https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2372

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT AND LABOUR RELATIONS COURT** **AT NAIROBI** **PETITION NO. E084 OF 2026** *(Before Hon. Justice Dr. Jacob Gakeri)* **MOSES WAFULA KHISA…..…………………………….…. PETITIONER** **-VERSUS-** **PRUDMAT TECHNOLOGIES LIMITED………...………RESPONDENT** **JUDGMENT** The Petitioner commenced the instant petition vide a petition dated 12th March 2026 filed on 13th March 2026 alleging that the Respondent violated his constitutional rights by terminating his employment without justification and procedural fairness. The Petitioner’s case is that he was employed by the Respondent as a rifer on 1st July 2023 under a written contract of service and discharged his duties diligently and as at the date of termination of employment, his salary was Kshs.16,000.00. The petitioner averred that on 14th January 2025, he was involved in an accident in the court of his employment and the employer paid the medical bill of Kshs.3,500 and directed to resume duty the injuries sustained not withstanding and his salary was reduced from Kshs.16,000 to 12,500 allegedly to offset the medical bill and on pretesting about the deduction, he was summarily dismissed on 5th February 2025 vide an undated letter of termination effective 30 days from that date. Then he consistently worked overtime, and on public holidays but was not paid. The petitioner avers that the termination of employment was unlawful on account that he was not taken through due process and the employer violated the provisions of Articles 28, 41 and 47 of the constitution of Kenya and Sections 41, 43 and 45 of the Employment Act. The petitioner cited the provisions of Article 2(1) and (4), 10, 20, 22, 23, 25, 27, 28, 35, 41, 47,(1) and (2) 258 and 259 of the Constitution of Kenya as the legal foundation of the petition and the provisions of the Employment Act to aver that he was entitled to housing allowance accrued overtime since 1st July 2023, medical expenses and terminal benefit including notice pay, leave and other entitlements. The petitioner prays for: 1. A Declaration that termination of employment by the respondent was unprocedural, unfair, unlawful and wrongful contrary to articles 41 and 47 of the constitution, sections 41, 43 and 45 of the Employment Act and section 4(3) of the Fair Administrative Action Act. 2. A Declaration that the Respondent treated the Petitioner in a degrading and discriminatory manner by summarily dismissing him from employment because of injuries sustained in a road accident thus a perceived liability to the Respondent. 3. A Declaration that the Respondent violated the petitioners right to fair labour practices right to fair disciplinary hearing and administrative process. 4. An order that the Petitioner be compensated by the Respondent as follows: 5. Salary in *lieu* of Notice Kshs.16,000 6. Unpaid house allowance Kshs.49,120 7. Twelve (12) month’s salary Kshs.192,000 8. 35 untaken leave days Kshs.18,666.07 9. Service pay for 614 days Kshs.13,458 10. 17 holidays overtime Kshs.9,066 11. Compensation for underpayment (to be ascertained) 12. General damages for degrading and inhuman treatment and mental anguish and 13. Interest on the amounts above from date of filing till payment in full. 14. An order compelling the Respondent to release to the petitioner all the login credential of his ride-hailing application profiles registered over the internet and various platforms by the Respondent 15. An order directing the Respondent to cease any further usage of the petitioner’s personal profiles on ride-hailing applications outlined by the Respondent during the period of service. 16. On order compelling the Respondent to provide the petitioner with a certificate of service. 17. Costs of this petition. **Respondent’s Case** By Replying Affidavit sworn on 17th June 2026 in opposition to the petition, prudence Wasilwa deponed that she was director of the Respondent duly authorized to swear the Affidavit. The affiant deponed that the petition was incompetent misconceived, frivolous and an abuse of court process as it was an ordinary employment dispute on unfair termination of employment claiming benefits regulated by statute and disclosed no constitutional controversy or enforcement of the constitution and it has not been demonstrated that statutory reliefs were inadequate or ineffective, or unavailable. That the petition did not satisfy the threshold of reasonable precision of the violation complained of and Articles 27, 28, 35, 41 47 and 50 of the constitution had not been pleaded with sufficient factual specificity and permitting the petition to proceed would undermine the doctrine of constitutional avoidance and invocation of Articles 22 and 23 of the constitution of Kenya was improper and the petition ought to be dismissed in *limine.