Mongare v I & M Bank Ltd (Employment and Labour Relations Cause E066 of 2024) [2026] KEELRC 2017 (KLR) (16 July 2026) (Judgment)

REPUBLIC OF KENYA IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT MOMBASA ELRC CAUSE NO. E066 OF 2024 DADDIUS TOM MONGARE ...............................................CLAIMANT VERSUS I & M BANK LIMITED ..................................................RESPONDENT JUDGMENT # **A. INTRODUCTION AND BACKGROUND** 1. By a Memorandum of Claim dated 15th July 2024, verified by his affidavit of even date, the Claimant, Daddius Tom Mongare, sued the Respondent, I & M Bank Limited, alleging unfair and unlawful termination of his employment. He seeks payment of terminal dues quantified at Kshs.1,669,906/=, a declaration that his termination was unfair, revocation of the summary dismissal letter, and costs and interest. 2. The Respondent entered appearance and filed a Response to the Memorandum of Claim dated 30th October 2024, together with witness statements and a list of documents of even date, in which it denied the claim in its entirety, asserting that the Claimant was summarily and lawfully dismissed for gross misconduct following a fair process. 3. The suit proceeded to full hearing on diverse dates, culminating in a hearing on 4th November 2025. The Claimant testified as CW1 in support of his own case, adopting his witness statement and producing his bundle of documents. The Respondent called two witnesses: Simon Kariuki, a Senior Manager in its Security Department and a trained investigator (RW1), and John Nyamaiko, an Assistant General Manager in its Human Resources Department (RW2). Both adopted their respective witness statements and were cross-examined at length. At the close of the hearing, the parties filed written submissions, which I have carefully considered together with the entire record, the pleadings, the witness statements, and the documentary exhibits produced. 4. It is common ground that the Claimant was employed by the Respondent in the year 2019 as a Credit Analyst, Personal and Business Banking (PBB), based at the Respondent's Nyerere Avenue Branch, Mombasa, at a last drawn gross monthly salary of Kshs.105,688/=, and that he served in that capacity until 20th May 2024, when his employment was summarily terminated. 5. It is also common ground that on 23rd March 2024 at 1.46 p.m., the Claimant accessed, through the Respondent's Finacle core banking system, a joint United States Dollar account held in the names of Sarit S. Raja Shah and Minal S. Raja Shah, account number 00100012291201. It is not disputed that the said account is held by a Director of the Respondent Bank, who also sits as the Group Executive Director of Coast Bottlers Limited (CBL), and by his spouse. 6. By a letter dated 18th April 2024, the Respondent suspended the Claimant on half pay and, in the very same letter, invited him to a disciplinary hearing scheduled for 24th April 2024, to “explain his role in the incident further as a credit analyst in view of the laid down procedures and lapses observed thereof.” The hearing proceeded as scheduled on 24th April 2024 via a Microsoft Teams video call, and by a letter dated 20th May 2024 titled “Re: Summary Dismissal,” the Respondent terminated the Claimant's employment with immediate effect, citing breach of trust and confidence and gross misconduct. 7. Aggrieved, the Claimant, through the firm of Opolo & Opolo Associates Advocates, demanded payment of his terminal dues by a letter dated 19th June 2024, which demand the Respondent did not meet, precipitating the filing of this suit. 8. What falls for this court's determination, ultimately, is whether the reason advanced by the Respondent for the Claimant's summary dismissal was valid and fair; whether the process leading to that dismissal met the threshold of procedural fairness demanded by the Employment Act, 2007; and, if the termination is found wanting on either or both counts, what reliefs the Claimant is entitled to. # **B. THE RESPECTIVE CASES OF THE PARTIES** ## ***(i) The Claimant's Case*** 9. The Claimant's case, as pleaded and elaborated in his witness statement and oral testimony, is that his duties as a Credit Analyst PBB entailed, among other things, comprehensive analysis of both new and existing corporate customers, evaluation of the risk associated with proposed credit facilities and borrowers, and continuous follow-up on facility applications with relationship managers and other units of the Bank. 10. He testified that on 23rd March 2024, one Zadock, a relationship manager employed by the Respondent, informed him that Coast Bottlers Limited (CBL) — which he described as a sister company of the Respondent with which it shared common directors — was seeking to acquire new vehicles, either through outright purchase from Isuzu or through a lease facility to be extended through Rentworks East Africa Limited, an existing corporate client of the Respondent. He stated that were CBL to take the leasing route, the Respondent would be called upon to finance Rentworks' purchase of the vehicles for onward lease to CBL, and that he, as the credit analyst likely to handle the resultant application, undertook preliminary research on CBL in anticipation of being looped into that transaction. 