https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1836

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT AND LABOUR RELATIONS COURT** **AT NAIROBI** **PETITION NO. E269 OF 2025** *(Before Hon. Justice Dr. Jacob Gakeri)* **CHARLES BIKET LUKORITO………….……………….... PETITIONER** **VERSUS** **NEW FOREST KENYA ASSET MANAGEMENT LIMITED……………………………………..……….………. RESPONDENT** **JUDGMENT** The petitioner commenced the instant suit on 17th December, 2025 together with a Notice of Motion of even date seeking various orders pending the hearing and determination of the application and petition but no orders were issued save prohibiting recruitment to the position held by the petitioner pending the hearing and determination of the petition. When the matter came up on 18th December 2025 the court issued further directions. The petitioner’s case is that he was unlawfully terminated from employment by the Respondent. He averred that at one point he served in three departments and the pressure work took a toll on him slowing down output, was placed on a performance improvement plan for 2 months which was extended for 2 weeks and required to develop a Tiger moth model for Green Resources Mozambique Forest resource, a role he averred was outside his job description as Fund Analytics Manager in the Asset Management Department. That he had not been trained on development of such a model and complained about it. The petitioner averred that he was invited for disciplinary hearing held on 20th November 2025, but no notice to show cause had been issued, attended and his employment was terminated on 27th November 2025, appealed but the decision was upheld on 11th December 2025. According to the Petitioner the disciplinary action was procedurally flawed. The Petitioner prays for: 1. A Declaration that the termination of employment was unconstitutional, unlawful and unfair. 2. A Declaration that the respondent violated the Petitioners right to equality and equal protection of law. 3. A Declaration that the disciplinary proceedings against the petitioner was unfair and void *ab initio.* 4. An order of *certiorari* to quash the decision of the Respondent contained in the letter dated 27th November, 2025. 5. An order of *mandamus* to compel the Respondent to reinstate the petitioner with full benefits. 6. An order directing the Respondent to pay damages to the petitioner for unlawful, unfair and unjustified termination. 7. Costs of the petition. 8. Any other and/or orders the court deems appropriate, just and fit to grant. **Respondent’s Case** By a Replying Affidavit sworn on 12th March, 2026 in opposition to the Petition, Erica McLaughlin deponed that she was the Respondent’s People Lead for Australia, New Zealand, Singapore and Kenya. The affiant further deponed that the Petitioner was an employee of the Respondent vide a contract dated 29th August 2023 and his duties encompassed investments portfolio/operations and core analytics but periodic reviews exposed the petitioner’s knowledge gaps in relation to the use of Tigermoth (a forest estate modelling framework system) under performance and poor quality of work which culminated in a performance improvement plan (P.I.P) but achieved only one out of the three objectives and the petitioner declined extension of the P.I.P. That the petitioner was aware of the Tigermoth model during the period of the P.I.P. That the petitioner was trained in Tigermoth and biological modelling in Australia and in Kenya and investigation was not mandatory. The affiant impliedly admitted that the Respondent did not issue a notice to show cause prior to the invitation for the disciplinary hearing but the petitioner was informed of his rights and all documents he required were provided. By a Further Affidavit sworn on 28th April 2026 the petitioner deponed that he was introduced to Tigermoth during his visit to Sydney, Australia on 4th December 2023 during a 12 days visit and made a presentation on financials. That Sean Lyod resigned in April, 2025 but was requested to assist the petitioner familiarize himself with Tigermoth and the same took place on 1st May 2025. That the petitioner moved to Asset Management in March 2025 and had a new job description with duties in finance, investment analysis and financial analytics and did not receive a salary increment of June 2025 awarded to other staff and P.I.P followed 2 months later. The petitioner admitted that before the P.I.P he attended a meeting with the Line Manager Kuda Phairah and Ms Erica Mclaughin on the P.I.P but no reference was made to the Tigermoth or Sawmill operations, but Tigermoth was introduced later and no training on it was provided even after request save for 2 days via the Ms Teams and Matteo and Makoto offered no assistance on request. That other employees received bonus during the currency of the P.I.P. **Petitioner’s submissions** As to whether termination of the petitioner’s employment was fair lawful reasonable and justifiable reliance was placed on various provisions of the Employment Act specifically sections 10(5) 41(1), 43(1), 45 and 47(5) on various aspects of termination of employment, as were the decisions in **Waller Ogal Anuro v Teachers Service Commission (2013) eKLR** and **Its v Philips Pharmaceuticals** **Ltd (2022) KEELRC 13479 (KLR)** on the elements of Section 45 of the Employment Act and the factors to be taken into account in determining whether termination of employment was just and equitable. As regards the reasons(s) for termination of the Petitioner’s employment counsel submitted that the alleged petitioners lack of proactiveness accuracy level and inability to learn the basics of Tigermoth Model and miss of deadlines were unsubstantiated and thus invalid as reasons for termination of employment and the P.I.P was procedurally flawed. Reliance was placed on **Kwale International Sugar Co. Ltd V Mbaya (2024) KECA 795 (KLR)** on the parameters of poor performance, but the principles outlined were outlined by Mbaru J in **Jane Samba Mukala v Ol Tukai Lodge Ltde (2013) eKLR.