https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2208

 **REPUBLIC OF KENYA** **IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI** (ON Makau J on 30th July 2026) **CAUSE NO. E069 OF 2024** **JAMES NJENGA KIMANI............................................CLAIMANT** **-VERSUS-** **BELLMAC CONSULTING LLP............................1ST RESPONDENT** **CM ADVOCATES LLP…………………………………..2ND RESPONDENT** **JUDGMENT** **Introduction** 1. By a Statement of Claim dated 22nd January 2024, the Claimant sued the Respondent for unfairly terminating his employment and prayed for the following: - 2. ***A declaration that the Claimant has the right to be treated fairly, and justly, fair access to justice an equal protection of the law*** 3. ***A declaration that the termination of the employment of the Claimant by the Respondent was wrongful, unfair, and in breach of the Employment Act 2007.*** 4. ***A declaration that the actions of the Respondent violated the Claimant’s constitutional rights to freedom against discrimination and human dignity.*** 5. ***A declaration that the actions of the Respondent violated the Claimant’s constitutional rights to fair labour practices.*** 6. ***An order directing the Respondent to issue the Claimant with a Certificate of Service.*** 7. ***KES 30,714.0 on account of unclaimed leave days.*** 8. ***KES 1,105,703.10 being the equivalent of 12 month’s salary on account of unlawful termination.*** 9. ***KES 92,141.93 on account of 1 month’s salary for payment in lieu of notice*** 10. ***Damages on account of violation of his right to freedom against discrimination, degrading an inhumane treatment.*** 11. ***Damages on account of violation of his right to freedom against discrimination and human dignity.*** 12. ***Costs of this Cause; and*** 13. ***Interest on the sums in prayers (f), (g), (h) and (i) from 31st January 2023 until payment in full.*** 14. The Respondents filed Memorandum of Response and Counterclaim dated 19th July 2024 admitting that they employed the Claimant as an Associate Company Secretary but denied all the allegations of unfair termination. On the contrary it averred that the parties agreed upon a proposed mutual separation but the same was frustrated by the Claimant he remained in employment. 15. They further averred that the Claimant absconded duty from 10th January 2024 and 12th January 2024, she served them with demand letter alleging unfair termination followed by statement of claim on 22nd January 2024. They averred that the suit was filed before exhausting disciplinary process and giving him a termination letter. 16. On 1st February 2024 they invited the Claimant to a disciplinary hearing for absconding duty on 2nd February 2024 but he failed to attend and he was dismissed for absconding duty and failure to show cause why he had absented himself from work. 17. In their counterclaim the Respondents accused the Claimant of securing employment from them through deception and misrepresentation and prayed for refund of all the salary paid to her plus interest at commercial rates and costs of the suit. **Factual Background** 1. The undisputed facts of the case are that:- 2. The Claimant was employed in the position of Associate Company Secretary by the Respondents in August 2022. 3. The Respondents are affiliates but they are legally separate entities. 4. On 21st December 2023 the Claimant was called to a meeting with the Respondents HR Specialist Mr. Fortunatus Otieno where he was informed that the management had decided to terminate his contract of service effective 22nd December 2023 due to the his failure to perform his duties as expected. However, he was given an option to resign and be paid 3 months salary in lieu of notice plus accrued leave. 5. The Claimant selected the mutual separation but asked the HR Specialist to communicate the offer via email and it was done the same day at 4 pm. The Claimant responded on the same day at 5:33 pm choosing a mutual separation, and asked for a meeting. 6. The HR Specialist responded the same day at 6:10 pm agreeing to a meeting on the following day at 8:30 am. The meeting occurred and thereafter the Claimant wrote an email to the HR Specialist proposing a compensation of 9 months salary in lieu of notice as a condition for reaching amicable settlement. 7. The office closed that day for holiday without any settlement until 9th January 2024. The Claimant reported to the Respondent’s office on 10th January 2024 and left shortly without doing any work. 8. On 11th January 2024 The Claimant and the HR Specialist spoke over the phone and thereafter the HR Specialist wrote him an email dated even date telling him that the offer of three months salary in lieu of notice plus accrued leave still remained. 9. The Claimant never responded but instead served a demand letter on 12th January 2024 through his lawyer. On 26th January 2024, the HR Specialist served the Claimant with show cause letter to explain his continued absence from work from 9th January 2024, general neglect and duty, and applying for the job without the requisite qualifications. 10. The Claimant never responded but instead filed this suit. **Evidence** 1. The Claimant testified as CW1 and adopted his written statement dated 22nd January 2024 as his testimony. He then produced 7 documents in the list dated 22nd January 2024 as his exhibits. He also adopted his Replying Affidavit dated 26th April 2024 and the documents annexed thereto as evidence. 