https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2348

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI** **CAUSE 98 OF 2020** *(Before D. K. N. Marete)* **REGINA WANJIRU KINYANJUI ……....………………………………… CLAIMANT** **VERSUS** **NAIROBI VETERINARY CENTRE LIMITED ……………………… RESPONDENT** **JUDGMENT** This matter came to court by way of a Memorandum of Claim dated 18th February, 2020. The issue in dispute is therein is cited as; *unlawful termination* The Respondent in a Response to Claim dated 20th February, 2024 opposes the claim and prays that it be dismissed with costs. The Claimant in a Reply to Response to Claim rubbishes the defence and prays for judgment as sought in the Memorandum of Claim. The Claimant’s case is that she was employed by the Respondent as an Accountant vide a contract of employment dated 25th April, 2014 with a commencement date of 19th May 2014. Her starting salary was Ksh. 40,000.00 per month, which rose to Ksh. 140,000.00 gross per month by the time of her dismissal. She was summarily dismissed on 3rd September 2019, having served approximately five (5) years. The Claimant’s further case is that on 17th July, 2019 the Respondent issued her a suspension notice in connection with a bounced cheque of Ksh. 160,000.00 presented at its Thika Branch for the purchase of a milking machine. Even as she was in the process of responding to that notice, the Respondent on 24th July, 2019 issued a second disciplinary letter raising multiple and distinct allegations, including persistent late reporting between 2nd January, 2019 and 13th July, 2019 failure to record reporting times, leaving office early on various occasions, failure to confirm direct banking payments by corporate customers between November 2018 and April 2019, and negligence in connection with the bounced cheque. She responded to the disciplinary letter in writing and denied the allegations. She was thereafter invited to and attended a disciplinary hearing on 23rd August, 2019 at Longonot Place, Nairobi, at which her advocate who accompanied her was denied participation. By letter dated 3rd September 2019, the Respondent summarily dismissed her on seven grounds. She appealed, but the dismissal was upheld by letters dated 18th September 2019 and 27th September 2019 respectively. The Claimant contends that the dual disciplinary letters were procedurally irregular; that the denial of representation tainted the hearing; and that her dismissal was substantively unjustified, particularly as no criminal investigation found her culpable in connection with the bounced cheque. The claimant prays as follows; 1. *Damages for wrongful dismissal calculated at Ksh. 170,000.00 x 18 months = Ksh. 1,260,000.00; (Ksh One million Two Hundred and Sixty Thousand)* 2. *Unpaid salary for August and September 2019 totalling Ksh. 140,000.00. (One hundred and forty thousand)* 3. *Difference between NSSF payment and the statutory entitlement at fifteen (15) days pay per year worked.* 4. *Any other relief deemed fit by court* 5. *Costs and interest.* The Respondent’s case is a denial of the claim. Its witness, Stephen Njoroge Ng’ang’a, deposes that the Claimant persistently reported late and departed early without satisfactory explanation over a period spanning several months. She also failed to record her movements on the biometric attendance system, failed to confirm receipt of payments by corporate customers leading to strained business relationships and negligently advised the Thika Branch Manager that a cheque for Ksh. 160,000.00 had cleared, thereby causing the release of a milking machine and a consequent financial loss to the Respondent. The Respondent’s further case is that it complied with Section 41 of the Employment Act, 2007 by issuing show cause letters, inviting the Claimant to a hearing, affording her the right to be accompanied by a fellow employee, and considering her written and oral responses before dismissing her. It maintains that the Claimant had been verbally warned on prior occasions regarding her punctuality and conduct. The Respondent avers that the Claimant’s salary at the time of termination was Ksh. 70,000.00 per month and not Ksh. 140,000.00 as claimed. By way of Counterclaim, the Respondent seeks recovery of Ksh. 160,000.00 being the value of the milking machine lost as a result of the Claimant’s alleged negligence. The matter came before the court variously until the parties agreed on disposal by way of written witness statements and lists of documents adopted as evidence in chief, supplemented by written submissions. The Claimant relied on her own witness statement sworn on 18th February, 2020. The Respondent relied on the witness statement of Stephen Njoroge Ng’ang’a, Finance and Administration Manager dated 18th November, 2024. The Claimant filed submissions on 1st August, 2025 and the Respondent on 29th September, 2025. The issues for determination are; 1. Whether the termination of the Claimant’s employment was wrongful, unfair and unlawful. 2. Whether the claimant is entitled to the relief sought. 