11. In the course of that preliminary research, he retrieved a prior credit application relating to CBL from the Respondent's corporate loan origination system, which listed the Respondent's Group Executive Director as one of CBL's directors. He stated that, following what he described as the usual practice in corporate due diligence of ascertaining account turnover and any transfers between a corporate borrower and its directors, he attempted to access accounts associated with that director — the first attempt was blocked by the system, and the second, the subject dollar account, was the one that gave rise to the present dispute. He maintained that he did not access the account out of idle curiosity, that he shared no information from it with any third party, and that he was never told the identity of the “strangers” he was alleged to have supplied information to. 12. He testified that on 16th April 2024 he received a call from the head of security regarding the access, to which he responded with his explanation; that on 17th April 2024 he discussed the same with the Nyerere Avenue Branch Manager, Ms. Raksha Singh; and that he was, the very next day, 18th April 2024, served with a letter suspending him and simultaneously inviting him to a disciplinary hearing on 24th April 2024. He stated that he duly attended the hearing, reiterated his explanation, and caused the relationship manager to forward, by email, the correspondence from Isuzu and Rentworks East Africa Limited that had given rise to his preliminary research; notwithstanding this, the Respondent proceeded to terminate his employment on 20th May 2024, without, in his view, any justifiable reason and without addressing that evidence. 13. He denied ever being served with a show cause letter or with a copy of any investigation report, and maintained that his conduct on 23rd March 2024 fell squarely within his job description as a credit analyst. He testified that he did not take annual leave in the four years preceding his termination and holds 84 days of accrued and unutilised leave. His claim, as pleaded, is for one month's salary in lieu of notice (Kshs.105,688/=), payment for 84 accrued and untaken leave days (Kshs.295,926/=), and compensation equivalent to twelve months' gross salary for unfair termination (Kshs.1,268,256/=), together with a certificate of service, costs, and interest — a total of Kshs.1,669,906/=. ## ***(ii) The Respondent's Case*** 14. The Respondent's case, as pleaded and testified to through RW1 and RW2, is that the Claimant, without any legitimate business purpose, authorisation, or assignment, accessed the personal joint account of a Director of the Bank and his spouse using his access privileges as a credit analyst, and that shortly thereafter the account holder's spouse was contacted by strangers who appeared to possess sensitive account information, including her telephone contact. 15. RW1, Simon Kariuki, testified that upon a complaint from the affected customer, his department retrieved the Finacle system logs, established that the Claimant had accessed the account without any assignment or work-related justification, and that on inquiry the Claimant “did not provide a good reason” for the access. He testified that the matter was of grave concern given the seniority of the account holder and the requirements of the Data Protection Act, and that it was thereafter referred to the Human Resources Department for disciplinary action. 16. RW2, John Nyamaiko, testified that the Claimant was suspended by the letter of 18th April 2024 “to provide the investigation team an opportunity to establish the truth,” that the investigations team subsequently returned a verdict implicating the Claimant, that a fair hearing was thereafter held before a Disciplinary Committee comprised of senior officers of the Bank, and that upon consideration of the investigations and the Claimant's response, the Committee found him guilty of gross misconduct warranting summary dismissal, culminating in the letter of 20th May 2024. 