** Also cited were the sentiments of the court in Pius v Reckitt Benckiser Services Ltd (2022) KEELRC 13160 (KLR) to submit that the Respondent adduced no evidence of the petitioner’s poor performance before P.I.P. Counsel submitted that the petitioner’s role was that of financial modelling while forestry and other technical areas were under the purview of other Asset Managers and the visit to Australia failed to meet the threshold of structured support. On key performance indicators, reliance was placed on **Kiriga v Family Bank Ltd (2026) KEELRC 938 (KLR) and Chira v Messier Inclusive Technology Ltd (2026) KEELRC 1012 (KLR)** to urge that the employer ought to have put in placed objective and measurable standards and submit that the P.I.P was vague and lacked specific measurable targets. Also cited was the decision in **Xto v Kenya Commercial Bank Group (2025) KEELRC 3461 (KLR)** to urge that training was an essential component of a P.I.P. According to counsel the petitioner was not accorded sufficient time to improve as held in **Maina Mwangi v Thika Coffee Mills Ltd 92014) KEELRE 599 (KLR).** As to whether the Respondent complied with the requisite procedure reliance was placed on **Okwoyo v Bank of Africa (2023) KEELRC (089) (KLR)** on the place of the notice to show cause whose purpose is to set out the charges levelled against the employee for a response. Reliance was placed on **Chief Registrar of Judiciary & 2 others v LMN (2025) KESC 53 (KLR)** on the centrality for fairness in a disciplinary process to urge that the respondent provided no report or findings of the disciplinary hearing and the appeal was dismissed. As to whether the respondent violated the petitioners’ constitutional rights and fundamental freedoms, counsel cited articles 41, 47 and 50 of the constitution. Reliance was placed on the decision in **Postal Corporation of Kenya v Tanui (2019) EKLR.** As to whether the court should grant the reliefs sought reliance was placed on section 49 of the Employment Act and the decisions in **Alfred Muthomi Mutina & 2 others v National Bank of Kenya (2018) KEELRE 1501 (KLR) and Kenya Airways Ltd v Aviation & Allied Workers union Kenya & 3 others (2014) KEEA 403 (KLR).** On the reliefs available to the petitioner including reinstatement to urge that the petitioner qualified for maximum compensation on grounds other than those outlined under section 49 (4) of the Employment Act. **Respondent’s submissions** As to whether the Respondent had a justifiable reason to terminate the petitioner’s employment, reliance was placed on the Court of Appeal decision in **Cargil Kenya Ltd v Mwaka & 3 others (2021) KECA 115 (KLR)** to urge that the employers valid ground generally was the reason the employer believed to exist at the time to urge that the petitioner’s job description was to provide financial and forestry analytics support and services and his performance had been noted as wanting and was notified during the annual performance review and a P.I.P put in place thereafter and the petitioner had only met one (1) out of the agreed objectives. Reliance was placed on **Jerotich Seli Houlding v International Rescue Committee (IRC) (2019) eKLR.** Counsel submitted that prior to the P.I.P the petitioner had undergone reviews on 27th August 2025, 2nd April 2025 and 29th July and the petitioner attended Multiple Performance Reviews. On alleged vague performance indicators, counsel submitted that the portfolio objective required the petitioner to deliver simplified and standardised valuation models suitable for implementation and the objectives were neither vague nor incapable of measurement. Reliance was placed on **Civil Appeal No. 5698-5699 of 2009 state of Punjab & 8 others v Dhanlit Singh Sandu** on approbation and reprobation to urge that having participated in the performance management process he was bound by its terms. Counsel submitted that the petitioner signed the P.I.P voluntarily and it remained the basis of the petitioner’s evaluation and no new KPL or performance criteria was introduced. On training, counsel submitted that prior to the P.I.P the respondent had exposed the petitioner to the Tigermoth modelling and biological modelling and arranged training sessions with Matteo and Swami and was trained in Australia and could not allege that he lacked assistance from Matteo. Counsel urged that the petitioner could not allege that he had no training support. Counsel urged that reliance by the petitioner on factors such as operational challenges, collaboration and technical nature of the Tigermoth modelling could not avail him and his role was never changed as alleged and the realignment affected the reporting structure only and Tigermoth modelling fell within the petitioner’s scope of responsibilities and bore the burden proving otherwise as held in **Jennifer Nyambura Kamau v Humphrey Mbaka Nandi (2013) eKLR.