3. Whether the Respondent’s is entitled to the Counter Claim. 4. Who bears the costs of this cause. The 1st issue for determination is whether the termination of the Claimant’s employment was wrongful, unfair and unlawful. The Claimant submits that the process was procedurally flawed in two material respects. First, she was subjected to two separate and escalating disciplinary letters in quick succession before she had a proper opportunity to respond to the first. Second, she attended a disciplinary hearing on 23rd August 2019 but the minutes produced by the Respondent are dated 29th August 2019, a date to which she was never invited and at which she was not present. The dismissal letter is premised on those minutes. She was therefore dismissed on the basis of a hearing she did not attend. She further submits that her advocate was denied participation and that no genuine appellate review was conducted. The Respondent submits that it fully complied with Section 41 of the Employment Act, 2007 in that show cause letters were issued and that the Claimant was invited to and attended a hearing. She was entitled to be accompanied by a fellow employee (not an advocate) and that her appeal was duly considered by the Executive Director. Section 41 of the Employment Act, 2007 requires an employer, before terminating or summarily dismissing an employee, to explain the reason for the intended action in a language the employee understands, and to hear and consider any representations the employee may wish to make. This is a mandatory procedural obligation whose non-observance renders a termination procedurally unfair. The procedural record in this matter is troubled in two material respects. First, the Respondent issued a suspension notice to the Claimant on 17th July, 2019 in connection with the bounced cheque matter. Rather than await her response, the Respondent on 24th July, 2019 issued a second and substantially expanded disciplinary letter raising four additional and separate allegations. This sequential imposition of escalating charges before the employee has had a fair opportunity to answer the initial ones is irregular and prejudicial. Second, the Claimant attended a disciplinary hearing on 23rd August, 2019 but the minutes produced by the Respondent are dated 29th August, 2019 a date to which the Claimant was not invited and at which she was plainly not present. The dismissal letter of 3rd September, 2019 is premised on deliberations held without the Claimant’s participation. This offends the most basic principle of natural justice: *audi alteram partem*. On the denial of the Claimant’s advocate, section 41 entitles an employee to be accompanied by a fellow employee, not an external advocate; the Respondent was within its rights in that respect. The Claimant submits that the attendance records relied upon by the Respondent were not certified under Section 106B of the Evidence Act, Chapter 80, Laws of Kenya and are therefore unreliable; that the Respondent’s own recommendation letter dated 24th November, 2018 is positive on all accounts, which is incompatible with allegations of poor performance; that she was trusted to lead an ISO Certification Team in February 2018; that the bounced cheque was processed at the Thika Branch by the Branch Manager and that she was not personally responsible for clearing it; and that the key witness, Ms. Maria Wahito, gave no evidence in these proceedings. The Respondent submits that the Claimant wilfully neglected her duties; that she persistently reported late and departed early; that she failed to manage statutory deductions and remittances; that she negligently caused the release of a milking machine worth Ksh. 160,000.00 by confirming the clearance of a bounced cheque; and that she was not a team player and caused conflict among staff. The Respondent relies on section 44(3) and 44(4)(c) of the Employment Act, 2007 and the authority of **Pius Machafu Isindu v Lavington Security Guards [2017] KECA 225 KLR**. Section 45(2) of the Employment Act, 2007 requires the employer to prove that the reason for termination was valid, that it was a fair reason related to the employee’s conduct, capacity or compatibility, and that fair procedure was followed. The standard of proof is on the balance of probabilities. On the attendance records, the Respondent’s own documentary evidence is internally inconsistent — the figures in the dismissal letter’s narrative do not match its own table — and the records were produced without certification as required under Section 106B of the Evidence Act. On the bounced cheque, the person identified as the conduit of the alleged clearance information, Ms. Maria Wahito, gave no evidence in these proceedings. Her allegations against the Claimant were never tested by cross-examination. On the salary dispute, the Respondent’s own dismissal package computation calculates the Claimant’s final dues at a gross salary of Ksh. 140,000.00 per month. The Respondent is estopped from asserting a lower figure. On the Respondent’s own recommendation