17. It was, however, under cross-examination that both witnesses made concessions of considerable consequence to the fairness of the process, which I set out in full and analyse in detail later in this judgment. In brief, RW1 conceded that: the investigation report was never shared with the Claimant and was never filed in court; persons other than the Claimant also accessed the subject account on the material day, without similar consequence to them; the names of the alleged “strangers” were never established or disclosed; the statement of the complainant customer was neither incorporated into any investigation report nor placed in evidence before this court; and that Zadock, the relationship manager whose instructions the Claimant said had prompted his research, was never interviewed in the course of the investigations. 18. RW2, for his part, insisted under cross-examination that only the Claimant had accessed the subject account on the material day — a position squarely at odds with RW1's concession that other persons had also done so. RW2 further conceded that, notwithstanding the Human Resources policy requiring the issuance of a show cause letter and the affording of adequate time to an employee to prepare a defence, none was issued to the Claimant because, in his words, “the matter was sensitive.” He confirmed that Zadock, whom he himself described as “a vital witness,” never testified at the disciplinary hearing, and confirmed further that the Respondent placed no leave records before the Disciplinary Committee or before this court to controvert the Claimant's assertion of 84 days of accrued and unutilised leave. # **C. THE PARTIES' SUBMISSIONS** ## ***(i) The Claimant's Submissions*** 19. Learned Counsel for the Claimant, M/S Opolo & Opolo Associates Advocates, framed three issues for determination: whether there was a valid reason to warrant the Claimant's termination; whether due process was followed prior to termination; and whether the Claimant is entitled to the reliefs sought. 20. On the first issue, Counsel submitted, relying on section 43 of the Employment Act and the Court of Appeal decision in **Kenya Commercial Bank Limited v Thomas Nyangi Mwita [2019] eKLR**, that the burden lies on the employer to justify the reason for termination, and that the Respondent had not discharged that burden. It was submitted that the Claimant gave a plausible, uncontroverted explanation for accessing the account, corroborated by reference to Zadock and to the Isuzu and Rentworks correspondence, none of which the Respondent bothered to verify by so much as taking a statement from Zadock; that the identity of the alleged “strangers” and of the complainant customer were never disclosed, and that no witness statement was ever filed by the complainant; and that RW1 had conceded that other persons accessed the same account on the material day without consequence, undermining the claim that the Claimant was singled out for any objectively valid reason. 21. On the second issue, Counsel submitted, citing section 45(2)(c) of the Employment Act and the Court of Appeal decision in **Naima Khamis v Oxford University Press (E.A) [2017] eKLR**, that a termination must satisfy both the substantive and the procedural test, and that the Claimant was never issued with a show cause letter as required by section 41 of the Act, but only a combined suspension and hearing invitation letter; that no investigation report was ever furnished to him to enable a considered response; and that, relying on **Akala v Kenya Commercial Bank Limited [2025] eKLR**, an employer is under an obligation to furnish an employee with the full investigation report, not excerpts, well in advance of a disciplinary hearing, failing which the process is rendered unfair. It was further submitted that the Respondent's own suspension letter, inviting the Claimant to a hearing before any investigation could plausibly have been concluded, betrayed a predetermined resolve to terminate him. 22. On the third issue, Counsel submitted that the Claimant is entitled to one month's salary in lieu of notice; to payment for the 84 days of accrued leave, RW2 having confirmed that no leave records were filed to counter the claim; and to the maximum compensation of twelve months' gross salary permissible under section 49(1)(c) of the Employment Act, having regard to the factors in section 49(4), including the circumstances of the termination and the Claimant's length of service. ## ***(ii) The Respondent's Submissions*** 23. Learned Counsel for the Respondent, M/S Wangira Okoba & Company Advocates, framed two issues: whether the termination was unfair and/or unlawful, and whether the Claimant is entitled to any accrued wages, notice pay, leave pay, compensation, or other relief. 