verdict. There was no justifiable explanation for why the purported evidence could not have been obtained earlier. 71.The Respondent therefore implored the Honourable Court to find and hold that the disciplinary action taken against the grievants was justified, fair and balanced as it took into account the findings of the fact-finding process, the Grievants’ responses to the show cause letters, the disciplinary pack provided to the Grievants before the disciplinary hearing and their testimonies at the disciplinary hearing. 72.Concerning the 2nd grievant (Ali), Mr. Wasonga submitted that he had no cause of action against the Respondent because he was only issued with a final warning on 12th August 2021, and this warning expired 12 months after the date of issue. Further, Ali’s role was subsequently declared redundant, and he no longer worked for the Respondent. The Respondent therefore submitted that there were no real issues to be determined from Ali’s claim and that quashing of his long-expired final warning several years after he left the Respondent’s employment through redundancy would be a mere academic exercise as there is no means of executing an order that quashes an already expired order. In this regard, the Courts have pronounced themselves that they do not issue orders in vain. 73.With regard to due Process in the disciplinary action against the Grievants Respondent submitted that the disciplinary action taken against the Grievants was lawful and followed due process as it was conducted in accordance with section 45(2)(c) of the Employment Act and the Respondent’s policies. The Respondent’s employee handbook set out the disciplinary process to be followed in its disciplinary policy at pages 23 - 24 of the Respondent’s bundle, to wit that:a.In case a disciplinary issue or a case of misconduct arises, the employee will be informed in writing of the allegations made against them.b.The organization will conduct an investigation to establish the facts and thereafter convene a disciplinary hearing if the investigations reveal that the employee has a case to answer.c.When investigating potential misconduct, the organization may suspend a staff member with or without pay to conduct orderly investigations and/or ensure that evidence is secured and/or to ensure that the witnesses (whether workers or third parties) are protected from intimidation amongst other things.d.The employee will thereafter be advised on the nature of the alleged misconduct and be given an opportunity to state their case before the disciplinary, where they can be accompanied by a colleague of their choice.e.After the disciplinary hearing, the employee will be informed in writing of the decision reached by the disciplinary panel. 74.The Respondent therefore submitted that it adhered to the process in its disciplinary policy and the employee handbook. The Respondent complied with the procedure set out in 3.4.2 above as it undertook a fact-finding mission and upon establishing that the facts warranted a response from the Grievants, the Respondent issued them with Notices to Show Cause, afforded them a hearing and informed them in writing of the outcome of the disciplinary process. 75.Concerning the issue whether the Respondent was mandated to talk to the grievants during fact-finding the Respondent submitted that the BBC employee handbook and disciplinary policy do not impose an obligation on the Respondent to interview or talk to the grievants during the fact-finding stage. Therefore Respondent’s fact-finding complied with its internal procedures by seeking to satisfy itself that there was sufficient basis to require the Grievants to answer to the accusations made against them. RW1 also confirmed in her testimony that there was no requirement for the BBC to talk to the grievants during the fact-finding. In any event, the Grievants did not suffer any prejudice as they were given an opportunity to respond to the allegations against them at the disciplinary hearing stage. 76.Concerning whether there was a requirement to conduct a hearing before suspending the grievants, the Respondent submitted that there was no requirement under the employee policy for a hearing to be conducted before suspending the Grievants who were under investigation for alleged misconduct. Suspension of employees pending fact-finding and/or a disciplinary hearing on allegations of misconduct is provided for under the Respondent’s disciplinary policy. The suspension letters issued to the Grievants clearly indicated that the suspension was a temporary and neutral act simply designed to allow for orderly investigations and to safeguard the integrity of the disciplinary process. The Grievants were also informed of the channels to pursue in the event they required any documents related to the case. In his testimony, the 2nd grievant testified that he was suspended with full pay pending the disciplinary hearing. The Respondent therefore submitted that the Grievants were suspended in accordance with the disciplinary policy, and they did not suffer any prejudice or loss from the suspension. The Court in Galgalo Jarso Jillo v Agricultural Finance Corporation [2021] KEELRC 323 (KLR) held that“to the extent that the suspension was merely to allow for further investigations into the alleged financial irregularities, I cannot fault it. This was only a precursor to the disciplinary events that were to follow. I think that an employer is entitled to suspend an employee from duty in order to facilitate investigations on a matter that affects the relationship between the parties so long as the employee is eventually and within reasonable time afforded a chance to respond to whatever accusations that may have been raised against him/her. An administrative suspension is not intended to be punitive. It is merely a temporary but