https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1720

Mandela v Navitas SAE FZ LLC (Petition E222 of 2025) [2026] KEELRC 1720 (KLR) (19 June 2026) (Judgment) Neutral citation: [2026] KEELRC 1720 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nairobi Petition E222 of 2025 JW Keli, J June 19, 2026 IN THE MATTER OF ALLEGED CONTRAVENTION OF ARTICLES 2, 3 & 10 OF THE CONSTITUTION OF KENYA, 2010 AND IN THE MATTER OF THE ALLEGED CONTRAVENTION OF RIGHTS AND FUNDAMENTAL FREEDOMS ENSHRINED IN ARTICLES 20, 21, 22, 23, 27, 28, 35, 41, 47, 48 & 162 (2) (A) OF THE CONSTITUTION OF KENYA, 2010 AND IN THE MATTER OF THE EMPLOYMENT ACT, 2007 AND IN THE MATTER OF SECTIONS 4, 7, 10(1), 11, AND 12 OF THE FAIR ADMINISTRATIVE ACTION ACT NO. 4 OF 2015 Between Chrispinus Sangura Mandela Petitioner and Navitas SAE FZ LLC Respondent Judgment 1.It was not in dispute that the Petitioner was a former employee of the respondent. The petitioner, being aggrieved by the manner in which the Respondent conducted its investigations and disciplinary process leading to the termination of employment, filed a constitutional petition dated 24th October 2025 alleging violation of his constitutional right to fair hearing and fair administrative action, inter alia, and sought for the following relief-a.A Declaration that the disciplinary process by the Respondent was unlawful and unconstitutional and violated the Petitioner's right to fair labour practices.b.A Declaration that the refusal by the Respondent to provide the Petitioner with information relating to the purported preliminary investigations conducted by it (as insinuated in its letter of 7 August 2025) violated the Petitioner's right to access to information.c.A Declaration that the refusal by the Respondent to allow the Petitioner to confer with his legal representative during the disciplinary hearing was unfair, unfounded, unlawful, and unconstitutional.d.A Declaration that by directing the Petitioner to respond to anonymous persons, the Respondent violated the Petitioner's right to fair administrative action and his right to a fair hearing.e.A Declaration that the refusal the Respondent to allow the Petitioner to bring his witnesses and to cross examine the complainants violated the Petitioner's right to fair administrative action and his non-derogable right to a fair hearing.f.A Declaration that the Petitioner's summary dismissal was unfair, unlawful, unconstitutional and of no legal effect to the extent that the impugned disciplinary process contravened the provisions of Articles 27, 28, 35, 41 and 47 of the Constitution of Kenya, 2010.g.An Order Of Certiorari quashing the any investigation report, the show cause letter dated 7 August 2025, and the dismissal letter dated 17 September 2025 in respect of the subject matter of this Petition.h.A Conservatory Order do issue restraining the Respondent, its agents, servants or any other person acting for and or on their behalf from communicating to any third party about the allegations in respect of the allegations leading to the wrongful summary dismissal of the Petitioner.i.An Order For Compensation of twelve (12) month's salary amounting to USD 46,740 for violation of the Petitioner's Constitutional Rights under Articles, 27, 28, 35, 41 and 47 of the Constitution of Kenya 2010 as outlined hereinabove.j.An Order For Compensation of twelve (12) month's salary pursuant to Section 49 (c) of the Employment Act No. 11 of 2007, amounting to USD 46,740.k.An Order for payment of housing allowance for the years worked, as well as for payment of any pending terminal dues payable to the Petitioner.l.Order directing the Respondent to issue the Petitioner with a Certificate of Service in accordance with Section 51 (1) of the Employment Act, No.11 of 2007m.An order for interest at 12% p.a. on prayers (i) and (j) herein from the date of filing the Amended Petition until payment in full.n.That the costs of this Petition be borne by the Respondent 2.The petitioner filed his affidavit sworn on the 24th October 2025 in support of the petition and exhibited as his evidence - CSM 1, copies of his Employment Contract with the Respondent, commencing 15 November 2021, and a Variation of Employment Letter dated 1 September 2023; CSM 2, a true copy of his Payslip for August 2025; CSM 3, a true copy of the Impugned Show Cause Letter dated 7 August 2025; CSM 4, a copy of his email dated 30 July 2025, addressed to Mr. Mahul Shah; CSM 5, a copy of his Response Letter dated 12 August 2025, as well as the emails of Christine Mpofu and Sydney Gorejena; CSM 6, a copy of the Invitation Letter dated 29 August 2025; CSM 7, a true copy of a letter dated 2 September 2025 issued by Messrs. Mugane Law LLP; CSM 8, a true copy of a letter dated 4 September 2025 issued by the Respondent, as well as emails dated 4 September and 9 September 2025; CSM 9, a true copy of a bundle comprising a Notice of Termination, the minutes generated from the hearing, the deliberations of the Respondent's Disciplinary Panel, an email from his lawyers