24. On substantive fairness, it was submitted that the Claimant's unauthorised access to a sensitive customer account, unconnected to any assigned duty, amounted to wilful neglect of duty and conduct prejudicial to the Respondent within the meaning of section 44(4)(c) and (g) of the Employment Act, that trust and confidence are the cornerstone of the employment relationship as held in **Walter Ogal Anuro v Teachers Service Commission [2013] eKLR**, and that proof of misconduct in this forum need only meet the balance of probabilities, as held in **Miringu v Family Bank Limited (2025) eKLR.** Reliance was also placed on **Njuki v Bank of Africa Kenya Limited (2025) eKLR** for the proposition that mere exposure of a bank to risk, without proof of actual loss, suffices to justify summary dismissal in the banking sector. 25. On procedural fairness, Counsel submitted that the Respondent had fully complied with section 41 of the Act by way of the letter of 18th April 2024 setting out the allegations, the invitation to a disciplinary hearing at which the Claimant could be represented and call witnesses, and the provision of the investigation report in advance of the hearing; and that this satisfied the standard articulated in **Kenya Union of Commercial Food and Allied Workers v Meru North Farmers Sacco Limited [2013] eKLR** and **Mary Chemweno Kiptui v Kenya Pipeline Company Limited [2014] eKLR.** Reliance was placed on **Wambui v Standard Chartered Bank of Kenya Limited (2025) KEELRC 1495** for the proposition that a summary dismissal for breach of a bank's confidentiality policies is lawful where the procedural requirements of section 41 are met. 26. On relief, it was submitted that the Claimant is disentitled to notice pay by virtue of a lawful summary dismissal; that compensation under section 49(1) is discretionary and unwarranted where a valid reason and fair procedure are established; that the claim for 84 days' leave is bare and unsubstantiated, the burden being on the Claimant under section 107 of the Evidence Act, and that, per **Radar Limited v Ali & Another (2024) KEELRC 1421**, a mere assertion of accumulated leave without documentary proof is insufficient; and that the Claimant is entitled only to a certificate of service under section 51 of the Employment Act, available for collection. # **D. ISSUES FOR DETERMINATION** 27. Having considered the pleadings, the evidence on record, and the rival submissions, the following issues arise for determination: (a) Whether the Respondent has proved, on a balance of probabilities, a valid and fair reason for the summary dismissal of the Claimant; (b) Whether the process leading to the Claimant's dismissal complied with the procedural fairness requirements of sections 41 and 45(2)(c) of the Employment Act, 2007; (c) Whether, in consequence, the Claimant's termination was unfair within the meaning of section 45 of the Employment Act, 2007; and (d) What reliefs, if any, the Claimant is entitled to. # **E. ANALYSIS AND DETERMINATION** ## ***(i) Whether there was a valid and fair reason for termination — Substantive Fairness*** 28. Section 43(1) of the Employment Act, 2007 places on an employer the burden of proving the reason or reasons for termination of an employee's contract, failing which the termination is deemed unfair under section 45. By section 47(5), while the burden of proving that an unfair termination has occurred rests on the employee, the burden of justifying the grounds for that termination rests squarely on the employer, as was reaffirmed by the Court of Appeal in **Kenya Commercial Bank Limited v Thomas Nyangi Mwita [2019] eKLR**. 29. It is not in dispute that the Claimant accessed the subject account on 23rd March 2024. What is in dispute is whether that singular act of access, in the circumstances proved, amounted to gross misconduct within section 44(4) of the Act, such as to justify summary dismissal, and whether the Respondent proved this on a balance of probabilities. 30. I find the Claimant's explanation for accessing the account — that he was conducting preliminary due diligence on Coast Bottlers Limited in anticipation of a prospective vehicle financing or leasing facility, at the instance of the relationship manager Zadock — to be both detailed and plausible. It is, moreover, consistent with the description of his duties as a credit analyst, which included evaluating the risk profile of borrowers and, in the ordinary course of such analysis, ascertaining transfers and relationships between a corporate borrower and its directors. Significantly, this explanation was never seriously dislodged. Zadock, the one person capable of independently confirming or denying the Claimant's account, was neither interviewed during the investigations, on RW1's