** On the period of the P.I.P counsel urged that the 2 months was consistent with the policy and he declined an extension on 29th October 2025 and concerns had been raised earlier. According to counsel the P.I.P was a fair process. As to whether the Respondent followed due process counsel submitted that the petitioner was at all material times aware of the charge of poor performance and notice need not be written as held in Otana v Equity Bank Ltd (2025) KECA 1324 (KLR) and thus the petitioner had no basis to argue that he was not issued with a notice to show cause and in case no prejudice was shown. Regarding non-availment of reasons for dismissal of appeal, counsel submitted the respondent considered the petitioners appeal and communicated the outcome. As to whether the petitioner was discriminated, counsel submitted that the allegation was not substantiated as there was no automatic entitlement to bonus or salary increment and it was not only the petitioner who did not receive the increment and it is at the discretion of the employer. Reliance was placed on **Gwer & 5 others v Kenya Medical Research Institute & 3 others (2020) KESC 66 (KLR)** on the burden of proof to urge that the allegation was for dismissal. On entitlement to the relief prayed for counsel submitted the Respondent had reason to terminate the petitioner’s employment and affanted him a fair hearing and there was no obligation to provides a record of the findings and the petitioners was aware of the charge he was facing and the order of *certiorari* could not issue. Reliance was placed on the decision in **Stantic Bank Ltd v Danson Mwashako Mwakuwona (2015) eKLR** to urge that the Respondents decision to terminate the petitioner’s employment was lawful as due process was followed citing the decision in **Kenya Revenue Authority v Menginya Salim Murgani (2010) KECA 164 (KLR).** That the order of reinstatement was untenable citing **Ngubi v Kenforeight (EA) Ltd (2014) KEELRC 749 (KLR),** and **Kenya Airways Ltd v Aviation & Allied Workers Union (2014) eKLR.** Counsel urged that no damages were payable to the petitioner and the petition was no dismissed with costs. The issues for determination are: 1. Whether the Respondent had a substantive justification to terminate the Petitioner’s employment. 2. Whether the Respondent discriminated the petitioner. 3. Whether the petitioner is entitled to the reliefs sought. It is common ground that the Respondent employed the petitioner vide a contract of service dated 24th August 2023, as a Manager, which the petitioner signed on 29th August, 2023 at USD 80,000 per year. The detailed contract provided for the petitioner’s duties, namely investments portfolio/Operations and core analytics. It is not in dispute that the petitioner successful completed the 6 months probationary period and was confirmed in his position as Manager Investment Analytics to offer financial and forestry analytics support and services. It is equally not in contest that the petitioner was subjected to a P.I.P for 2 months effective 20th August 2025 to 29th October 2025 in three areas namely, Portfolio, Fund and Investment and while the petitioner achieved in Portfolio he did not achieve in Fund and Investment. The Line Manager’s, comment was “Competency in biological modelling, particularly using Tigermoth forestry models remains below expectations despite training and exposure since joining NF. This gap is a concern as proficiency is essential for success in the role.” During the hearing, the petitioner confirmed on cross-examination that forest analytics was not part of his role and Tigermoth was the Respondents forestry modelling tool. He testified that although he had proficiency in excel, his background was financial not forestry. It is also dissembled that the Respondent was aware that the petitioner who had no background in forestry required training in forestry modelling tools and the training in Sydney, Australia during the 12 days visit introduced the petitioner to the Tiger moth modelling tool. The petitioner admitted that training took place in Nairobi on for 2 days. It is unclear to the court as to what other trainings, coaching and support the petitioner was accorded by the Line Manager and other staff to enhance his appreciation and application of the Tigermoth modelling toll. Although RWI admitted that the petitioner reached out and needed training, she indicated that he could rely on colleagues and was given a software guide having spoken to Matteo and Makoto, which demonstrated proactivity on the petitioner’s part. RWI confirmed, on cross-examination that the petitioner was employed in Investment and Audit team and later transitioned to Asset Management. RWI further confirmed that the development of a biological model was not one of the objectives of the P.I.P. Strangely, the witness testified that as an analyst the petitioner ought to have had the knowledge to develop the model yet he had no expertise in forestry. Similarly, RWI tendered no evidence as to the coaching or support the petitioner received during the P.I.P. On re-examination RWI testified that the Respondent expected the petitioner to have had much more skill in forestry analytics