* The affiant admitted that the Petitioner was the Respondent’s employee effective 1st July 2023 paid a consolidated monthly salary inclusive of allowances and the Respondent provided medical cover under the Social Health Insurance (SHA). That the respondent was not informed of the accident or of any hitches at the Kenyatta National Hospital or the SHA system. The affiant further deponed that termination of the petitioner’s employment was procedural under Section 35 of the Employment Act pursuant to a notice or salary in *lieu* of notice and the employer had the righty to do so without assigning any reason. That the employer gave a notice of termination on 5th February 2025. That the petitioner had a personal loan of Kshs.12000 which he had not cleared hence the hold on clearance pay out. The affiant prayed for dismissal of the suit with costs. **Petitioner’s submissions** Concerning the fairness or otherwise of the termination of employment, reliance was placed on the decision **Pius Machafu Isindu v Lavington Security Guards Ltd (2017) KECA 225 (KLR)** to urge that the employer is required to prove that there was a valid and fair reason or justification for the termination of employment, to urge that in this case it was arbitrary and malicious. Counsel submitted that the allegation of conflict with management lacked particulars and was vague and the allegation of general dissatisfaction from major clients was not substantiated as not a single clients complaint report, email or letter was provided. Also cited to reinforce the submission was the decision in **National Bank of Kenya Ltd v Anthony Njue John (2019) KECA 445 (KLR)** of the employer under section 43 of the Employment Act and poor performance required evidential proof. Counsel submitted that the termination of employment was abrupt without reasons and hearing and was thus in violation of the petitioners right to fair administrative action dignity and fair labour practices. On procedural fairness reliance was placed on the provisions of section 41 of the Employment Act and the decision in **Kenya Revenue Authority v Gitahi & 2 others (2019) KECA 300 (KLR)** on the elements of procedural fairness as was the decision in **H Young (EA) Ltd v Kenya Building, Construction, Timber & Furniture Industries, Employees Union (2026) KECA 1020 (KLR)** for the proposition that summary dismissal was not a secret weapon for the employer without giving reasons and according to employee an opportunity to make representations and reliance on section 35 of the Employment Act was misplaced. Reliance was further placed on **Kenfreight (EA) Ltd v Benson K. Nguti (2016) KECA 409 (KLR)** and **Kenfreight (EA) Ltd v Nguti (2019) KESC 79 (KLR)** for the proposition that a contractual or statutory notice did not in itself render a termination of employment lawful. On violation of Article 35, 47 and 50 of the Constitution of Kenya, counsel submitted that the respondent did not issue a notice to show cause to the petitioner and the provisions of Article 47(1) of the constitution was violated as were the provisions of section 4(3) of the Fair Administrative Act and equally violated Article 50 and 41 by failing to provide reasons and hearing. On the right of dignity, counsel submitted that the fact that the petitioner waited from 10 am to 5 pm for treatment violated his right to dignity. Counsel submitted that the petitioner was properly grounded on articles 22 and 23 of the constitution, which prescribe relief and the court had jurisdiction under article 162 (2) (a) of the constitution of Kenya citing the decision in **Mugendi v Kenyatta University & 3 others (2013) KECA 41 (KLR).** On reliefs, counsel cited the decision in **Massawa v Shop and Deliver United (2015) KEELRC 2137 (KLR**) to urge that the termination of employment was unfair and the petitioner was entitled to all the reliefs sought. **Respondent’s Submissions** As to whether the petition satisfies the threshold of a constitutional threshold reliance was placed on the sentiments of the court in **Communications Commission of Kenya & 5 others v Royal Medial Service Ltd and 5 others** on the doctrine of constitutional avoidance as was the decision in **Lugo v Director of Public Prosecutions (2022) KEHC 10574 (KLR)** and **Edward v Attorney General (2016) eKLR** to urge that the suit can be resolved through existing procedures as the dispute was one of termination of employment. That the petition does not meet the test in **Anarita Karimi Njeru v Republic (1979) eKLR** and the petitioner attempted to convert a statutory claim into constitutional violations. As to whether termination of the petitioner’s employment was fair counsel submitted that the Respondent had discharged its obligations under the contract as it gave a 30-day notice period which valid reasons and a final pay out of was outstanding pending payment of a loan by the petitioner. Reliance was laced on the sentiments of the Court