own admission, nor called to testify at the disciplinary hearing or before this court, notwithstanding RW2's own characterisation of him as “a vital witness.” It is a well-established evidentiary principle that where a party fails, without explanation, to call a witness peculiarly placed to speak to a fact material to the dispute, and particularly a witness within that party's own employ and control, an adverse inference may properly be drawn against that party on the point in issue. I draw such an inference here, against the Respondent, on the question whether the Claimant's account of Zadock's role was true. 31. Nor did the Respondent's own investigation, such as it was, go much beyond retrieving the Finacle access logs. RW1 candidly conceded, under cross-examination, that the identities of the alleged “strangers” who purportedly called the customer were never established; that the complainant customer's own statement was neither incorporated into any investigation report nor placed in evidence before this court; and, most tellingly, that persons other than the Claimant also accessed the very same account on the material day, without similar consequence to them. If unauthorised access to the account was, without more, the gravamen of the charge, it is telling that the Respondent made no attempt to investigate or discipline those other persons. The explanation offered — that the Claimant, unlike the others, “had no reason” to access the account — is difficult to reconcile with the detailed, work-related reason the Claimant in fact gave, and which stood unrebutted. The resulting impression is that the Respondent proceeded on an assumption of guilt rather than on any causal link, established on the evidence, between the Claimant's access and the harm the customer reported. 32. On this state of the evidence, there is nothing beyond suspicion connecting the Claimant to the disclosure of the customer's private details to any third party. No caller was identified, no telephone or KYC record tracing a call back to the Claimant was produced, and the customer herself did not testify. The charge that stood proved, at its highest, is that the Claimant accessed the personal account of a senior colleague's family member without an express written assignment to do so — a fact which, standing alone, and in the face of a plausible and substantially unrebutted explanation, falls well short of proof, on a balance of probabilities, of the wilful neglect of duty or the conduct prejudicial to the employer's interests contemplated by section 44(4)(c) and (g) of the Act. 33. I accordingly find that the Respondent did not discharge the burden placed on it by sections 43(1) and 47(5) of the Employment Act, 2007, of proving a valid and fair reason for the Claimant's summary dismissal. The termination was, on this ground alone, substantively unfair. ## ***(ii) Whether the process met the threshold of Procedural Fairness*** 34. Section 41 of the Employment Act obliges an employer, before terminating the employment of an employee on grounds of misconduct, to explain to the employee, in a language he understands, the reason for which the employer is considering termination, and to hear and consider any representations the employee may make, including through a representative of his choice. Section 45(2)(c) renders a termination unfair where the employer fails to prove that it was effected in accordance with fair procedure. Several distinct failings, each significant and cumulatively decisive, emerge from the evidence. 35. First, on the question of the show cause letter. RW2 confirmed under cross-examination that, notwithstanding a Human Resources policy requiring the issuance of a show cause letter and the affording of adequate time and opportunity for an employee to prepare and mount a defence, none was issued to the Claimant — his explanation being that “the matter was sensitive.” I find this explanation to be untenable, and indeed self-defeating. The sensitivity of an allegation, if anything, calls for more scrupulous observance of an employee's procedural entitlements, not their suspension. An employer cannot be heard to invoke the gravity of the allegations it has itself levelled as a licence to dispense with the very safeguards designed to protect an employee from being condemned unheard on grave charges. Applied, as it was, to this Claimant alone, and absent any suggestion that the policy is routinely dispensed with in “sensitive” matters generally, this departure bears the hallmarks of an arbitrary and selective application of the Respondent's own internal policy — precisely the kind of inconsistency that the law of fair labour practices exists to guard against. 