after 2 years of employment. Having employed the petitioner, and who had reached out on the need for training in the Tigermoth modelling tool to appreciate and apply the tool in the discharge of his obligations, it was incumbent upon the Respondent to ensure that the petitioner was successfully trained and, in a position, to apply the tool comfortably. The Respondent knew that the petitioner’s background was in finance not forestry, the duration he had served notwithstanding. It is trite that it requires time coaching, training and support for an employee to learn an new skill at the workplace and it behoves the employer to facilitate acquisition of the skills it requires its employees to have. In this case, the petitioner had no background in forestry but the Respondent employed him as an analyst and although it attempted to introduce him to forestry modelling, specifically the Tigermoth tool, neither the training in Australia nor the alleged coaching or support by Kenya colleagues was evidentiary demonstrable to show that the petitioner had as a consequence acquired the necessary skills to enable him develop the model for Mozambique. RWI’s testimony that they expected the petitioner to have been more skilled in forestry analytics than he was, could not avail the Respondent. It employed the petitioner an analyst in finance as opposed to forestry and was obligated to facilitate his transition to the employee they required. Under section 43 of the Employment Act, 1. In a claim arising out of termination of a contract the employer shall be required to prove the reason or reasons for the termination and where the employee fails to do so the termination shall be deemed to have been unfair within the meaning of section 45. 2. The reason or reasons for termination of a contract are the matters that the employer at the time of termination of the contract genuinely believed to exist and which caused the employer to terminate the services of the employee. In the instant case, the respondent terminated the petitioner’s employment on the ground that he did not complete the P.I.P successfully and for lack of proactivity accuracy and inability to learn the basis of Tigermoth modelling and missed deadlines. It is trite law that performance is one of the grounds on which an employer may terminate the employment of an employee under section 45 of the Employment Act. In **Jane Samba Mukalla v Ol Tukai Loolge (2013) eKLR** Mbaru J held as follows; *“… Where poor performance is shown to be a reason for termination the employer is placed at a high level of proof as outlined under section 8 of the Employment Act… they had to put in place an employment policy or practice on how to measure good performance as against poor performance…including having a performance evaluation system, that can be used by the employer in ensuring their employees get a fair chance when they are of poor performance…and further what measures they have taken to address poor performance once the policy or evaluation system has been applied…* *Beyond having such an evaluation measure before termination on ground of poor performance an employee must be called and an explanation on their poor performance shared, there they would in essence be allowed to defend themselves or be given an opportunity to address their weaknesses.* *In the event a decision is made to terminate an employee on the reasons of poor performance, the employee must be called again and in the presence of another employee of their choice the reasons for termination shared and explained to such an employee.”* In the instant case, the petitioner’s contract of employment provided for personal performance reviews. The policy provided for 2 times in a year. It is unclear to the court how and when the respondent determined to subject the petitioner to a P.I.P as no performance review was filed or evidence to that effect The petitioner confirmed on cross-examination the respondent did not avail any documents of his underperformance and the Respondent tendered no evidence of any performance review prior to the P.I.P. Even if the petitioner’s line manager had any concerns, the issues of performance can only be determined by conducting a formal review, which the Respondent did not conduct. However, it is common ground that the petitioner was taken through a two (2) months performance improvement plan, which in the court’s view was short. A typical P.I.P is three (3) months and above, to afford the employee time to demonstrate their ability to meet the targets agreed upon. The petitioner achieved one (1) against 3 targeted areas reason and possibly one (1) more month would have provided a different outcome on the other two targets. It is worth noting that the Respondent’s Performance Review Management and Disciplinary Policy provided that the minimum duration for a P.I.P was 2 months and the Respondent could have accorded the Petitioner more time for a fair assessment of his performance. More significantly, the reason for the failure to achieve the targets in the Fund and Investment was the same, namely the petitioner’s competence in biological modelling and in particular use of the Tigermoth forestry models an field in which the petitioner required training and had indicated as much. While according to the Respondent the petitioner was expected to have mastered the skill to use Tigermoth, the petitioner