letter of 24th November 2018 positively endorsing the Claimant’s performance, this is wholly inconsistent with the allegations of poor performance in the termination letter. The grounds relied upon for summary dismissal have not been established to the required standard. The termination of the Claimant’s employment was substantively unjustified. The termination of the employment of the cclaimant was to this end therefore wrongful, unfair and unlawful. This answers the 1st issue for determination. The 2nd issue for determination is whether the claimant is entitled to the relief sought. The Claimant seeks damages for wrongful dismissal of Ksh. 1,260,000.00 (18 months’ salary), unpaid salary for August and September 2019 of Ksh. 140,000.00, the NSSF differential, costs and interest. The Respondent submits that no relief is due; that the claim has not been proved; and that the Claimant was paid her full final dues of Ksh. 111,208.00 on 28th September 2021. The Respondent avers that the salary at the time of termination was Ksh. 70,000.00 per month. Having found the termination to be both procedurally unfair and substantively unjustified, the Claimant is entitled to compensation under Section 49 of the Employment Act, 2007. In assessing the appropriate quantum, the court is guided by Section 49(4) which directs consideration of the circumstances of the termination, the extent of compliance with statutory requirements, the employee’s length of service, and her own conduct. Balancing all these considerations, the court finds that an award of six (6) months’ gross salary is just and equitable. On unpaid salary for August and September 2019, the Respondent paid Ksh. 111,208.00 on 28th September 2021, which covered salary for August 2019 in full, the first four days of September 2019, and accrued leave pay. No further award is made under these heads. On the NSSF differential, no documentary evidence has been produced to establish the alleged shortfall. This prayer fails for want of proof. The 3rd issue for determination is whether the Respondent’s is entitled to the Counter Claim. The Respondent counterclaims Ksh. 160,000.00 being the value of the milking machine allegedly lost as a result of the Claimant’s negligence in confirming clearance of a bounced cheque. The Claimant denies the Counter Claim and submits that she was not personally responsible for clearing the cheque; that Ms. Maria Wahito was the conduit of the alleged clearance information and that the Respondent’s payment of the Claimant’s full final dues without any deduction for the alleged loss is inconsistent with a genuine Counter Claim. The Respondent has failed to discharge the burden of proof on the Counter claim. Ms. Maria Wahito, the person identified as the conduit of the alleged clearance information, gave no evidence in these proceedings. The Claimant’s specific involvement in the chain of communication is unproved. Furthermore, the Respondent’s payment of the Claimant’s full final dues of Ksh. 111,208.00 without any deduction in respect of the alleged loss of Ksh. 160,000.00 is conduct wholly inconsistent with a sincere Counterclaim. The Counterclaim is dismissed. The 4th issue for determination is who bears the costs of this cause. The Claimant prays for costs of the main suit and the Counter Claim. The Respondent on the other hand prays that the claim be dismissed with costs. Having regard to all the circumstances, including the fact that the Claimant has succeeded on the principal claim and the Respondent’s Counterclaim has been dismissed, costs shall follow the event. The Claimant shall have the costs of the main suit and of the Counterclaim. I am therefore inclined to allow the claim and order as follows; 1. A declaration be and is hereby issued that the termination of the employment of the Claimant by the Respondent on 3rd September, 2019 was wrongful, unfair and unlawful. 2. Six (6) months’ gross salary for unfair and unlawful termination of employment equivalent to Ksh. 140,000.00x6 months……. Ksh. 840,000.00. 3. One (1) months salary in lieu of notice ……………………..Ksh.140,000.00 **Total of award ……………………………………………Ksh.980,000.00** 1. The sum of Ksh. 980,000.00 shall be paid within thirty (30) days from the date of this judgment, failing which interest shall accrue thereon at court rates from the date of judgment until payment in full. 2. The prayer for unpaid salary for August and September, 2019 is declined, the same having been settled by the Respondent’s payment of Ksh. 111,208.00 on 28th September, 2021. 3. The prayer for the NSSF differential is declined for want of proof. 4. The Respondent’s Counter Claim for Ksh. 160,000.00 is dismissed, again for want of proof. 5. The costs of this cause and the Counter Claim shall be borne by the Respondent. Delivered, dated and signed this **29th** day of **July** 2026. **D. K. Njagi Marete** **JUDGE** **Appearances:** 1. Mr. Okeyo instructed by Otieno Okeyo & Company Advocates for the Claimant 2. Mr. Chebii instructed by M. K. Chebii & Company Advocates for the Respondent