36. Second, on the sequencing of the process. The letter of 18th April 2024 simultaneously suspended the Claimant “to pave way for investigations,” in RW2's words, and fixed a disciplinary hearing for six days later, on 24th April 2024. It is difficult to reconcile an investigation whose stated purpose was still to “establish the truth” with a hearing date fixed in the very same instrument, before that investigation could plausibly have run its course. The strong impression created, and one properly open on this evidence, is that the disciplinary process, and its ultimate outcome, had been substantially settled upon before the Claimant was ever afforded an opportunity to be heard. Such an approach offends the audi alteram partem principle embedded in section 41 of the Act, and imports a real risk, if not the appearance, of a predetermined result. 37. Third, on disclosure of the investigation report. The Respondent's pleaded case and written submissions assert that the Claimant “was provided with a copy of the investigation report in advance of the hearing.” That assertion is squarely contradicted, first, by RW1's own concession under cross-examination that the report was never shared with the Claimant and was never filed in this court; and, second, by the Respondent's own summary dismissal letter of 20th May 2024, which recites that the adverse findings were made “based on the investigation report during the Hearing Session” — language which, at its highest, indicates that whatever document existed was considered at the hearing itself, not furnished to the Claimant in advance of it for his study and response. Nor did the Respondent produce before this court any investigation report properly so called. What was exhibited, styled “Minutes of a Disciplinary Hearing,” contains only the barest one-paragraph “Investigation” summary, bereft of any record of interviews conducted, any account of who else accessed the subject account and why they were not implicated, or any reference whatsoever to the Isuzu and Rentworks correspondence the Claimant says he caused to be forwarded to the panel. As was held in **Akala v Kenya Commercial Bank Limited [2025] eKLR**, an employer is under a legal obligation to furnish an employee with the full investigation report, not mere excerpts, well in advance of any disciplinary hearing; selective, partial, or belated disclosure undermines the fairness of the process. The Respondent's conduct fell well short of that standard. 38. Fourth, on the material contradiction between the Respondent's own witnesses. RW1 conceded, under cross-examination, that persons other than the Claimant accessed the subject account on 23rd March 2024. RW2, addressing the very same fact, insisted that only the Claimant had done so. This is not a trivial discrepancy of recollection; it goes to the heart of whether the Claimant was singled out for reasons untethered to any objectively established wrongdoing peculiar to him. A disciplinary process, and the evidence later tendered in court to justify it, ought to speak with one voice on so fundamental a fact. The Respondent's own witnesses gravely undermines the reliability of its case and, with it, the fairness of the process by which the Claimant was condemned. 39. Fifth, on the exclusion of a vital witness. Both RW1, at the investigation stage, and RW2, in his own assessment, confirmed that Zadock — whom RW2 himself styled “a vital witness” — was neither interviewed during the investigations nor called to testify at the disciplinary hearing, notwithstanding that his account was central to testing the veracity of the Claimant's defence. An investigation and a hearing which studiously avoid the one witness capable of independently corroborating or demolishing an employee's explanation cannot be said to have been conducted with the even-handedness section 41 demands. 40. Sixth, on the completeness of the record. The minutes of the disciplinary hearing exhibited by the Respondent record only that the Claimant attributed his access to “curiosity” and a “quest for research,” and make no mention whatsoever of his detailed account implicating Zadock, or of the Isuzu and Rentworks correspondence he says he caused to be forwarded to the panel by email. A record of proceedings that omits an employee's central line of defence — whether by oversight or design — cannot found a fair or defensible disciplinary outcome. It deprives both the employee, and ultimately this court, of any means of testing whether that defence was genuinely considered and, if it was rejected, on what basis. 