argued that he was not sufficiently trained and the fact that his background was not in forestry may have contributed to the appreciation of the biological modelling tool. Relatedly, the Respondent provided no verifiable evidence of having trained or coached, or supported the petitioner to the level of using the modeling tool competently. Other than the introduction the petitioner received in Australia and two (2) days training in Nairobi, the only other support the petitioner received was a software guide. During the hearing, the petitioner complained about the lack of particulars of the alleged underperformance. He also complained about the short training period, that those complaining about him were in forestry and the time required to learn Tigermoth. The petitioner’s inability to the Tigermoth was the *causa causan* for the termination of employment. From the foregoing, it the finding of the court that the respondent has failed to evidentiary prove that it had a valid and fair reason to terminate the petitioner’s employment. As to whether the termination of employment was in accordance with the prescriptions of section 45(2) (c) and 41 of the Employment Act, it is common ground that the Respondent did not issue a notice to show cause which is typically the initiation of the disciplinary process. However, the Respondent issued an invitation to the disciplinary hearing dated 13th November 2025 via email and which explained the reason for the hearing and relevant documents were attached. Vide email dated 15th November, 2025 the Petitioner sought particulars of his performance but none was furnished. The invitation letter was general, that the issue of the petitioner’s performance would be deliberated to enable the Respondent determine if the petitioner was incompetent in the performance of his duties. At the hearing, the petitioner raised the issue of specific allegations, his inexperience in Tigermoth and the allegations of underperformance was from the foresters in Asset Management. That he needed more time to learn Tigermoth. In the court’s view, although the Respondent did not issue a notice to show cause, the invitation for the disciplinary hearing accorded the petitioner sufficient time to interact with the allegations against him and had sufficient time to respond in writing as evidenced by his request for more particulars of the alleged under performance. It is not in dispute that the petitioner was accorded sufficient time to prepare for his defence and was informed of his right to be accompanied by a fellow employee or union representative. Evidence on record reveals that the petitioner attended alone and was accorded time to present his case. The petitioner received the letter of termination of employment which set out the grounds or reasons of termination employment. Equally, although the letter of termination did not expressly rehash the petitioner’s right of appeal, paragraph 7 of the Performance Review Management and Disciplinary Policy provided for the right of appeal within 5 days and the petitioner’s appeal was dated 2nd December 2025. The petitioner raised several issues including; 1. His role in the organization as an analytic with background in finance. 2. Serving three departments’ investments, investor relations and Asset Management and the petitioner was to be the bridge between finance and forestry hence the need to prioritize. 3. Projects he had participated in including Muembe Financial model developed collaboratively but blamed alone. 4. Extension of the P.I.P to develop Tigermoth model for one of the forestry assets. 5. The 12 days training in Australia was an induction and training in investment analytics as opposed to Tigermoth specifically and had 2 days training on Tiger moth. 6. He did not claim to have qualifications in forestry and was not conversant with the use of Tigermoth. Although the Petitioner faulted the appeal for the absence of a hearing, there is no legal requirement that there be an oral appeal hearing for an appeal to be valid. It suffices if the appeal is considered by the appellate panel and a decision communicated. The petitioner admitted having received the outcome of the appeal. For the foregoing reasons, it is the finding of the court that the Respondent substantially complied with the provisions of sections 45(2) (c) and 41 of the Employment Act, on procedural fairness. In sum, the court is satisfied that having regard to all the circumstances of the case, the employer did not act in accordance with justice and equity in terminating the petitioner’s employment summarily. It is the finding of the court that termination of the petitioner’s employment on 27th November 2025 was unfair within the meaning of section 45 of the Employment Act. As to whether the petitioner was treated in a discriminatory manner with regard to salary increment and bonus, while the petitioner deponed that the respondent’s conduct was discriminatory, RWI confirmed on cross-examination that salary increment to staff was discretionary. It is trite law that the provisions of Article 27 of the Constitution of Kenya and section 5 (3) of the Employment Act prohibit direct and indirect discrimination generally and in an employment relationship respectively. The law prohibits an employer from discriminating an employee on the grounds of race, colour, sex, language, religion, political or ethic opinion nationally, ethnic or social origin, disability, pregnancy, marital status or HIV status. Black’s Law Dictionary 10 Edition defines discrimination as; *“The failure to treat all persons equally where no reasonable distinction can be found between those favoured and those not favoured.