https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2270

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI** **PETITION NO. E213 OF 2025** **PATRICK ITHIA MASILA PETITIONER** **VERSUS** **METSEC CABLES LIMITED 1ST RESPONDENT** **ATTORNEY GENERAL 2ND RESPONDENT** **OFFICE OF THE DIRECTOR OF PUBLIC PROSECUTION 3RD RESPONDENT** **THE INSPECTOR GENERAL,** **NATIONAL POLICE SERVICE 4TH RESPONDENT** **JUDGMENT** The petitioner filed the petition dated 20 December 2025. The matter came up in court on several occasions before the Deputy Registrar, and on 3 June 2026, a mention date before the Judge was set for 29 June 2026. On the due date, the petitioner did not attend. Hearing directions were issued, and the parties were to file written submissions. The petitioner has not filed any written submissions in support of the petition. The petition is that the petitioner is an adult. The 1st respondent is a limited liability company. The 2nd respondent is the office established under Article 156 of the Constitution. The 3rd respondent is established under Article 157 of the Constitution. The 4th respondent is established under Articles 245 and 246 of the Constitution. The petition is that the 1st respondent employed the petitioner as a messenger on 7 July 2011. He was under short-term contracts of 3 and 6 months from 2011 to 2023. His work site was the head office in Nairobi. Work duties included running official errands, collecting and delivering documents and occasionally sourcing quotations and spare parts for company maintenance and operations. In carrying out his duties, the petitioner would be instructed by his supervisor to source various service providers or spare parts, prepare quotations, obtain them, and submit them to the supervisor or manager for approval. He would then collect the goods upon payment by the vendor. The payments would be made either in cash or via M-Pesa transactions, either directly by the manager or through the till pay. The petitioner did not handle company funds. Upon completion of each transaction, the petitioner would return to the office with the product and payment receipt for verification. The petition is that the employment continued under various short-term contracts for 13 years. On 29 July 2015, the 1st respondent increased the petitioner’s salary from Ksh. 26,700 to Ksh. 28,836 and was enrolled on the NSSF and NHIF. The petition is that an issue arose concerning a set of purchase receipts for spare parts that the petitioner had collected from a supplier. The cashier, Dorcas Mawia, reported to the accounts office that the receipts did not appear to tally with the ETR-generated receipts and alleged they were fake. There were no internal investigations carried out to verify the allegations or to allow the petitioner to respond before disciplinary action was taken. On 16 January 2023, the petitioner was served with a notice to show cause requiring him to appear before a disciplinary committee on 18 January 2023. He was advised to be accompanied by a fellow employee. The hearing was conducted by staff from the human resources department, accounts and audit. The petitioner attended alone and was questioned on the subject receipts. The petitioner demonstrated that the receipts were authentic, that he had carried out instructions, and that he had no role in the payment process or in generating receipts. There was no communication thereafter. Later, the petitioner was called by CID officers from Nairobi and asked to report to their office. He declined since he had taken leave to attend to personal matters. While attending to a different matter at Mlolongo Police Station, the petitioner was arrested on allegations of forgery, detained at Capitol Hill Police Station, and later transferred to Central Police Station. He was arraigned in court, but the police applied for his detention for additional days pending investigation. The petition is that the petitioner was subjected to humiliation, inhuman treatment and frog-marched to the 1st respondent’s office in full view of other employees. This subjected him to ridicule, humiliation and loss of dignity. The petitioner was charged in court over alleged theft. The case proceeded for 2 years, and the petitioner was removed from the payroll, leaving the petitioner without income. The criminal court acquitted the petitioner under section 204, finding the allegations baseless. Despite the court directing the respondents to return the personal items held by the 3rd respondent during investigations, this was not done. The 1st respondent has refused to reinstate the petitioner and pay the terminal benefits, thereby effectively terminating his employment without due process. The petitioner has suffered loss of reputation. His rights under the Constitution have been violated as secured under Articles 22, 23, 10, 27, 28, 29, 41, 47, 48, 49 and 50 of the Constitution. The petitioner is seeking orders directing that a declaration be issued stating that the respondents violated his rights by subjecting him to unfair disciplinary procedures and prosecution. The 1st respondent's failure to pay terminal dues or issue a Certificate of Service is unlawful and has prejudiced the petitioner, who seeks the payment of the following: 1. One month's notice pay. 2. 12 months' compensation. 