of Appeal in **Isindu v Lavington Security Quards Ltd** (supra) on Section 47(5) and 43(1**)** of the Employment Act on the burden of proof to urge that the separation was substantively justified and procedurally under Clouse 7 of the Employment contract, on holding on to the petitioners final dues reliance was placed on Section 19 (1) of the **Employment Act** and the decision in **Florence Achieng Assetto v Faulu Microfinance Bank Kenya Ltd (2021) eKLR** to urge that the loan was recoverable before payment of final dues. That to hold otherwise would enrich the employee by enabling him walk away from a lawful loan contract while demanding full contractual dues to urge that the retention of the dues was justified. On reliefs counsel submitted that the petitioner was not entitled to any constitutional reliefs. Counsel urged that the petitioner was entitled to salary in lieu of notice as the respondent gave a 30 day’s notice, his salary was consolidated overtime had not been proved citing **Isindu v Lavington Security Guards Ltd (supra)** Reliance was also placed on **Owino v Piccadily Holdings Ltd & 3 others: Kenya Railways Corporation & another (Interested Parties) (2026)** on constitutional avoidance to urge that the statutory mechanisms had not been proven to be inadequate. On costs counsel submitted that they should follow the event, thus awarded costs. **Analysis and determination** The facts of this case are largely uncontested save for the circumstances of the alleged accident. It is not in contest that the petitioner was employed by the Respondent on 1st July, 2023 as a Rider at Kshs.13,000 which appear to have risen to Kshs.16,000 by the date of separation and served diligently. The petitioner’s case is that he was involved in a road traffic accident along an unnamed road and sustained head injuries. The circumstances in which the accident happened were undisclosed for instance who else was involved and how did the accident happen? From the contents of paragraphs 9, 10, 11 am 12 of the Supporting Affidavit it is discernible that no other party was involved in the accident and there was no indication of the accident being reported to the police as by law required. The petitioner deponed that despite the fact that the accident took place around 10.00 am, he received medical care around 5.00 pm which he characterized as violation of his right to human dignity. The prescription from Impact medical clinic dated 14th January 2026 had no time stamp or indication. There is evidence of the time when the petitioner was allegedly turned away at Kenyatta National Hospital owing to the failure of the SHA system to pre-approve treatment. The only contentious matter is the mode of separation. While the Respondent maintains that it complied with clause 7 of the contract of employment dated 1st July 2023 and the provisions of the Employment Act, the Petitioner’s case is that termination of his employment was unfair and unlawful The Respondent on the other hand averred and counsel submitted that the instant suit was an ordinary employment dispute raising no constitutional controversy and ought to have been filed as such and the reliefs sought were largely available under the Employment Act. The issues for determination are: 1. Whether the instant petition meets the test in **Anarita Karimi Njeru v Republic** (supra). 2. Whether termination of the Petitioner’s employment by the Respondent was unlawful 3. Whether the petitioner is entitled to the reliefs sought. On the first issue, the threshold of a constitutional petition enunciated in **Anarita Karimi Njeru v Republic (Supra)** is to the effect that; *“where a person is seeking redress from the High Court on a matter which involves a reference to the constitution, it is important that he should set out with a reasonable degree of precision that which he complains the provisions said to be infringed and the manner in which they are alleged to be infringed.”* Under paragraph D of the petition, the petitioner cites Articles 47 of the Constitution of Kenya to aver that the respondent did not issue a notice to show cause, written charges or disciplinary hearing prior to the termination of employment. That the deduction of medical expenses, non-payment of overtime, and house allowance violated the right to fair labour practices, and lack of timely medical and forcing him to report to work violated the right to human dignity, Article 28. In terms of precision, the court is satisfied that the instant petition meets the threshold in **Anarita Karimi Njeru v Republic (Supra)** and **Mumo Matemu v Trusted Society of Human Rights Alliance**. However, as to whether the suit ought to have been filed as a constitutional petition or a claim, this court has encountered numerous such petitions and has heard and determined them for the simple reason that it is clothed with jurisdiction to hear all matters employment