2. On cross examination, 3. He admitted that the 1st Respondent advertised the position of Company Secretary and he was not qualified and as such he was appointed as an Associate Company Secretary. He confirmed that he held Bachelor of Management Technology degree. 4. He admitted that he never formally raised grievance about discrimination during his employment contending that there was no formal way to do so. 5. He admitted that on 21st December 2023, he received an offer for mutual separation as an alternative to dismissal for poor performance, and he settled for the mutual separation. 6. He admitted that on 22nd December 2023, he demanded 9 months salary as a condition for the mutual separation and then handed over his tool of trade (Laptop etc) to Fortinatus Otieno as directed. 7. He admitted that he reported to the office on 10th January 2024 and his LinkedIn profile continued to show him as an employee of the 1st Respondent. 8. Fortinatus Otieno testified as RW1 and adopted his statement dated 19th July 2024 as his evidence in chief. He then produced 10 documents as exhibits. In brief, he stated that he is the HR Specialist for the 1st Respondent and on 21st December 2023 he made an offer of mutual separation to the Claimant in alternative to undergoing PIP. He contended that the Claimant settled for a mutual separation vide an email sent on 21st December 2023 at 17:33 hour. 9. On 22nd December 2023 the two met again and agreed for a mutual separation but at 09:30 hours the Claimant wrote to him confirming the mutual separation but demanded 9 months salary in lieu of notice. Thereafter, he found that the Claimant had dumped his tools of trade including Laptop on his desk and left. 10. He states that on 10th January 2024 the Claimant made a brief appearance in the office and left. On 11th January 2024, he wrote the Claimant after they had spoken over the phone confirming that the offer of 3 months salary in lieu of notice plus accrued leave still remained but he responded to the email. He denied that the Claimant was dismissed on 22nd December 2023. 11. He stated that due to absence without leave, the Claimant was served with a show cause letter on 26th January 2024 and invited to disciplinary hearing on 1st February 2024. He never attended and he was summarily dismissed. He contended that this suit was filed by the Claimant on 22nd January 2024 to forestall the disciplinary hearing. 12. On cross examination, 13. He stated that he was employed by the 1st Respondent on 1st June 2022 but his certification was in November 2022. 14. He admitted that he was HR Specialist for the two Respondents, and that there are functions that cut across. 15. He stated that it was usual for staff to work for an affiliate entity. 16. He admitted that the Claimant was employed as Associate Company Secretary and his contract referred the 1st Respondent as Company and the 2nd Respondent as firm. The firm was offering the job and was also the one to pay salary and do assessment of performance. 17. He stated that Claimant acknowledged the HR policies of the 2nd Respondent clarified that 1st Respondent was an affiliate of the 2nd Respondent. 18. He contended that there are grievance procedures and policy for employees but he did not produce the same. 19. He admitted that the email on Page 13 and 14 of Respondent’s bundle does state that the management had already planned to dismiss the Claimant. 20. He admitted that he had received complaints against the Claimant from his supervisor, Ms. Anne Otunga which related to performance 21. He maintained that on 21st December 2023 he told the Claimant of an intended PIP but he opted for a mutual separation and demanded 9 months salary in lieu of notice as opposed to the three months pay offered by the Respondents. 22. He maintained that the Claimant reported to work on 10th January 2024 and disappeared. He suspected that the Claimant left because of the offer for separation. **Submissions and issues for determination.** 1. After the hearing, both parties filed written submissions. The Claimant’s submissions are dated 16th February 2026 while the Respondents are dated 4th March 2026. 2. Having carefully considered the pleadings, evidence and submissions, there is no dispute that the Claimant was employed vide a contract dated 22nd August 2022 and worked until 22nd December 2023. The issues for determination are:- 3. Whether Clamant was employed by the 1st or 2nd Respondent. 4. Whether the Claimant was unlawfully dismissed on 22nd December 2023 or he exited through mutual separation. 5. Whether the Respondents violated Claimant’s constitutional rights. 6. Whether the Claimant is entitled to the reliefs sought. 7. Whether the Respondents counterclaim is merited. **The employer** 1. RW1 admitted that the contract of employment stated that the 2nd Respondent (Firm) was the one offering the job to the Claimants. The Claimant contended that he was employed by the two Respondents. 