41. Seventh, on the quality of the evidence relied upon. The entire narrative of the customer being contacted by unnamed “strangers” bearing sensitive account information rests on an unproduced customer statement and on unidentified callers. Neither the customer nor any of the alleged callers testified before the Disciplinary Committee or before this court, and RW1 confirmed that the customer's own statement was never placed in evidence. A sanction as grave as summary dismissal cannot safely be anchored on assertions of this order, untested by cross-examination and unsupported by any primary evidence. 42. Taken cumulatively, I am satisfied that the process leading to the Claimant's summary dismissal fell well short of the procedural fairness mandated by section 41 as read with section 45(2)(c) of the Employment Act, 2007. As the Court of Appeal restated in **Naima Khamis v Oxford University Press (E.A) Limited [2017] eKLR**, a termination is fair only where both the substantive and the procedural limbs are satisfied; a default on either is fatal to the employer's defence. The point finds a telling parallel in **Judiciary & another v LMN (Petition E040 of 2024) [2025] KESC 53 (KLR)**, in which the Supreme Court, considering the summary disciplining of a Senior Principal Magistrate on truncated, same-day notice in place of the fourteen days her own institution's rules required, ordered her reinstatement with full back pay, holding, in essence, that not even the gravity of an allegation licenses an employer, however eminent, to cut corners on the process the law and its own internal rules prescribe. The parallel to the present case — in which an established, regulated financial institution invoked the sensitivity of the allegations as a reason to bypass its own show cause requirement — is instructive and, in my view, dispositive of the procedural fairness question against the Respondent. ## ***(iii) The Reasonable Employer Test and Proportionality of the Sanction*** 43. Even if I am wrong, and the evidence is taken at its very highest against the Claimant, the further question that arises is whether summary dismissal was, in any event, a proportionate response. The Court of Appeal, in **Kenya Airways Ltd v Aviation & Allied Workers Union Kenya & 3 others [2014] eKLR**, emphasised that an employer's decision must be assessed against what a reasonable employer, applying its mind fairly to the material before it, would have done; it is not for a court to substitute its own judgment for that of the employer, but the employer's own process and conclusions must nonetheless be shown to be those of a reasonable employer acting on adequate material. 44. A similarly instructive, if persuasive rather than binding, formulation is found in the jurisprudence of the Supreme Court of Canada. In **McKinley v British Columbia Telephone Co. [2001] 2 SCR 161, 2001 SCC 38**, that court held that summary dismissal for cause requires a contextual inquiry into whether the nature and degree of the employee's alleged misconduct was sufficiently serious to strike at the heart of the employment relationship, warranting its immediate termination, or whether a lesser sanction would have sufficed; the court must weigh the proportionality of the response against the gravity of the proven conduct, rather than applying a rigid, categorical rule. Applying that contextual, proportionality-based lens to the present case, I find that an employee whose explanation for a single, isolated instance of account access remained substantially unrebutted, who was never shown to have transmitted any information to any identified third party, and whose stated function as a credit analyst was not inherently inconsistent with the access in question, ought reasonably to have attracted, at most, a lesser or provisional sanction pending a properly conducted and complete investigation — not an outright summary dismissal secured through a process infected by the failings set out above. 45. For all the foregoing reasons, I find and hold that the Claimant's termination from employment was unfair, both substantively and procedurally, within the meaning of section 45 of the Employment Act, 2007. # **F. RELIEFS** 46. Having found the termination unfair, I turn to the reliefs to which the Claimant is entitled. ## ***(a) One month's salary in lieu of notice*** 47. Given my finding that the summary dismissal was not justified, the Claimant was entitled to notice, or payment in lieu thereof, before termination. I award one month's gross salary in lieu of notice, being Kshs.105,688/=. ## ***(b) The 84 days' accrued and untaken leave*** 48. Section 74 of the Employment Act places upon an employer the duty to maintain records pertaining, among other things, to leave granted to its employees. Where an employee asserts accrued and untaken leave and is not shaken on the point