indicating that the minutes were not accurate and/or were inconclusive, and a Demand Letter dated 22 September 2025; and CSM 10, true copies of the Respondent's Disciplinary Policy and Workforce Investigations Guiding Principles. Response 3.The petition was opposed by the Respondent through an affidavit by Matthew Charles Rumpus, who stated he is their General Counsel. The affidavit was sworn on 20th November 2025 in Western Australia. The deponent submitted the same documents as the petitioner and, additionally, included the respondent’s code of conduct and the witness statements of the students of Bulawayo College related to the disciplinary process. Hearing and evidence 4.The case was heard viva voce. The petitioner’s case was presented on the 3rd of March 2026, with the petitioner as the sole witness. He adopted his supporting affidavit dated 24th October 2025, along with the exhibits, as his evidence. He was cross-examined by counsel for the respondent, Mr Kuyo, and re-examined by his advocate. The respondent’s case was heard on the same date with the witness, Matthew Rumpus, who adopted his affidavit dated 20th November 2025 and the exhibits as his evidence. He was cross-examined by his counsel, Mitto, and re-examined by his counsel. Petitioner’s case in summary 5.At the time of his unlawful termination, the Petitioner held the position of Student Recruitment Manager - Eastern & Southern Africa (UPAA), and was earning an annual salary of USD 46,740 – a copy of the Petitioner's pay slip is annexed as exhibit "CSM 2” Following the Petitioner's attendance of a recruitment event on 28 July 2025, at Girls College Bulawayo (Zimbabwe), he was issued with a disputed Notice to Show Cause (“NTSC"). The Petitioner raises issue with the NTSC for three reasons. One, it was titled "Intention to terminate Employment' insinuating a premeditated process. Two, the letter also expressly informed the Petitioner that the Respondent was "contemplating" his termination and three, the Petitioner was charged with "gross misconduct' and was not specifically charged with "sexual harassment". 6.Whilst the NTSC made mention of an investigation having been conducted, the Petitioner was never given a copy of the Investigation Report despite requesting for it vide his lawyer's letter dated 2 September 2025 – see annexure "CSM 7" for a copy of the aforesaid letter. RW1 - Matthew Rumpus, testified in his cross examination that inquiries were in fact conducted when the complaints were allegedly received, but these findings were not shared with the Petitioner. The Petitioner was taken through a hearing based on alleged complaints (presented by way of written statements). As the alleged complainants were anonymized, the Petitioner was basically required to respond to unknown persons (who remain unknown at the time of filing these submissions). The Petitioner's request to have the complainants deanonymized was summarily rejected on an allegation that the said complainants were minors. No evidence was adduced by the Respondent to confirm these complainants were minors (save for an unsubstantiated statement by a Mr. Rodwell Harinangoni). The Petitioner's position is that even if the college students were minors, which is disputed, the allegations made against him were so grave as to require their interrogation and cross examination. Mr. Rodwell Harinangoni, who is at instructor at Girls College, confirmed during the Disciplinary Hearing of 10 September 2025 that he did not interrogate the alleged complainants, to ascertain the veracity of their claims in the written statements. Mr. Rodwell was also keen to solicit for complainants, who appear to have been pursued as opposed to them reporting the incidents at their volition. In his email of 31 July 2025, Rodwell wrote to Mahul Shah of Navitas, in part, as follows: "If you need me to find others to say something about those issues too, please let me know' - confirming a deliberate solicitation of complainants - see page 51 of the Petitioner's Supporting Affidavit. The Petitioner's position that his termination was pre-determined is further corroborated by the fact that the Respondent refused to investigate the said Petitioner's complaints against Judith Ward's racial discrimination against him. This investigation was critical noting that Judy Ward was evidently involved in orchestrating his termination (see pages 40- 44 and page 51 of the Supporting Affidavit). The Respondent refused to call Judith Ward as a witness during the Disciplinary Hearing, effectively denying the Petitioner an opportunity to cross-examine her about her racial profiling of the Petitioner, and her role in his ultimate termination. 