and labour relations and connected purposes whether filed as a petition or cause save where the court finds that the petition route is used to circumvent the provisions of section 89 of the Employment. As the whether termination of the petitioner’s employment by the respondent was unfair, counsels adopted contrasting positions with the petitioner’s counsel maintaining that the termination was substantively unfair for want of a valid and fair reason and procedurally unfair for non-compliance with the provisions of section 41 of the Employment Act. Counsel for the respondent submitted that the petitioner had not proved that termination of his employment was unlawful. It is trite law that for a termination of employment to pass muster, it must pass the fairness test by dint of the provisions of section 45 (1) of the Employment Act that no employer shall terminate the employment of an employee unfairly. As aptly capture by Ndolo J (as she then was) in **Walter Ogal Anuro v Teachers Servicer Commission (2013) eKLR** for there to be a fair termination of employment there must have been a substantive justification for the termination of employment and the procedure used must have been fair. The Court of Appeal expressed similar sentiments in **Naima Khamis v Oxford University Press (EA) Ltd (2017) eKLR** 1. No employer shall terminate the employment of an employee unfairly**-** 2. A termination of employment by an employer is unfair if the employer fails to prove- (a)That the reason for the termination is a valid; 1. That the reason for the termination is a fair reason- 2. related to the employee’s, conduct capacity or compatibility or 3. based on the operational requirements of the employer; and (c) that the employment was terminated in accordance with fair procedure. These provisions impose a duty on the employer to prove both elements of for a termination of employment of the pass the fairness test. Counsel for the respondent relied on the provisions of Section 47(5) of the Act to urge that the petitioner had not discharged the burden of proof section 47 (5) provides. For any complaint of unfair termination of employment or wrongful dismissal, the burden of proving that an unfair termination of employment or wrongful dismissal has occurred shall rest on the employee while the burden of justifying the grounds for the termination of employment or wrongful dismissal shall rest on the employer This provision does not contradict the provisions of Section 45 of the Employment Act and has been construed to mean that once the employee makes a *prima facie* case of an unlawful termination of employment or wrongful dismissal, the burden of proof shifts onto the employer demonstrate that it had a substantive justification to terminate the employment and conducted it in accord with a fair procedure. See in this regard **Kamau & 3 others v Dot.com Bakery Ltd (2026) KEELRC1426 (KLR).** In **Josephine M. Ndungu & others v Plan in International Inc (2019)eKLR** the court held; *“Under section 47 (5) of the Employment Act, the burden of proving unfair termination lies with the employee. The said burden is discharged once he establishes a prima facie case that the termination did not fall within the four corners of the legal threshold set out by section 45 of the Act.”* See also **Muthaiga Country Club v Kudheiha Workers (2017) eKLR** In the instant case, the petitioner avers that the respondent had neither complied with the provisions of Section 45, 43 and 41 of the Employment Act as the respondent did not issue a notice to show cause for the petitioner’s response and no hearing was conducted. By averring so, the burden of proof shifted to the respondent to demonstrate that indeed the termination of employment was fair. The undated letter of termination of the petitioner’s employment cited three (3) reasons for termination namely; *“ 1. conflict with management which affected your ability to work effectively with the supervisory team.* *2. failure to meet performance targets, specifically the expense to income ratio expected from your role.* *3. General dissatisfaction from major clients, including complaints about professionalism”* The respondent did not furnish the petitioner with particulars of these allegations. For instance, with whom were there conflicts with the petitioner and about what? How frequent were the conflict? Did they involve the same person(s)?. On failure to meet the targets the respondent ought to have availed information on its evaluation policy or practice, the petitioner’s targets for the relevant period and his performance. Finally, the respondent provided no information on the alleged dissatisfaction. How for instance was the dissatisfaction brought to the respondent’s attention and by whom? The alleged shortcomings of the petitioners together with relevant particulars ought to have been placed before the petitioner for an explanation