https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1897

Motari v Kenya Institute of Management & another (Cause E399 of 2020) [2026] KEELRC 1897 (KLR) (2 July 2026) (Judgment) Neutral citation: [2026] KEELRC 1897 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nairobi Cause E399 of 2020 NJ Abuodha, J July 2, 2026 Between Aaron Nyanaro Motari Claimant and Kenya Institute Of Management 1st Respondent Collins Obuogo 2nd Respondent Judgment 1.The Claimant through his Memorandum of Claim dated 17th August, 2020 pleaded inter alia as follows: -a.That he was employed by the Respondent on the 3rd July, 2018 as an ICT Manager on permanent and pensionable terms until the 25th November, 2019 when the 1st Respondent wrongfully and unlawfully terminated his employment. That at the time of his termination he was earning a basic salary of Kshs 130,000/=.b.That during his employment he performed his duties diligently, faithfully and industriously as assigned to him by the 1st Respondent. That on 28th August, 2019 while executing his duties from his place of work he was arrested and degradingly whisked away by police from Kileleshwa police station working on th behest of the 1st and 2nd Respondent.c.That the manner in which the arrest was done it degraded, ridiculed and embarrassed him in the presence of the 1st Respondent’s entire staff. That it was upon his booking at Kileleshwa police station that he noted that the 2nd Respondent had lodged a complaint against him alleging that he had through an email titled “Two Faced Snake Of Kim” and sent to the 2nd Respondent on the 23rd July, 2019 threatened to kill or cause grievous harm to the 2nd Respondent.d.That he was released on police bond and reported back to his employment with the 1st Respondent as he awaited the police to conclude their investigations and prefer charges if any. However, he was unable to execute his duties as his computer/laptop had been confiscated by the police on the day of his arrest while the 1st Respondent failed to supply him with another computer.e.That on 18th October, 2019 he was served with a show cause letter requiring him to show cause why disciplinary actions should not be taken against him for insulting and threatening the 2nd Respondent. That in the show cause letter the 1st Respondent claimed that although the threatening email was sent from an anonymous account, reports from Safaricom and Communication Authority of Kenya had confirmed that the email had been sent from the Claimant’s Mobile phone and from his registered SIM Card Line and that the Claimant’s Identity Card Number and known Mobile Phone number appeared on the two reports from Safaricom and Communication Authority of Kenya.f.That on 24th October, 2019 he wrote to the Respondent requesting for documents/ materials that the 1st Respondent had used to come up with the charges entailed in the show cause letter and specifically requested for the Complaint made by the 2nd Respondent, the reports from both Safaricom and Communication Authority of Kenya and the threatening email.g.That on 25th October, 2019 the 1st Respondent through its letter of the even date only supplied him the 2nd Respondent’s complaint to the 1st Respondent’s CEO, the threatening email, the 1st Respondent’s Disciplinary Procedure Code and an alleged charge sheet against the Claimant.h.That the 1st Respondent failed to supply the Claimant with the two reports by Safaricom and Communication Authority of Kenya therefore admitting that the two reports referred to did not exist. That the charge sheet provided by the 1st Respondent was different from the one used to charge him in court meaning that the charge sheet supplied by the 1st Respondent was a forgery.i.That he made his response on 11th November, 2019 in which he decried lack of the two most crucial materials reports from Safaricom and Communication Authority of Kenya) and his incapacity to make a comprehensive report as the failure by the 1st Respondent to serve him with all documents and materials meant that he had been denied a fair hearing as per rules of natural justice.j.That he was not the author of the threatening email as the Contents in the alleged email absolves him fully as the author insinuates that the 2nd Respondent came to interfere with peace at the 1st Respondent yet the said 2nd Respondent was employed earlier than him.k.That the show cause letter by the 1st Respondent relies on police investigations and an ongoing criminal case which violates clause 11.5.3 of its own Disciplinary Procedure which requires it to carry out independent investigations.l.That sometime in October while awaiting the disciplinary process the 1st Respondent’s security Manager Mr. Said Nguta Nyamawi brought to him the computer which had