justified disruption of the contract of service pending finalization of the proposed investigations and or disciplinary process. ” 77.With regard to whether the Grievants were informed of the allegations made against them and whether they were provided with evidence and an investigation report before the disciplinary hearing The Respondent submitted that after the fact-finding, the Grievants were issued with Notices to Show Cause, which set out the allegations that they were involved in hiring a private investigator to investigate and obtain personal information relating to their colleague Muhyadin Roble. Both Grievants responded to the show cause letters in a clear illustration of the fact that they were well-appraised of the accusations made against them. Further that the grievants were issued with a disciplinary pack containing information derived from the investigation and which was being relied on in the disciplinary hearing. RW1 further confirmed in her testimony that the briefing pack was supplied to the Grievants before they responded to the Notice to Show Cause and attended the disciplinary hearing. She also testified that Mr Shine (the Private Investigator) spoke to Ogada and the summary notes were part of the disciplinary pack provided to the Grievants before the disciplinary hearing. Counsel therefore submitted that the Respondent were estopped from feigning ignorance of the allegations made against them when their responses at the disciplinary hearing and the appeal captured their appreciation of the accusations made against them. 78.Concerning whether the Grievants were given adequate time before and during the disciplinary hearing, Mr. Wasonga submitted that the Respondents were given sufficient time to respond to the allegations made against them and to subsequently attend disciplinary hearings. This was borne out by the fact that:a.The Grievants were issued with Show Cause letters on 13th April 2021 and were required to respond to the show cause by 16th April 2021b.The Grievants did not request more time to respond to the Show Cause letters. Rather, they responded one day earlier than the due date, thus demonstrating that the timeframe they were given to respond to the allegations made against them was more than sufficient.c.The disciplinary hearing took place on 18th May 2021, more than a month after the Grievants were issued with their show cause letters. This was sufficient time for them to prepare for a possible disciplinary hearing and even seek to provide further responses or evidence in support of their defence.d.On 13th May 2021, the Respondent invited the Grievants to attend separate disciplinary hearings scheduled for 18th May 2021. This 5-day period was more than sufficient for the Grievants to prepare for the hearing.e.In the email correspondence of 13th and 14th May 2021, Bashir acknowledged receipt of the invite to the disciplinary hearing but did not raise any issue concerning the sufficiency of the time they had to prepare for the hearing.f.On 18th May 2021, the Grievants attended the disciplinary hearings in the company of their Union representative Mr Erick Oduor with whom they actively participated in the hearing. Neither the Grievants nor their Union representative requested more time to prepare nor sought to postpone the disciplinary hearing. 79.In this respect, the Respondent submits that the allegation that the Grievants were not afforded sufficient time to prepare for the disciplinary hearing lacks basis and is an afterthought. Further, the disciplinary hearings for the two Grievants were held separately to allow each of them to individually address the allegations set out in their show cause letters. RW1 testified in court that the Grievants did not request to bring witnesses to the disciplinary hearing or to the appeal hearing and that they did not seek to cross-examine Mr Ogada at the disciplinary hearing. In this respect, the allegation that they were not allowed to cross-examine any individual or to call witnesses was unfounded. 80.The outcome of the disciplinary hearing was conveyed to the Grievants in writing through letters dated 12th August 2021. In the case of Bashir, who was summarily dismissed, he was paid his final dues. The Grievants were duly informed of their right of appeal. Ali filed a notice of appeal dated 25th August 2021 (page 111 - 112 of the Respondent’s bundle) after which his appeal was heard and determined. Bashir’s appeal was also duly considered and dismissed by the Appeal panel upon the conclusion of the internal appellate process. Bashir’s appeal was processed in accordance with the BBC Appeals Policy There was no inordinate delay in processing the appeal as the outcome of Bashir’s appeal was delivered on 4th February 2022, barely a month after the lapse of the time he was given to make any further representations. In any event, Bashir has not demonstrated any prejudice that was suffered in light of the time taken to conclude the appeal. The Respondent submitted that the disciplinary process that the Grievants were taken through met the threshold for procedural fairness as set out in the case of John Jaoko Othino v Intrahealth International [2022] eKLR, where the Court held that:“I have carefully considered the evidence that was placed before me by the parties on the process leading to the dismissal, and have no difficulty in finding that there was adherence to the procedure provided for under section 41 of the Employment Act. In so holding, I have considered that the Claimant was issued with a notice to show cause letter with details of the accusations that were being levelled against him: he was invited to respond to the letter, which he did; he was invited to attend the disciplinary hearing, and he attended; he was accorded an opportunity to exercise his statutory right to accompaniment: the pane! considered his representations before making the decision to summarily dismiss him. ” 81.The Respondent also relied on the decision of the Court of Appeal in Postal Corporation of Kenya -vs- K. Tanui [2019] eKLR where it was held that the four elements that must be present in a fair disciplinary process were:“an explanation of the grounds of termination in a language understood by the employee; the reason for which the employer is considering termination; entitlement of an employee to the presence of another employee of his choice when the explanation of the grounds of termination is made; hearing and considering any representations made by the employee and the person chosen by the employee.” 