3. Accrued leave pay. 4. Service pay or gratuity pay. 5. Costs. The petitioner is also seeking an order directing the 4th respondent to release his personal items held during investigations. An order directing the 1st and 4th respondents to issue a written apology to the petitioner acknowledging the wrongful treatment, humiliation and reputational damage. An order declaring the arrest and charge contravened the petitioner’s rights. The petitioner is also seeking an order awarding him general, aggravated, and exemplary damages for wrongful termination of employment, violation of his constitutional rights, loss of dignity, and deprivation of liberty, as well as compensation for wrongful arrest. The petitioner filed his Supporting Affidavit to the petition. In reply, the 1st respondent filed the Replying Affidavit of Alice Mutitu, the group manager, human resources, and averred that the petition is frivolous and an abuse of court process and should be dismissed with costs. The petition does not raise any constitutional issue because the alleged dispute between the petitioner and the 1st respondent is contractual, and its remedies are provided under the Employment Act (the Act). The cause of action arises from alleged employment and breach of contract, and the petitioner should have filed a Memorandum of Claim rather than a constitutional petition. By invoking the constitutional petition route, the suit is misguided and should be dismissed. Mutitu avers that the 1st respondent employed the petitioner as a messenger earning Ksh. 37,500 per month under a fixed-term contract dated 1 July 2022. He accepted the terms and engagement from 1 July 2022 to 31 January 2023. The renewal of the term contract was subject to operational requirements and satisfactory performance. Owing to the nature of his duties, the petitioner was expected to maintain honesty, integrity and accountability in all procurement-related transactions undertaken on behalf of the 1st respondent. In 2022, the respondent noticed discrepancies in certain receipts that the petitioner presented to support procurement transactions. Preliminary investigations raised concerns regarding the authenticity and validity of the receipts. The matter was escalated to the accounts, audit, and human resources departments for investigations. The 1st respondent suspected irregularities, and the matter was reported to the police for independent investigations. While police investigations were ongoing, the petitioner failed to report back to the office from 29 November 2022 to 10 January 2023 without lawful cause. This compelled the 1st respondent, on 11 January 2023, to issue the petitioner with a notice to show cause and to hold a disciplinary hearing. This culminated in a notice of summary dismissal for gross misconduct on 31 January 2023. Upon summary dismissal, the 1st respondent tabulated terminal dues for days worked and accrued leave days, and applied statutory deductions to the payment, subject to the petitioner undertaking clearance. The police have since charged the petitioner in **Milimani Criminal Case No. E153 of 2023 – Republic v Patrick Ithia Masila.** The 1st respondent has no mandate to arrest or charge the petitioner in a criminal offence. The allegations made in this regard are not justified. As a law-abiding entity, a report was made to the police, and upon investigation, a criminal charge was filed. Mutitu avers that in May 2025, the petitioner and the 1st respondent engaged in discussions and, on humanitarian grounds and without admission of liability, agreed not to pursue the complaint. The withdrawal and discontinuance of the criminal proceedings did not negate the existence of reasonable suspicion of theft at the time the complaint was made. The allegations made by the petitioner have no merit, and he is guilty of material non-disclosure. The petitioner has failed to inform the court that he was afforded due process before his summary dismissal. The petition should be dismissed with costs. The 2nd respondent filed the Grounds of Opposition, alleging that the petition lacks specificity and that no relief is sought against it. The dispute concerns police conduct of investigations rather than prosecutions. The petition does not demonstrate a factual connection between the 2nd respondent and the allegations made, and the joinder herein serves no legitimate purpose. The 3rd respondent filed Grounds of Opposition that the petition does not disclose any cause of action against the 3rd respondent capable of joinder herein. The orders sought have no factual or legal nexus, and the foundation is employment, which does not exist with the 3rd respondent. The petition should be dismissed with costs. On the petition, the 1st respondent submitted that this is not a proper petition as held in **Jane Angila Obando v TSC & 2 others Petition No. 4 of 2020**. The court rules allow a party to file a Memorandum of Claim and to bring a case alleging violations of constitutional rights and freedoms. The petitioner has not achieved the threshold of a constitutional petition. The matters addressed in the petition concern an ordinary employment dispute that can well be addressed in a claim, as held in **Gabriel Mutava & 2 others v Managing Director Kenya Ports Authority & another [2016] eKLR.** The respondent submitted that the process leading to termination of employment was lawful and fair. The petitioner did not discharge his burden under section 47(5) of the Employment Act (the Act) to warrant the respondent in justifying the termination of employment. There was adherence to sections 41 and 44 of the Act. The respondent issued the petitioner with notice to show cause, which is admitted, and also invited him to a disciplinary hearing. His rights were protected. In **Fuchingo v Robinson Security Group, also known as Robinson Investment Limited, Appeal E021 of 2024**, the court held that the court should not descend into the shop floor to take up a managerial role. Where the employer finds a case of misconduct, such must be addressed within the allowed policy and the law. In this case, the petitioner was accorded due process. Reasonable action was taken by reporting the suspected theft to the police, as held **in Judicial Service Commission v Gladys Boss Shollei & another [2014] eKLR**, where the employer has a reasonable apprehension regarding the employee's conduct that touches on criminal conduct. A report to the investigative agencies is necessary and legitimate. Following the audit report, the 1st respondent established that the petitioner had submitted fake receipts and that the petitioner was informed and allowed to attend a disciplinary hearing. He failed to give a satisfactory response. Being on a term contract, the 1st respondent did not renew it, and the employment relationship terminated by effluxion of time. The terminal dues were calculated to be paid upon the petitioner undertaking clearance, which he has failed to address. The petition does not meet the threshold of a constitutional petition and should be dismissed with costs. The 2nd and 4th respondents submitted that this is not a proper petition. It has not been framed with precision and the remedies sought do not apply. The 1st respondent reported the matter to the police following suspicion of theft at work. The petitioner was charged based on investigations, leading to **Milimani CMCC Criminal Case No. E153 of 2023.