or response and if the respondent was not satisfied with the explanation, subject the petitioner to a fair disciplinary process. The provisions of Section 43 of the Employment Act require the employer to prove the reason or reasons for the termination of an employee’s employment and if the employer fails to do so the termination is deemed to have unfair. Under Section 45 (2) of the Employment Act, the reason for termination of employment must be valid and fair. It must be founded on facts. In the instant case the respondent did not demonstrate that the reasons it relied upon to terminate the petitioner’s employment were valid and fair as they were mere allegations without supportive particulars. Put in alternative terms, the respondent failed to prove that it had a substantive justification to terminate the petitioner’s employment. Reliance on Clause 7 of the employment contract dated 1st July 2023 was not enough. The three allegations made against petitioner were never put to him for rebuttal prior the termination of employment and there was no disciplinary hearing in consonance with the provisions of section 41 of the Employment Act. The circumstances of this case are similar to those in **Kenfreight (EA) Ltd v Benson K Nguti (2019) KESC 79 (KLR)** where the appellant purported to terminate the respondent’s employment by invoking the contractual termination clause and paying the respondent one (1) months salary in *lieu* of notice. The trial court found that the termination of employment was unfair awarding 12 months compensation. The Court of Appeal dismissed the appeal affirming the trial court’s decision that termination of employment was unfair for non-compliance with the provisions of section 45 (2) of the Employment Act. The Supreme Court dismissed the appeal too with costs. The Supreme Court held; *“We have considered the above mission and note that the Employment Act provides for various mode of terminating an employment one of them being by issuing a termination notice under section 35. The same section gives an employee to dispute the lawfulness or fairness of the termination in accordance with the provisions of section 46; or of an employer or employee to terminate a contract of employment without, notice for any cause recognized law...”* Form the foregoing analysis, it is the finding of the court that the termination of the petitioner’s employment by the Respondent was unlawful for non-compliance with the provisions of the Employment Act. Closely related to the foregoing is the issue whether the respondent violated the petitioners’ constitutional rights, specifically, Articles 28, 41 and 47. It is trite that the Constitution of Kenya guarantees the right to have every person’s dignity respected and protected under Article 28. In **John Gakuo & another v County Government of Nairobi, Governor & 2 others (2018) KECA 462 (KLR)** the Court of Appeal stated *“…a violation of the right to human dignity may be occasioned by breach of specific rights such as bodily integrity, the right to equality or the right not to be subjected to slavery servitude or forced labour. Whilst those are examples rather than a closed catalogue to enable a court conclude that the right to dignity has been breached, violations of that nature must be proved by cogent evidence (see for example COI & another v Chief Magistrate Ukunda Law Court & 4 others (2018) eKLR:”* The petitioner accused the respondent of denying him timely medical care and forcing him to report to work while injured. The court noted that although the petitioner produced a prescription from Impact Medical Clinic dated 14th January 2025, he did not provide evidence of any accident having occurred. There was no police report or any other evidence of the alleged accident. On the alleged denial of medical care, the petitioner adduced no evidence to show that the respondent denied him medical care or forced him to report to work and if he did proceed to the office, then the injury he sustained was minor. The alleged violation of the right to human dignity was not substantiated. On the alleged violation of the right to fair administrative action under Article 47 of the Constitution, the subject is covered elsewhere in this judgment under the provisions of the Employment Act. Finally, the alleged violation of the right to fair labour practices under Article 41 of the Constitution of Kenya was not substantiated. Relatedly, the petitioner, tendered no scintilia of evidence of discrimination by the Respondent or any other person. **Appropriate relief** Having found and held that termination of the petitioner’s employment by the Respondent was unlawful and unfair, the declaration sought is merited. As regards salary in *lieu* of notice the undated letter of termination of employment allegedly issued on 5th February 2025 accorded the petitioner 30 days’ notice pursuant to Section 35 of the