82.Regarding the question whether the Grievants were entitled to the reliefs sought the Respondent submitted that the Grievants were not entitled to the reliefs sought in the claim as they had failed to discharge the burden of proving that the disciplinary action taken against them was unjustified, procedurally unfair and/or unlawful. In this respect counsel relied on the Court’s decision in Robert Kithinji Kiugu v AAA Growers Limited [2019] eKLR, which held that where termination is fair, the employee whose contract was terminated was not entitled to any relief. Determination 83.The court has reviewed and considered the pleadings, testimonies, submissions and authorities relied on by both parties and takes the view that there are three main issues to be determined in order to resolve the dispute before the court; namely:Aa. aa.i.WhetherWhether the respondent had valid and justifiable reasons to terminate the service of the two grievants.ii.W Whether in carrying out the termination the respondent adhered to the requisite provisions of the Employment Act and its own HR Policy and Manualiii.ASIf the court reaches the conclusion that the grievants were unfairly terminated, what are the appropriate orders for compensation in the circumstances? Whether the respondent had valid and justifiable reasons to terminate the service of the two grievants. 84.In this instant case, the Respondent alleged that it terminated the service of the two grievants on the ground that they hired the services of a private investigator to authenticate the academic credentials and qualifications of the Interested Party and that upon learning of the same, the Interested Party complained to the police and the police commenced investigations and concurrently the respondent internally embarked on a fact finding investigations to verify the allegations. 85.To appreciate the matter better, the court takes note of the following sequence of events:p.On 13th April, 2021, the grievants were issued with a show cause letter detailing the allegations against them. In his response dated 15th April, 2021 to the show cause letter, the 2nd grievant denied all the allegations and expressed his surprise that the allegations were being made weeks after he submitted a grievance against the Interested Party.q.By a letter dated 3rd May, 2021, the grievants were suspended from work to enable investigations as per the BBC-Kenya’s disciplinary policy.r.By a letter dated 13th May, 2021, the grievants were invited for a disciplinary hearing to take place on 18th May, 2021 (date not clear). The letter of invitation repeated the allegations and reminded the grievants that they were free to attend the meeting with a colleague or a representative of their choice. On the same date the grievants were provided with what was described as a “Disciplinary Briefing Pack” which contained a summary of the activities of the Corporate Investigation Team in the matter and their findings. The pack also contained summary of statements of those interviewed during the investigations.s.By a response dated 13th May, 2021, the 2nd grievant acknowledged the letter of invitation to the disciplinary meeting and reiterated that the allegations against him that were to be adjudicated at the disciplinary hearing had already been responded to by him in his response to the show cause letter. The 2nd grievant therefore asked that considering the respondent stated they had concluded the initial investigation, he be provided with the investigation report, complainant’s testimony and any other documents to help him prepare for the meeting.t.In response to this request, Ms. Ann-Marie Ford informed the grievant that the allegations were the same as per the grievants letter and she has his response. She further informed him that the purpose of the hearing was to allow him to answer to the allegations in relation to the information the respondent now had from the investigation and it then be the hearing managers decision after the meeting what action , if anything, will be taken.u.At the hearing held on 18th May, 2021, ( date not clear) the 2nd grievant consistently denied the allegations against him. From transcription provided in the respondent’s bundle of documents, the court notes, the Hearing Manager, Mr. Sanjoy Majumder (SM) despite the fact that the 2nd grievant consistently denied the allegations against him, drew assumptions and conclusions and continued asking the 2nd grievant questions on facts he consistently denied. For instance at page 50-51 the conversation goes as follows:i.