7.The Respondent equally refused the Petitioner's request to call two favourable witnesses, Christine Mpofu & Sydney Gorejena, who were relevant witnesses as they had issued commendation emails to the Petitioner regarding his performance when he attended their student recruitments in their schools (around the same time he went to Girls College Bulawayo). Due to the nature of the allegations, these witnesses were critical as they would have spoken to the Petitioner's demeanor, attitude and general behavior when speaking to female students. It is noteworthy that Judith Ward confirmed, in her correspondence with the Respondent, that there was another recruitment agent standing next to the Petitioner (about 2 meters apart), and had not heard the Petitioner make the comments the anonymous complainants allege were made (see page 43 of the Supporting Affidavit). The Respondent's case in brief 8.It is not disputed that the Petitioner was bound by the Navitas Code of Conduct and his Employment Contract dated commencing 15 November 2021 and a Variation of Employment Letter dated 1 September 2023 (collectively the Employment Contract). The Code of Conduct prohibited conduct that could bring the Respondent into disrepute. The allegations against the Petitioner arose during a student recruitment drive at Gir's College Bulawayo, Zimbabwe, and related to inappropriate sexual language with female students aged between 16 and 17 years. These allegations formed the basis of the disciplinary action conducted. 9.The Petitioner was issued with a Notice to Show Cause dated 7 August 2025 (the Notice) summarising the allegations and expressly stating that, if substantiated, they could constitute a serious breach of trust, professional conduct and the Respondent's Safeguarding and Child Protection Policy and could result in termination. The Notice invited the Petitioner to respond, and he duly furnished a written response dated 12 August 2025. 10.The Petitioner was appropriately supplied with the students' written statements alongside the Notice and afforded an opportunity to engage the evidence against him. During the disciplinary hearing, the Petitioner cross-examined Mr. Rodwell Harinangoni, who confirmed the ages of the students involved as minors. 11.Concerning representation, the individuals the Petitioner sought to have attend the disciplinary proceedings were not employees of the Respondent. Nevertheless, the Petitioner was permitted to have legal counsel present at the disciplinary hearing who was not allowed to interfere with the proceedings. The disciplinary process was anchored on the Respondent's Code of Conduct and the allegations against the Petitioner arising from the recruitment exercise at the Girls College Bulawayo, rather than on any discriminatory consideration. There is no evidence that the Petitioner was treated differently from other employees in similar circumstances or that the disciplinary steps were motivated by a statutorily prohibited ground. 12.Aside from the fact that the Petitioner was paid a gross salary that was inclusive of house allowance, the Petitioner never demanded a housing allowance during the tenure of his employment. Accordingly, any such claim lacks a factual basis. The Respondent submitted that the Petition lacks merit and ought to be struck out as it raises no constitutional issue that cannot be remedied within an ordinary suit under the Employment Act, 2007. 13.It is not disputed that the dispute arises purely from an employer-employee relationship governed by the Employment Act, 2007. The Petitioner's filing of a constitutional action rather than an ordinary civil claim in the employment court, trivialises the constitutional mandate of this Court. DETERMINATION 14.The parties filed written submissions. Issues for determination 15.The Petitioner submitted on the law under the following two broad legal arguments: -a.Whether the Petitioner's Termination was Procedurally & Substantively Lawful; andb.Whether the Petitioner is entitled to the Prayers in the petition 16.Conversely, the respondent addressed the following issues-a.Whether the respondent had justifiable reasons for terminating the petitionerb.Whether the respondent followed due process prior to the petitioners’ termination,c.Whether the petitioner was discriminated against,d.Whether the petitioner is entitled to relief sought 17.The court, having heard the case was of the considered opinion that the issues addressed by the parties were relevant and framed the same as per the petitioner’s as follows-a.Whether the Petitioner's Termination was Procedurally & Substantively Lawful;b.Whether the Petitioner is entitled to the Prayers in the petition Whether the Petitioner's Termination was Procedurally & Substantively Lawful; 18.The threshold for determination of fairness of termination of employment is according to the provisions of section 45 (2) of the Employment Act to wit:- ‘45(2) A termination of employment by an employer is unfair if the employer fails to prove—(a)that the reason for the termination is valid(b)that the reason for the termination is a fair reason—(i)related to the employees conduct, capacity or compatibility; or(ii)based on the operational requirements of the employer; and(c)that the employment was terminated in accordance with fair procedure.’’ To pass the fairness test the termination must pass the substantive (in terms of reasons) fairness and the procedural fairness under section 41 of the Employment Act (Walter Ogal Anuro v Teachers Service Commission[2013] eKLR). Analysis of evidence 19.The petitioner apologized for inappropriate language. During the hearing when asked if he apologized on the basis that there were serious allegations, the claimant said his superior, Peter, who approved his travel, said it was not serious. He had no evidence of that position in court. The petitioner admitted the code of conduct requires not to engage in behaviour to bring the institution into disrespect and to treat students with respect (page 19 of Respondent’s bundle). He confirmed receipt of NTSC dated 7th August 2025 and that it summarized the allegations against him. The NTSC stated that if the allegation was substantiated, he would be terminated. He responded to NTSC on 12th August 2025. He confirmed having attended disciplinary and gave his representation on 10th September 2025.The petitioner told the court at the hearing the show cause was titled contemplation of termination and before that, Shah (Boss) gave him an offer and said they would terminate his employment. The Petitioner admitted the allegations were not in his pleadings. The parties' case lies within their pleadings. This is consistent with not ambushing the other party at the hearing. 20.The petitioner admitted he had been informed the minors would not be called as witnesses. He committed to having received a letter to that effect (page 32 of the response). He admitted to have received statements of the victims. The petitioner objected to use of words minors and victims and the court directed parties use word “student” in place. The petitioner admitted that the students’ teacher, Rodwell, appeared at the disciplinary proceedings. The Petitioner admitted the teacher said the students were aged 16-17 years. The Petitioner countered the teacher had prove of the age. The Petitioner confirmed the teacher said the students were aged between 16-17 years as they were in forms 5 and 6. 21.The Petitioner confirmed he had been informed of right to be accompanied by fellow colleagues. The Petitioner denied having asked to be accompanied by 2 non-employees saying they were partners. The Petitioner said the requirement of his lawyer to have observer status at the internal hearing through which they could confer, and the Advocate could make a representation at the end of the hearing, affected his rights as the issue of sexual harassment arose later, a day before the disciplinary hearing, and that was why he sought legal advice. 22.The Petitioner admitted having received an email from Shah which detailed allegations, and the summary was that the allegations were in the nature of sexual harassment. He was shown message by Rodwell Bulletin 3 “named African women”. He said the statements were contradictory. 23.During re-examination, the petitioner told the court he was asked to respondent urgently by Shah to the allegations. He said they had agreed 1 hour. That on apology in email to Judi AND students he used word may. The court will peruse the letter and make own conclusion. 24.The Report by Rodwell was a day before the disciplinary hearing on 9th September 2025. The Report had not been shared before. He had asked Christine to accompany him to hearing as they had gone to the said college together and she is a career teacher and had said they had sent a good recommendation about him to Judi (page 28 is the recommendation). He also wanted to call Sydney as he had visited the school while in Zimbabwe and he had written about his conduct. He had also visited colleges in Bulawayo who had female student. He requested Judi to be called as witnesses. He had made complaints against Judi for excluding him from WhatsApp groups. A page 42 of his bundle of correspondence between Shah and Fundi and she was involved in his investigations. He said produced evidence of correspondence by his advocate at page 37. 25.During cross-examination of Respondent’s witness, Mathew Rumpus, he confirmed that the Petitioner had visited other colleges besides the girls' college at Bulawayo and that no complaints had been received from the other colleges. They relied on a letter dated 1st August regarding suspension pending investigation, which was ongoing, but no investigation report was available. He agreed on the title of NTSC and said they relied on documents for the NTSC, not the investigation report. Judi was an adviser under contract. They did not investigate the allegation against Judi and he denied that Judi was involved in the preliminary investigation. He admitted that, on page 38, there was an annexure of Judi’s WhatsApp dates and, on page 42, Judi’s correspondence. He stated that Shah showed the Petitioner’s response with Judi to demonstrate that the respondent was taking the allegations seriously. The witness believed Judi was present at the event in question. He did not know whether Andrew, who was also at the event, raised the issue with Judi. The witness confirmed that Rodwell did not interrogate the students but asked them to put their allegations in writing. He confirmed that the students were not called and that the petitioners had requested to cross-examine them. He could not recall if Judi was requested by the Petitioner. Referring to page 33, paragraph 5 of the petitioner bundle, he confirmed that the three persons were required to testify by the petitioner. He confirmed Christine and Sydney would have been favourable witnesses for the petitioner. He denied Judi was involved in the investigation. He confirmed hearing was on 10th September. He was not sure when Rodwell's report was shared with the Petitioner. 