* In **Peter K. Waweru v Republic (2006) eKLR** the court stated: *“… Discrimination means affording different treatment to different persons attributable wholly or mainly to their description whereby persons of such description are subject to … restrictions to which persons of another description are not made subject or are accorded privileges or advantage which are not accorded of another such description…”* The foregoing definitions notwithstanding, it is trite that the law does not prohibit discrimination in all instances, it only prohibits unfair discrimination which may be direct or indirect. See **Nyarangi & 3 others v Attorney General (2008) eKLR 688** and **Gichuru v Package Insurance Brokers Ltd (2021) KESC 12 (KLR)** Although section 5(7) of the Employment Act places the burden of disproving that there was discrimination on the employer, the burden of prove does not shift automatically. The employee is required to discharge the initial burden by demonstrating a *prima facie* case of discrimination against him/her as held in **Gwer and 5 others v Kenya Medical Research Institute & 3 others (2020) KESC 66 (KLR)** and **National Social Security Fund v Peter & 47 others (2023) KECA 804 (KLR).** In the instant case, the petitioner bore the initial burden of proof. As regards salary increment or review, the contract of employment provided that it was reviewable at the discretion of the employer. It is common ground that the respondent awarded its employees a salary increment sometime in 2025 and RWI admitted that the petitioner did not receive any increment, but added that he was not the only person who did not receive the increment. RWI testified that the increment was based on performance and market analysis. However, the witness provided no evidence on how the alleged performance and market analysis led to the exclusion of the petitioner and other employees, if any. Similarly, the witness had no verifiable evidence of the performance or the number of employees whose performance fell below the threshold for a salary increment and how the information was communicated to the petitioner. The petitioner testified that he was only informed about the salary review when he followed up to ascertain the position. From the evidence on record, it is discernible that the respondent had no evidence to demonstrate why the petitioner was denied a salary increment in 2025. Evidence of the petitioner’s performance in relation to other employees who qualified for a salary increment would have proved that the respondent had a reasonable basis to deny the petitioner a salary increment. The fact that the respondent had discretion to award a salary increment did not mean that it could exercise that power capriciously or whimsically. It had to be based on a verifiable criterion. For the foregoing reasons, it is the finding of this court that the respondent discriminated the petitioner as regards salary increment. The petitioner’s allegation that he was discriminated on the payment of bonus was not substantiated. **Appropriate reliefs** Having found that termination of the petitioner’s employment by the respondent was unfair and having further found that the respondent discriminated the petitioner in the payment of salary increment, the court is satisfied that the declaration that the termination of employment was unlawful is merited and the petitioner is equally entitled to compensation by dint of Section 49 (1) (c) of the Employment Act. Considering that the petitioner was an employee of the respondent for about 2 years and three months only, had no previous cases of misconduct, wished to continue in employment, appealed the respondent’s termination of his employment, the court is satisfied that the equivalent of three months gross salary is fair. For the respondent’s discriminatory conduct, the petitioner is awarded Kshs.500,000.00 in damages. Bearing in mind the circumstances in which the petitioner and the respondent separated, the court is not persuaded that the remedy of reinstatement would be practicable in the circumstances and as held in **Kenya Airways Ltd & another v Aviation and Allied Workers Union Kenya & others (2014) eKLR,** the remedy of reinstatement is discretionary and in the circumstances of this case, the court is satisfied that the remedy of reinstatement would not be appropriate and it is declined. In conclusion, judgment is entered in favour of the petitioner against the respondent in the following terms; 1. Declaration that termination of the petitioner’s employment by the Respondent was unlawful. 2. Declaration that the Respondent discriminated the petitioner by failing to award him salary increment in 2025. 3. An award in damages in the sum of Kshs.500,000.00. 4. Equivalent of three (3) months’ salary compensation. 5. Interest at court rates from date hereof till payment in full. 6. Costs of the suit at ½ scale. For the avoidance of doubt all other relief are dismissed. **DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI ON THIS 30th JUNE, 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**