Employment Act and separation occurred on 5th March 2026. No salary in *lieu* of notice was payable by dint of Section 36 of the Employment Act. The prayer is dismissed. Concerning house allowance, none was payable because the petitioner’s salary was inclusive of all allowances. The salary was consolidated thus compliant with the provisions of Section 31 of the Employment Act. The prayer is dismissed. On untaken leave days, the contract of employment executed by the petitioner had no provision for annual leave as by law required and the three (3) days compassionate/family responsibility leave was at the discretion of the employer. Granted that the petitioner served for only 20 months and did not indicate that he had a family or proceeded on compassionate leave the 35 days claimed are reasonable and the sum of Kshs.18,666.67 is merited. Concerning service pay, the respondent tendered no copy of the petitioner’s pay slip nor evidence of having of registered its employees under any pension scheme including the statutorily prescribed National Social Security Fund (NSSF) or evidence of having remitted funds to any other body for purposes of the petitioner’s social security. Under Section 35(5) of the Employment Act service charge is payable where the provisions of section 35 (6) of the Employment Act are not applicable as was in this case. The sum of Kshs.13,458.00 claimed as service charge is awarded. On public holidays overtime pay, the petitioner provided no verifiable evidence of having worked during a public holiday. The 17 holidays mentioned were not identified nor were the dates. The claim lacks particulars, and it is declined. On compensation for unlawful termination of employment, the petitioner qualified for the relief under section 49 (1) of the Employment Act. In determining the quantum of compensation, the court has considered that the petitioner was an employee of the respondent for a relatively short period of 20 months, did not express his wish to remain in the respondent’s employment or appeal the respondent’s decision and he did not contribute to the termination of his employment. The court is satisfied that the equivalent of four (4) months’ salary is fair, Kshs. 64,000. Concerning compensation for underpayment, the petitioner did not allege or demonstrate that he was underpaid and by how much. Paragraph E (d) (vii) of the petition indicated that compensation for under payment would be ascertained but it was not. This is a claim for special damages which must be specifically pleaded and strictly proved as held in **Hahn v. Singh** [1985] 129 (KLR). The prayer is disallowed. The claim for damages for degrading inhuman treatment and mental anguish was unsubstantiated and it is declined. The petitioner is entitled to a Certificate of Service by dint of section 51 of the Employment Act. In conclusion, judgment is entered in favour of the petitioner against the respondent in the following terms: 1. Declaration that termination of employment by the respondent was unlawful and unfair. 2. Untaken leave days Kshs.18,666.67 3. Service pay Kshs.13,458.00 4. Equivalent of four (4) month’s salary Kshs.64,000 5. Respondent shall cease any further usage of the petitioner’s personal profiles on rife hailing applications utilized by the Respondent during the petitioner’s employment 6. Respondent it issues a certificate of service to the petitioner within 30 days. 7. Costs of the suit at ½ scale. For the avoidance of doubt, the alleged loan of Kshs. 12,000 owed by the Petitioner was neither pleaded and proved as a Counter Claim nor evidentially demonstrated and cannot be relied upon to deny the petitioner his dues. Orders accordingly. **DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI ON THIS 31ST JULY, 2026.** **DR. JACOB GAKERI** **JUDGE** **ORDER** In view of the declaration of measures restricting court operations due to the COVID-19 pandemic and in light of the directions issued by His Lordship, the Chief Justice on 15th March 2020 and subsequent directions of 21st April 2020 that judgments and rulings shall be delivered through video conferencing or via email. They have waived compliance with **Order 21 Rule 1** of **the Civil Procedure Rules**, which requires that all judgments and rulings be pronounced in open court. In permitting this course, this court has been guided by Article 159(2)(d) of the Constitution which requires the court to eschew undue technicalities in delivering justice, the right of access to justice guaranteed to every person under Article 48 of the Constitution and the provisions of **Section 1B** of the **Civil Procedure Act (Chapter 21 of the Laws of Kenya)** which impose on this court the duty of the court, inter alia, to use suitable technology to enhance the overriding objective which is to facilitate just, expeditious, proportionate and affordable resolution of civil disputes. **DR. JACOB GAKERI** **JUDGE**