26.During re-examination, the respondent’s witness told the court that at the disciplinary hearing, the Respondent did not rely on the WhatsApp chats shared on 9th September. Judi was not an employee to be compelled to attend as requested by the Petitioner. They said Christine and Sydney were positive towards the Petitioner, and the respondent did not see probative value in calling them. They explained this to the petitioner’s legal team. Andrew was not within earshot of the incident and had no probative value. They did not rely on Judi’s evidence, and Rodwell confirmed he had not been influenced by Judi or any other person. All material relied on by the panel was shared, and there was no complaint about late sharing of material. The Petitioner apologised if he used offensive language. Decision 27.The court, on evaluation of the evidence before the court, finds that this was a normal employment claim that was unnecessarily escalated to a constitutional petition, offending the doctrine of constitutional avoidance. The court upheld the decision relied by the respondent in Wajir Wasco Limited alias Wajir Water & Sewerage Company & another v Mohamed & 2 others [2024] KECA 937 (KLR) where the Court of Appeal held as follows- There is no dispute that the germane dispute is stoppage of salaries. This is an employer/employee dispute. We are alive to the fact that every case has a constitutional underpinning, be it a criminal case, civil or commercial. However, it is important to point out that not every dispute ought to be brought as constitutional question. A constitutional question is an issue whose resolution requires the interpretation of a constitution rather than that of a statute. The germane issue in this can case be resolved by interpreting the facts, the contract documents, (written or oral) and the relevant statutes. This discourse brings into focus the doctrine of constitutional avoidance, which is defined as a preference of deciding a case on any other basis other than one which involves a constitutional. The doctrine of constitutional avoidance was fortified in Sports and Recreation Commission vs. Sagittarius Wrestling Club and Anor2001 (2) ZLR 501 (S) in the following passage:“…Courts will not normally consider a constitutional question unless the existence of a remedy depends upon it; if a remedy is available to an applicant under some other legislative provision or on some other basis, whether legal or factual, a court will usually decline to determine whether there has been, in addition, a breach of the Declaration of Rights.” 28.In Chawira & Ors vs. Minister of Justice Legal and Parliamentary Affairs & Ors CCZ 3/17 the Constitutional Court of Zimbabwe held:“…courts are generally loathe to determine a constitutional issue in the face of alternative remedies. In that event they would rather skirt and avoid the constitutional issue and resort to the available alternative remedies.” 29.The court in S vs. Mhlungu 1995 (3) SA 867 (CC) 59 laid out constitutional avoidance as a general principle in the following terms: “I would lay it down as a general principle that where it is possible to decide any case, criminal or civil, without reaching a constitutional issue, that is the course which should be followed.” 30.The doctrine of avoidance is primarily viewed by courts from the position that although a court could take up a matter and hear it, it would still decline to do so if there is another mechanism through which the dispute could be resolved. In Kenya, the Supreme Court stated in Communication Commission of Kenya & 5 Others vs. Royal Media Services Ltd & 5 Others [2014] eKLR (at para 256) that the principle of avoidance means that a court will not determine a constitutional issue when a matter may properly be decided on another basis. 31.Currie and de Waal in The Bill of Rights Handbook (2013) 72 opine that the principle of constitutional avoidance is of crucial importance in the application of the Bill of Rights. The authors state: “When applying the Bill of Rights in a legal dispute, the principle of avoidance is of crucial importance. As we have seen, the Bill of Rights always applies in a legal dispute. It is usually capable of direct or indirect application and, in a limited number of cases, of indirect application only. The availability of direct application is qualified by the principle that the Bill of Rights should not be applied directly in a legal dispute unless it is necessary to do so.”The court of appeal applying the foregoing held in the decision - ‘46(d)the learned judge failed to appreciate that the germane issue before him was basically an employer employee dispute and the mere invocation of Articles of the Constitution did not bar him from addressing his mind to the question whether the respondents could get an adequate remedy at the forum provided under the statute.’ The court finds that the Employment Act was a sufficient law to address the grievance of employment before the court. Nevertheless, the court proceeded to determine the case on the merits. On whether the reason for termination was fair 32.The court found the reason for the termination related to sexual harassment of students at a college of girls at Bulawayo, Zimbabwe. The statements by students were availed by their teacher, Rodwell, and the petitioner gave representation. The petitioner apologized for the incident but at hearing advanced he was given 1 hour to respond (email of 30th July 2025, CM4). The court perused the email of the petitioner dated 30th July 2025 to Shah and Peter (for respondent). The petitioner had written as follows- ‘ Dear Mahul and Peter, Thank you for taking the time to share the feedback following the recent visit to Girls College. I would like to begin by offering my sincere apologies to you, Judy, the students, and the wider school community for any discomfort or distress that may have arisen from my interaction with the students during the session. Please be assured that it was never my intention to offend, disrespect, or create an uncomfortable environment. Having reviewed the concerns raised, I want to emphasize that I take them very seriously. I fully respect the need to reflect on how my communication may have been received. I also recognize that engaging with young students, especially young ladies requires the highest standard of professionalism, awareness, and sensitivity, and I deeply regret if anything I said or did fell short of those expectations. Regarding the specific allegations: 1. Inappropriate Language I sincerely apologise if any of my language came across as inappropriate or unprofessional. While I do not recall using any swear words during the session, I acknowledge that in trying to build rapport with the students, my tone may have been too casual. If any expressions were perceived as offensive or made the students uncomfortable, I truly regret that..’’(page 49 of the petitioner’s trial bundle). The student’s statements were produced by Rodwell, a teacher of the students who states they were in year 15 and 16, thus aged 16 – 17 years. The petitioner disputed that they were minors, stating there was no proof. The court finds the ages was irrelevant as they were students protected by loco parentis principle based on trust. The petitioner was entrusted to work with students. The court perused the statements and did not find a basis to doubt the students' allegation as there was no basis to frame the petitioner who was a visitor. The court found that the apology of the petitioner related to the allegations and he admitted he was casual in his language. The employer had no basis to doubt the apology of the petitioner. The same case with the court. The court, as stated earlier, found this to a normal claim; thus, the threshold of reason under section 43 of the Employment Act applied. Section 43 of the Employment Act states- ‘43. Proof of reason for termination(1)In any 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 employer 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.’ The court finds the employer had a reasonable basis to suspect the petitioner was involved in misconduct in the nature of sexual harassment, and this is supported by the petitioner’s apology. That was a valid basis of termination as it was misconduct(section 45 of the Employment Act). The petitioner could no longer be trusted with students under the loco parentis principle. Whether there was procedural fairness in the termination. 33.The procedural fairness is as stated in section 41 of the Employment Act to wit – ‘41. Notification and hearing before termination on grounds of misconduct(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.’ The petitioner admitted to having received a show cause letter dated 7th August 2025 and an invitation to a hearing dated 4th September 2025 informing him of the right to be accompanied by a fellow employee and granted his advocate observation status. 