2. The appointment letter dated 22nd August 2022 stated that:- ***“ We refer to your application for employment to Bellmac Consulting LLP (herein referred to as the “ Company”) affiliate of CM Advocates LLP (CM Advocates (R) ( herein referred to as the (“Firm”) and confirm that the Firm is willing to offer you the position of Associate Company Secretary on the following terms and conditions of service:-*** 1. ***Term*** ***Your employment with the Firm shall commence on 1st September 2022-*** 1. ***Remuneration*** 1. ***……Upon successful completion of the probationary period, the Firm will assess your performance and subject to the assessment, may offer you a written confirmation for the position offered.*** 2. ***The Firm shall make all statutory deductions such as NSSF, PAYE and NHIF from such gross salary and will pay you the net monthly salary-*** ***5. Duties and Place of work*** ***You are hired as an Associate Company Secretary at the Firms Head Office and seconded to Bellmac Consulting LLP or any other entities affiliated or related to the Firm. Your specific duties shall be allocated and communicated to you from time to time by your immediate supervisor or the Chief Executive Officer…*** ***15. Policies and procedures*** ***As an employee of the Firm, the current policies and procedures, and any subsequent amendments to the same are biding upon you and shall be deemed to be incorporated into and form part of this contract…*** ***You shall be bound by Code of conduct of the Firm, the written and implied rules, standards-*** ***Your faithfully*** ***For and on behalf of the Firm*** ***Ann Otunga,*** ***Chief Executive Officer.”*** 1. The above letter is clear that the 2nd Respondent, described in the above letter as “the firm”, was the employer of the Claimant. It recruited the Claimant through the 1st Respondent. It offered the job, it paid the salary and exercised control over the Claimant’s performance and conduct. 2. Section 2 of the Employment Act defines an employer as:- ***“ any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company.”*** 1. Section 2 further defines a contract of service as:- ***“ Means an agreement, whether oral or in writing, and whether expressed or implied, to employ or to serve as an employee for a period of time, and includes a contract of apprenticeship and indentured learnership but does not include a foreign contract of service to which Part XI of this Act applies.”*** 1. I need not belabor the point, as it is clear that the Claimant was employed by the 2nd Respondent under a contract of service. Although he could perform duties wherever allocate by his supervisor or the CEO of the 1st Respondent’s across the 1st Respondent’s affiliate and even beyond, the bottom line was that his remuneration came from the 2nd Respondent as the sole employer, who also exercised control over him in matters discipline and performance. **Termination/Separation.** 1. On 21st December 2023 the Claimant was called for a meeting by the RW1 where he was informed that there was a decision to dismiss him for non-performance. However, RW1 offered the Claimant an option of mutual separation with three months salary in lieu of notice plus payment for accrued. 2. The Claimant requested that the communication be made via email and RW1 did so the same day. The email dated 21st December 2023 at 16:00 stated as follows:- ***“ Subject: MUTUAL SEPARATION*** ***Dear James,*** ***Reference is made to our meeting this morning at the 3rd floor boardroom where you requested to have the following information via email.*** ***The management has decided to terminate your contract of service effective 22nd December 2023 due to the following reasons:-*** 1. ***Failure to effectively implement the scope outline in the KENBIZ project which you were solely in charge of. The project took too long to be launched and despite the launch, not all requirements were met which were communicated earlier before implementation; and*** 2. ***Failure to appropriately communicate and handle client instructions as per the Firm’s policy.*** ***We thus give you option to resign and [sic] compensate you as follows:*** 1. ***3 months salary in lieu of notice,*** 2. ***Balance of the accrued leave days not taken.*** ***During the meeting, you were open to the mutual separation but requested for time to think through. This afternoon, you have declind to either resign or have a mutual separation. Kindly let us have your response to this email by close of day.*** ***Your sincerely,*** ***Fortunatus Otieno*** ***HR Specialist*** ***CM ADVOCATES LLP.”*** 1. The Claimant responded the same by email written at 17:33 hours, thus:- ***“ Dear Fortunatus,*** ***In reference to our meeting, I settle for a mutual separation, communicate on a meeting date.”*** 1. The same day at 18:10 hours, RW1 responded to the Claimants email, thus:- ***“ We shall have the meeting tomorrow morning at 8:30am.”*** 1. The meeting took place on 22nd December 2023 as communicated and at 9:07am, the Claimant sent a follow up email to RW1 stating that:- ***“ Reference is made to our meeting this morning, to reach an amicable settlement make a compensation of 9 months payment in lieu of notice.”*** 1. RW1 never wrote back and the Claimant contended that he was instructed to hand over his tools of trade by the RW1 and he complied. RW1 contended that the Claimant dumped his Laptop at his desk among other items in his absence and they remained there until January 2024. However during cross examination he admitted that the items were handed over to him by the Claimant. 