“SM: Have you come across a gentleman called Mohamed ShineBM: I don’t know any person by that nameSM: He’s a well-known community figure I’m told. Have you come across him as a journalistBM: I don’t know him personally, he may know me but I don’t know any person by that name.SM: He’s a frequent visitor to the BBC; he appears on a lot of BBC programmes and is from the Somali community but you say you’ve never come across him. He told us he is used often by the BBC; I’m surprised you’ve not come across him.SM: This gentleman is the community editor in the Somali community. He was approached by MR to make enquiries into this disturbing episode to get hold of his passport and his university degrees and he made contact with Abdiweli who you’ve not met. He told us he saw you and MA sitting with Abdiweli and a fourth individual described as a businessman at the Nomad Hotel in February this year. Do you deny this happenedBM: I have not been in the Nomad Hotel this whole year. Which date in February?v.At page 54 of the RBD the conversation between SM and the 2nd grievant (BM) goes as follows:i.SM: Ok, so your explanation is this is MR’s way of getting back at you because of the complaints you’ve raised. In my experience counter complaints are normal, but I’ve never come across a university being approached where an enquiry was made for certificates and copies of his passport and it was made fraudulently, it’s clearly a criminal act. That seems surprising and he’s used that in his accusations. Is there any explanation in your mindBM: No and if there’s any evidence contrary to what I’m saying I’m happy to see it. If there is anything I’m involved in I need to see evidence. Even for the one who said they saw me in the hotel, I’m suggesting to the panel if that is true they should ask for CCTV footage for the first week in February. 86.The court has taken trouble to examine in detail the interaction between the respondent and the grievant over the allegations the latter was facing in order to interrogate whether the respondent discharged the burden cast upon it by sections 41, 43 and particularly section 47(5) of the Employment Act read together. Section 41 requires that before termination or dismissal of an employee, the employer is required to explain the reasons for which termination or dismissal is being considered and further that such employee be accorded a chance to respond and to the allegations and such response be considered. Section 45 obliges an employer to prove reasons for dismissal or termination of service of an employee and such reason ought to be one that the employer genuinely believed to exist and caused the dismissal or termination. This requirement is firmed up by section 47(5) of the Act which reiterates the burden of proof in claims for unfair termination. Under the section, the employee is required to prove that an unlawful dismissal or unfair termination has occurred and the employer to prove and or justify the reasons for dismissal or termination. 87.The ILO Convention C158, Termination of Employment Convention, 1982 (No. 158) stipulates at article 4 that the employment of a worker shall not be terminated unless there is a valid reason for such termination connected with the capacity or conduct of the worker or based on the operational requirements of the undertaking, establishment or service. Further, article 7 provides that the employment of a worker shall not be terminated for reasons related to the worker's conduct or performance before he is provided an opportunity to defend himself against the allegations made, unless the employer cannot reasonably be expected to provide this opportunity. 88.The foregoing safeguards by municipal legislation and international law emphasizes that workers’ rights are human rights and ought not to be derogated from without reasonable cause. The International law, constitutional and statutory provisions governing the world of work are not mere pious platitudes to be glossed over and the employee shown the door. Loss of employment just like loss of life or property is life changing not only to the victim but those who depend on them. 89.The Court has carefully considered the reasons for which the grievants were terminated from service of the respondent and is deeply concerned about the casual and near-predetermined manner the respondent treated the serious allegations the grievants were facing. 90.The grievants were accused of hiring a private investigator a Mr. Abdiwel Noor Hersi to inquire about the academic credentials of the Interested Party. Further the said private investigator through a community elder one Mohammed Shine approached the Interested Party to extort circa USD 5000 to make the issue go away. 91.As a precursor to the disciplinary hearing, the grievants were provided by the respondent with what was described as “Disciplinary Briefing Pack” which contained allegations against the grievants and summary of notes recorded by the investigation team during their meetings with the Interested Party and one Mohammed Abdinar Ismail. It was also stated therein that the investigators spoke to one Sam Ogada who met with Mohammed Abdinar Ismail over the allegations. 92.There is nothing on record that the grievants were interviewed by the investigation team. Further, there nothing on record that the Interested Party was presented as a witness by the respondent during the disciplinary hearing to be cross-examined by the grievants over the allegations they were facing. Further, during the disciplinary hearing, the Hearing Manager Mr. Sanjoy Majumder appeared to the court to have had in mind a predetermined outcome of the process. I say so because going by the line of questioning already alluded to and produced at paragraph 84 above, one cannot help but agree with the perception the court has arrived at. 93.The 2nd grievant when he received the latter inviting him to the disciplinary hearing, he responded by first of all stating that the allegations against him that were to be adjudicated at the disciplinary hearing had already been responded to by him in his response to the show cause letter. The 2nd grievant therefore asked that considering the respondent stated they had concluded the initial investigation, he be provided with the investigation report, complainant’s testimony and any other documents to help him prepare for the meeting. In response to this request, Ms. Ann-Marie Ford informed the grievant that the allegations were the same as per the grievant’s letter and she had his response. She further informed him that the purpose of the hearing was to allow him to answer to the allegations in relation to the information the respondent now had from the investigation and it then be the hearing managers decision after the meeting, what action , if anything, will be taken. 