** However, the complaint was withdrawn on 5 May 2025 on humanitarian grounds. The allegations that the respondents thus violated the petitioners' rights do not arise. The joinder of the respondents is improper, as held in CORD v Republic, where the court warned parties against bypassing the provisions of Article 23 of the Constitution. A petitioner must demonstrate that the state or its agents violated specific rights, and these rights cannot be pleaded in bulk. In this case, the rights under Article 41 of the Constitution have been enacted under the Employment Act and the Labour Relations Act. The petitioner has failed to demonstrate that the respondents have violated his employment rights. The 2nd and 4th respondents are not proper parties in these proceedings. The joinder herein is unnecessary. The 2nd respondent, as the legal advisor to the government, has not been accused of failing IN its duties. The 4th respondent, as the National Police Service, has a reactive mandate upon the making of a complaint, which has since been withdrawn. The petition has no legal basis and should be dismissed with costs. As set out above, the petitioner did not attend or file any written submissions in relation to the petition. It is thus left bare. **Determination** Indeed, as submitted by the respondents, under the employment relationship admitted between the petitioner and the 1st respondent, there was a contractual employment relationship. There were term contracts, the last of which ended on 31 January 2023. The employment relationship is thus regulated under the Employment Act (the Act). In addressing the dispute, the Employment and Labour Relations Court (Procedure) Rules apply. Rule 10 of the Court Rules allows a party to file a Memorandum of Claim and urge a case of constitutional rights violations. The need to file a constitutional petition is summarised in **Sumayya Athmani Hassan v Paul Masinde Simidi & another [2019] eKLR**; the court held that rights under Article 41 of the Constitution are entrenched under the Employment Act and the Labour Relations Act. These can be addressed through the mechanisms provided by such statutes rather than filing a constitutional petition. In **KKB v SCM & 5 others [KEHC 289 (KLR)**], the court held that if a case can be heard without invoking the Constitution, it must be heard. The need to invoke the Constitution is unnecessary. The mechanisms provided under the law are sufficient. This position is reiterated in the case cited by the 1st respondent in **Jane Angila Obado v TSC**, cited above. The need to invoke the constitutional petition route in this case is unnecessary. The petition has not demonstrated the unavailability of sufficient remedies under the Act to justify invoking it. This is not a proper petition. The petitioner admitted, under paragraph (22) of the petition, that on 16 January 2023 he was issued a notice to show cause and invited to a disciplinary hearing. The outcome thereof was issued through notice dated 31 January 2023 terminating his employment by summary dismissal for gross misconduct. The due process under section 44(3) and (4) of the Act entitles the employer to terminate employment when the employee is guilty of gross misconduct. The employee has the right to be informed of the allegations made against him and to attend and make his representations. This was secured, and a verdict was issued. The explanations provided by the petitioner regarding his conduct were found unsatisfactory. The 1st respondent had conducted investigations at the shop floor, which were also reported to the police as forming criminal conduct. Ultimately, the 1st respondent adhered to section 41 and 44 of the Act. There was a justified reason leading to the summary dismissal. The allegations made that there were rights violations cannot stand. The report to the police is part of the civic duty required of the 1st respondent. The 3rd and 4th respondents acted on the report and eventually charged the petitioner in **Milimani CMCC Criminal Case No. E153 of 2023.** The complaint has since been withdrawn on humanitarian grounds. The petitioner has not extricated himself from the complaint. **In Konosi v Adam & another [2023] KEHC 344 (KLR); Bumbe Technical Training Institute v Humphrey Onyango [2021] KEHC 3323 (KLR);** and **Benjamin v Cabinet Secretary, Ministry of Information Communication and Digital Economy & 4 others; Juma & 60 others (Interested Party) [2023] KEELRC 1246 (KLR)**, courts have emphasized that it is part of civic duty of reporting an offence to the rightful law enforcement agency, the police. In undertaking such duty, the 1st respondent cannot be faulted. In withdrawing the criminal complaint on humanitarian grounds, such civic duty did not abate. Regarding the joinder of the 2nd, 3rd, and 4th respondents, indeed, this not being a proper petition, in which an ordinary suit under a Memorandum of Claim was filed, these parties would be unnecessary. The arrest of the petitioner was based solely on a complaint by the 1st respondent, which is established to be well-founded. The investigation leading to a criminal charge had a foundation. The respondents were undertaking their constitutional mandate. The court finds no merit in the petition. **Accordingly, the petition is hereby dismissed. Costs to the respondents.** **Delivered in open court this 30th day of July 2026** **M. MBARŨ** **JUDGE** **In the presence of:** **Court Assistant: Kemboi** ……………………………………………… and …………………………………..………