2. Having considered the evidence before the court, I find that the parties did not reach any mutual agreement to separate on 22nd December 2023 or any other date thereafter. Although in principle, the Claimant had opted to forestall the decision by the management to terminate his contract effective 22nd December 2023 the parties failed to reach mutual separation, after failing to agree on the exit package before the end of 22nd December 2023. 3. As such the Claimant averred that he was dismissed on 22nd December 2023 and then he was told by RW1 to hand over his tools of trade. The Respondent denied the alleged dismissal stating that the Claimant was not removed from the payroll and that he reported to work on 10th January 2024. According to the Respondent, after the parties failed to agree on a mutual separation the matter ended there and the Claimant remained in employment. 4. The correct answer to the above controversy can be found in the email by RW1 to the Claimant dated 21st December 2023 at 16:00 hours which I have copied verbatim above. The email stated that “ the management has decided to terminate your contract of service effective 22nd December 2023.” The only way to forestar the said decision was entering into agreement for a mutual settlement which was never reached. Therefore the natural consequence was that Claimant’s contract stood terminated effective 22nd December 2023 as earlier decided and communicated. 5. The question that begs for answer is whether the termination was unfair and unlawful. Section 45(2) of the Employment Act provides that:- “***“(2) A termination of employment by an employer is unfair if the employer fails to prove-*** 1. ***That the reason for the termination is valid;*** 2. ***That the reason for the termination is a fair reason-*** 3. ***Related to the employees conduct, capacity or compatibility; or*** 4. ***Based on the operational requirements of the employer; and*** 5. ***That the employment was terminated in accordance with fair procedure.”*** 6. In **Pius Machafu Isindu vs. Lavington Security Guards Limited [2017] eKLR** the Court of Appeal held, thus: ***“There can be no doubt that the Act which was enacted in 2007, places heavy legal obligations on employers in matters of summary dismissal for breach of employment contract and unfair termination involving breach of statutory law. The employer must prove the reasons for termination / dismissal (Section 43); prove reasons are valid and fair (Section 45) … among other provisions. A mandatory and elaborate process is then set up under Section 41 requiring notification and hearing before termination.”*** 1. Further the essential requirements for procedural fairness were laid down in **Postal Corporation of Kenya v Andrew K. Tanui [2019] eKLR** as follows: ***“Four elements must thus be discernible for the procedure to pass muster:*** ***(i) an explanation of the grounds of termination in a language understood by the employee;*** ***(ii) the reason for which the employer is considering termination;*** ***(iii) entitlement of an employee to the presence of another employee of his choice when the explanation of grounds of termination is made;*** ***(iv) hearing and considering any representations made by the employee and the person chosen by the employee.”*** 1. The Claimant denied the allegations levelled against him and averred that the 1st Respondents CEO had subjected him to discrimination and unfair treatment compared to other staff with legal background. He however made no effort to prove the allegations cited in his email about Claimant’s performance instead he put emphasis on the purported summary dismissal on 2nd February 2024. 2. Besides, RW1 in his email of 21st December 2023 notified the Claimant of a decision already made by the management to terminate his employment effective 22nd December 2023. The decision was on alleged misconduct/poor performance on the part of the Claimant and it was made before according the Claimant a hearing as required by the law. Section 41 of the Employment Act states:- ***“(1) Subject to section 42(1), an employer shall, before terminating the employment of an employee, on the grounds of misconduct, poor performance or physical incapacity explain to the employee, in a language the employee understands, the reason for which the employer is considering termination and the employee shall be entitled to have another employee or a shop floor union representative of his choice present during this explanation.*** ***(2) Notwithstanding any other provision of this Part, an employer shall, before terminating the employment of an employee or summarily dismissing an employee under section 44(3) or (4) hear and consider any representations which the employee may on the grounds of misconduct or poor performance, and the person, if any, chosen by the employee within subsection (1), make.”*** 1. The emerging jurisprudence from our court’s is that an employee is entitle to due process of the law before terminating his contract of employment. Even where the infraction is obvious, an employee must be accorded a hearing in the presence of another employee and his defence be considered before a decision to terminate is made. In addition, the employee is entitled to be effectively notified of the decision, and then be paid his terminal dues and be issued with a certificate of service. 