in cross-examination, and the employer, who alone is placed to maintain and produce leave records, fails to produce any such records to rebut the assertion, the evidential scale tips in the employee's favour. RW2 confirmed, in terms, that no leave records were placed before the Disciplinary Committee or before this court to counter the Claimant's claim of 84 days' accrued and unutilised leave. On this unchallenged evidentiary landscape, I find that the Claimant is entitled to payment for the 84 days of accrued and untaken leave, computed, on the agreed daily equivalent of his gross salary, at Kshs.295,926/=. ## ***(c) Compensation for unfair termination under section 49(1)(c)*** 49. Section 49(1)(c) of the Employment Act empowers this court to award compensation not exceeding the equivalent of twelve months' gross salary, having regard, under section 49(4), to factors that include the practicability of reinstatement, the employee's length of service, the circumstances in which the termination took place, the extent, if any, to which the employee caused or contributed to the termination, and the opportunities available to the employee for securing comparable employment. 50. The procedural default established against the Respondent in this case was neither trivial nor isolated: a complete failure to issue a show cause letter as its own policy required, a disciplinary hearing date fixed before any investigation could have concluded, non-disclosure of any complete investigation report, the studied exclusion of a witness the Respondent's own officer conceded to be vital, a hearing record silent on the Claimant's central defence, and a material, unexplained contradiction between the Respondent's own witnesses on a fact central to the charge. This considerably exceeds the character of the default that the Court of Appeal had before it in **Kenya Commercial Bank Limited v Thomas Nyangi Mwita [2019] eKLR**, where a compensation award was moderated to four months' salary specifically because the finding of unfairness there rested on a failure of process alone, in circumstances where the employee's own irregular conduct was clearly established on the evidence. 51. Mindful that the object of section 49 is to compensate fairly for the unfairness established, and not to penalise an employer beyond what the justice of the case demands, nor to under-compensate an employee subjected to as comprehensive a procedural failure as was proved here — I am satisfied that an award of the statutory maximum would not, on this record, be warranted, but that an award substantially higher than that considered adequate in Nyangi Mwita is called for, given the markedly greater scale of the procedural default and lack of substantive fairness established in this case. I accordingly assess fair compensation for the unfair termination at the equivalent of seven (7) months' gross salary, being Kshs.739,816/=. ## ***(d) Certificate of service*** 52. The Claimant is, and the Respondent itself concedes he is, entitled to a certificate of service under section 51 of the Employment Act, 2007. I direct that the Respondent issue the same to the Claimant within fourteen (14) days of this judgment. ## ***(f) Interest and costs*** 53. The Claimant shall have interest on the sums awarded in (a), (b), and (c) above at court rates, from the date of this judgment until payment in full. The Claimant, having substantially succeeded, shall also have the costs of this suit. # **G. DISPOSITION** 54. For the reasons set out above, I make the following final orders: **(a)** A declaration is hereby issued that the termination of the Claimant's employment by the Respondent on 20th May 2024 was unfair, both substantively and procedurally, contrary to sections 41, 43 and 45 of the Employment Act, 2007. **(b)** The Respondent shall pay the Claimant one (1) month's gross salary in lieu of notice, being Kshs.105,688/=. **(c)** The Respondent shall pay the Claimant for 84 days of accrued and untaken leave, being Kshs.295,926/=. **(d)** The Respondent shall pay the Claimant compensation for unfair termination equivalent to seven (7) months' gross salary, being Kshs.739,816/=. **(e)** The sums in orders (b), (c) and (d) above total Kshs.1,141,430/=, which sum the Respondent shall pay to the Claimant. **(f)** The Respondent shall issue the Claimant with a certificate of service within fourteen (14) days of this judgment. **(g)** The Claimant shall have interest on the sums in orders (b), (c) and (d) above at court rates, from the date of this judgment until payment in full. **(h)** The Claimant shall have the costs of this suit. Dated, signed and delivered at Mombasa, this 16th day of July, 2026. **OCHARO KEBIRA** **JUDGE**