34.The Petitioner alleged the statements by the students were made late. The petitioner did not raise the issue of the late service of the statements at the disciplinary hearing. He had an advocate and no request for adjournment. He did not raise the issue of not having understood the statements. They were written in plain English and fairly short. The court finds from the notice show cause that the petitioner was aware of the nature of the complaints he was facing, being of the nature of sexual harassment. For example, in an email dated 30th July 2025 by Shah to the petitioner, he was referred to a telecommunication and his attention was brought to the email chain from Girls' College, Bulawayo. Among the issues in the chain messages was a message by Rodwell Haringoni where it was alleged the petitioner showed the student pictures using one of the student’s gadgets, being inappropriate images of African women naked from the waist up, and made comments using an Indian accent directed at some Indian ladies who were part of the group. The court finds the foregoing falling under sexual harassment. On perusal of the Notice to show cause dated 7th August 2025, the court noted similar allegations as follows- ‘As per the details previously shared with you by Mahul Shah and Peter Paskulich. allegations have been made by five students in relation to your conduct during student alleged that you asked the students intrusive and inappropriate personal questions, recruitment event held on 28 July 2025 at Girls College Bulawayo, Zimbabwe. It is including but not limited to asking if 'Zimbabwean woman are good kissers', how 'wonderful it is to walk naked on a beach' and the use of swear/ cuss words.’ 35.The court found no prejudice is from the service with student’s statements a day before. On the issue of the title of NTSC, that is, ‘intention to terminate employment -notice to show cause’ being premeditated termination, I find the language consistent with the provisions of section 41 of the Employment Act- “41. (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.’’ (emphasis given) 36.The process is stated in section 41 of the Employment Act. The employee was informed of right to call fellow colleague and opted for Advocate. Section 41 envisages fellow employee as the disciplinary is at the shop floor. I find nothing unfair in granting the lawyers observation status and not being allowed to interrogate the witness or intervene in the internal process. Section 41 does not envisage the involvement of legal counsel in proceedings at the shop floor. 37.The Petitioner was allowed to be accompanied by Advocate. I perused the minutes and found the petitioner was granted the opportunity to make a representation, and as per the email to the advocate, he had the right to advise the client and make a recommendation after hearing what matters are in compliance with section 41. The court finds the employer is under no legal obligation to call a particular witness. The persons alleged Judi, Christine and Sydey had not written any witness statement and the employer had no basis to compel their attendance. In the opinion of the court the internal hearing was based on statements by the students and their teacher appeared. The allegations of discrimination against Judi were not relevant to the hearing, as there was no proof that the said lady, who was not a fellow employee, had participated in the termination. The court found no nexus between the complaints of the students and allegations against Judi. It is true that students (the petitioner contested the use of the word " victim " or minor) in sexual harassment cases need not be called to testify at the hearing, but the statements ought to be made availed to the employee. The court found that there was a basis for the court to treat the students as victims of sexual harassment based on the inappropriate language and exposure alleged in their statements, for which the petitioner half-heartedly apologised. The Court of Appeal decision in Unilever Tea Kenya Limited v Kenya Plantation & Agricultural Workers Union [2025] KECA 830 (KLR) supports the foregoing position as follows-‘We must also make it clear, that there is no legal requirement that victims of sexual harassment testify in person. What matters is the sufficiency and credibility of the evidence in support of the allegation. Here we have evidence on record to demonstrate that the grievant sexually manipulated an employee and that she was too traumatised to be presented before court. In our view, the trial court did not consider the weight of the allegation and the overwhelming evidence against the grievant. With respect, the trial court took a light and lenient view of the evidence presented before it.’ The decision unseats the decision of the court cited and relied by the petitioner in C.O.O. V GAIN (2025)e KLR. 38.I have come to the conclusion that the termination was lawful and fair in compliance with sections 411, 43 and 45 of the Employment Act. 39.I have also concluded that the petition did not meet the threshold of a constitutional petition. Before the court was the question of a fair hearing in the termination of employment under the legal framework of sections 41, 43 and 45 of the Employment Act. 40.The petition is dismissed. No order as to costs, to temper justice with mercy. DATED, SIGNED, AND DELIVERED IN OPEN COURT AT NAIROBI THIS 19th DAY OF JUNE, 2026.JEMIMAH KELI,JUDGE.In The Presence Of:Court Assistant: OtienoPetitioner – MuganoRespondent – Kuyo