94.The 2nd grievant on his part denied each and every allegation against him and denied knowledge of the persons he was alleged to have met and further denied being at the venue he was alleged to have met these people. The grievant even dared the respondent to provide CCTV footage from the Nomad Hotel to prove him wrong yet Mr. Majumder still persisted that the 2nd grievant was at the alleged venue and knew Mr. Mohamed Shine. 95.The court takes the view that the Interested Party was a central pillar to the allegations the grievants were facing since without his evidence the allegations against the grievants had no ground to stand yet he neither appeared before the disciplinary hearing to give the grievants opportunity to cross examine nor did he appear in court to give his evidence. 96.From the foregoing, the court comes to the inevitable conclusion that the respondent has failed to justify the reasons for termination of the grievants service as required of it under section 43 as read together with section 47(5) of the Employment Act leading to a finding that the termination of service was unfair within the meaning of sectin 45 of the Act. 97.Regarding the issue whether in carrying out the termination the respondent adhered to the requisite provisions of the Employment Act and its own HR Policy and Manual, the court having found that the termination was without valid and or justifiable reasons, will not delve in the procedural processes prior to the termination however a cursory glance and the correspondenc exchanged, showed that the respondent somewhat met, on the minimum, the procedural processes stipulated in the Act. The issue that remains to be decided therefore is the appropriate orders for compensation to make in the circumstances? 98.In the further Amended Statement of Claim the claimant on behalf of the grievant prayed for:a.A declaration that the suspension of the Grievants from work was unfair, unreasonable, unjustified, without basis and a violation of their right to fair labour practices.b.A declaration that the Respondent has violated the Grievants Right to a fair hearing under Article 50 of the Constitution, and the right to a fair procedure under section 41(2) of the Employment Act.c.A declaration that the Respondents decision to issue the 2nd grievant a final warning was unfair, unlawful and invalid.d.A declaration that the decision to terminate the 2nd grievant was unfair, unlawful and invalid.e.An order that the final warning issued to the 1st grievant be and is hereby quashed.f.An order directing the Respondent to reinstate the 2nd Grievant.g.In the alternative, and without prejudice to prayer (f), above an order for compensation for 12 months’ salary for unfair termination.h.Costs of the suit. 99.Prayers (a), (c), (d) and (e) are granted as prayed in view of the finding that the respondent had no valid and or justifiable reason to terminate the grievant’s service. 100.Prayer (b) will be declined since a termination of employment of itself cannot constitute a violation of constitutional rights and fundamental freedoms. To merit an award in that regard the claimant must plead in detail particulars of such breach and the manner in which they have been breached. The grievants herein did not so plead and demonstrate during the trial that their termination of service was so egregious that it violated their constitutional rights and fundamental freedoms. This prayer is therefore rejected. 101.Prayer (f) will not be viable to grant in the circumstances considering approximately five years have lapsed since the termination took place hence an award for compensation for unfair termination of service would be the most practical in the circumstances. The respondent is however not prevented from reengaging any of the grievants in any position if a vacancy so arises. 102.Regarding the quantum of compensation for unfair termination, this will only be applicable to the 2nd respondent since the 1st Respondent Mr. Mohammed Ali Mohammed was never terminated but continued to work until he was later declared redundant. 103.The 2nd Grievant was employed in 2016 and worked until 12th August, 2021 when his service was terminated. The 2nd grievant did not plead his monthly salary however this award being a statutory right cannot be defeated by the fact that it was not pleaded. To be employed the respondent must have been paying the grievant a salary. Considering the reason for termination which this court has found unjustified and the length of service the grievant rendered to the respondent. Further, considering the serious but unproved nature of the allegations against him that led to the termination of his service, this court finds an award of nine months’ salary as suitable compensation for unfair termination of the 2nd grievant’s service. The calculation of the quantum of the award shall be based on the gross salary of the grievant at the time of termination. The grievant is further entitled to salary in lieu of notice as provided in his contract of employment. 104.The above award shall be subject to taxes and statutory deductions but shall attract interest at court rates from the date of this order until payment in full. 105.The claimant is further awarded the costs of the suit. 106.It is so ordered. DATED AT NAIROBI THIS 10TH DAY OF JULY, 2026DELIVERED VIRTUALLY THIS 10TH DAY OF JULY, 2026ABUODHA NELSON JORUMPRESIDING JUDGE-APPEALS DIVISION.