2. As noted above the Claimant was not accorded any hearing before the termination of his contract was decided by the Management on or before 21st December 2023. That default, coupled with the fact that the validity of the cited reasons has not been established by evidence, I find and hold that the termination was unfair within the meaning of Section 45 of the Employment Act. **Constitutional violation.** 1. The Claimant contended that he was subjected to discrimination by the 1st Respondents CEO by being treated differently from other staff with legal background. However, I find that the said claim, fell below the reasonable precision test ennounciated by the court in **Anarita Karimi Njeru -v- Republic (1979) eKLR**. In the said case, the could held that: - ***“We would, however, again stress that if a person is seeking redress from the High Court on a matter which involves a reference to the Constitution, it is important (if only to ensure that justice is done to his case) that he should set out with a reasonable degree of precision that of which he complains, the provisions said to be infringed, and the manner in which they are alleged to be infringed.”*** 1. It is clear that the instant case lacks the elegance and precision required of a constitutional reference in terms of the Claimant’s complaint, provisions of the constitution violated, and the manner of the said violation. In the circumstances, the claim for discrimination has not been substantiated. 2. Besides, the Claimant acknowledged that the other staff whom he alleges to have enjoyed preferential treatment were from different academic and professional background. Consequently, the staff were not possessing the same academic and professional qualification and as such differential treatment was justified. **Reliefs sought by the Claimant** 1. I have already reached a conclusion that the termination of the Claimant was unfair and therefore I find that he is entitled to declaration that the termination was indeed unfair and unlawful for non-compliance with the Employment Act. 2. For the foregoing reasons, the Claimant is entitled to relief under Section 49(1) of the Employment Act including salary in lieu of notice and compensation for unfair termination. His contract of employment provided for a termination notice of one month and therefore I award him one month salary in lieu of notice being Kshs. 92,141.93. 3. As regards compensation for unfair termination, the Claimant worked for about one year four months. He never received any warning letter for any misconduct or performance reasons. He also expected to continue service for an indefinite period but then he found himself tarmacking again after a short period due to the unfair termination. I award him three (3) months salary as compensation for unfair termination being Kshs. 184,283. 4. The Claimant pray for Kshs. 30,714 on account of accrued leave days and the Respondent did not dispute the same. Besides the email dated 21st December 2023, RW1 acknowledged that there was accrued leave and offered to pay the Claimant as part of separation package. Consequently I award the Claimant Kshs. 30,714 on account of un used leave days. 5. I have already held that the claim for discrimination has not been substantiated and therefore no damages can be awarded. However, the claim for certificate of service is granted since it is a right under Section 51 of the Employment Act. **Counter-claim.** 1. The Respondent prayed for refund of all the salary paid to the Claimant since he secured the employment through deception and fraudulent misrepresentation. The Claimant denied that claim and averred that he never misrepresented anything to the Respondent. 2. Both witnesses confirmed that the 1st Respondent advertised for the position of Company Secretary but after interviewing the Claimant offered him the position of Associate Company Secretary. The circumstances under which the advertised job changed to what was given to the Claimant, were concealed from the court. 3. Suffice it to say that the Claimant was given a probationary appointment and after successful completion, he was confirmed to the position of Associate Company Secretary. The Respondents must have or are deemed to have carried out due diligence before confirming the Claimant to the position. Consequently, I dismiss the Respondents Counter-claim since it has not been substantiated. **Conclusion.** 1. The Claimant has proved on a balance of probability that the Respondents unfairly terminated his employment contract on 22nd December 2023. He has also proved that he is entitled to some of the reliefs sought. However, the Respondents have not proved their counter-claim to the required standard and it has failed. Consequently, I enter Judgment for the Claimant against the Respondents jointly and severally as follows:- 2. Declaration that the Respondents unfairly and unlawfully terminated the Claimant’s contract of employment. 3. Notice…………………………Kshs. 92,141.93 4. Compensation……………….Kshs. 276,425.79 5. Leave………………………….Kshs. 30,714 **Total………………………….Kshs. 399,281.72** 1. Certificate of service. 2. Costs and interest at court rates from the date of the Judgment. 3. The award of damages is subject to statutory deductions. **DATED, SIGNED AND DELIVERED VIRTUALLY IN OPEN COURT AT NAIROBI THIS 30TH DAY OF JULY, 2026.** **ONESMUS MAKAU** **JUDGE** **Appearance:** Ateka for Onyango for Claimant Kioko for Waigwa for Respondent