been confiscated by the police. That for the 1st Respondent to be given a computer which had been confiscated by police shows there was collision between the police and the Complainant the 2nd Respondent.m.That he was invited to a disciplinary hearing held on 15th November, 2019 after which a decision was made to summarily dismiss him from employment on 25th November, 2019. That the termination notice was sent to him while he had proceeded to his annual leave days and that he received the letter on 28th November, 2019 after which he tried to lodge an appeal against the decision but the 1st Respondent denied him the chance to appeal alleging that the appeal was made out of time.n.That from the circumstantial evidence given it was clear that the Respondents had ill intentions/malice against him and that they were hell bent to make sure that his employment was terminated without any substantive reason.o.The Claimant listed the particulars of malice on the part of the Respondents which demonstrated that the Respondents had an improper frame of mind fixed at nothing but termination of his employment. That since the publication and circulation of the false information he has been unable to secure any employment. He itemized the particulars of defamation.p.That he was not paid his house allowance or provided with accommodation in the alternative during his employment. 2.The Claimant in the upshot prayed for the following against the Respondents: -a.House allowance Kshs 331,500/=b.Notice pay Kshs 149,500/=c.Compensation for unlawful termination of employment Kshs 1,794,000/=d.Damages for defamation Kshs 7,000,000/=e.A permanent injunction against the 1st and 2nd Respondent from continuing to defame the Claimant.f.Certificate of service. 3.The Respondents filed their reply to memorandum of claim dated 20th February, 2023 and averred inter alia as follows: -i.That the Claimant was lawfully terminated from employment where he was employed as an ICT Manager but denied the terms of reference.ii.That he was served with a show cause letter to show cause why disciplinary action should not be taken against him for several issues against the 1st Respondent’s employees code of conduct. That they followed the due disciplinary processes as per the 1st Respondent’s Human Resource Policy.iii.That a charge sheet is a document made by the prosecution and not by the 1st Respondent and the charge sheet provided to the Claimant originated from the relevant authorities. That the fact that the Claimant had active criminal record worth of being prosecuted after thorough investigations was one of the reasons for his termination.iv.That police investigations are authoritative and clothed with resources to produce best results that are authentic and therefore the 1st Respondent was justified in relying on the authorities. That the Claimant’s criminal record before the police could only be responded by the authorities and had nothing to do with the Respondents.v.That the Claimant raised his appeal as an afterthought as the 1st Respondent had already advertised for the Claimant’s position.vi.That the issue of defamation was not an issue to be canvassed at the employment and labour court which allegations the Respondents denied and the claims were an afterthought and far-fetched. That the Claimant’s failure to get employment has nothing to do with them.vii.That the 2nd Respondent was a mere victim of the actions of the Claimant.viii.That they have never been served with demand letter by the Claimant.ix.The Respondents prayed that the Claimant’s claim be dismissed with costs. Evidence 4.Both the Claimants’ and Respondent’s case was heard on 30th July,2025 where the Claimant herein (CW1) testified for the Claimant’s case. He adopted his witness statement written on 17th August, 2020, his documents filed and supplementary list of documents filed as his evidence in chief and further stated that he sought his prayers in his statement of claim. He denied ever issuing any threats to his colleague and that he was arrested and prosecuted but he was discharged of the offences. 5.He stated that he was issued with Notice to show cause where he responded and he asked for the documents the Respondent was relying on. That the documents were never supplied to him hence there was no basis for his termination. 6.In cross-examination by the 1st Respondent counsel, he confirmed that his salary was Kshs 130,000/=. That he was arrested on 28/8/2019 and he was not sure why he was arrested. That there were allegations that he had threatened a colleague the 2nd Respondent. He confirmed that it was the 2nd Respondent who lodged the complaint to both the 1st Respondent and the police. That he learnt of the complaint when he received notice to show cause. That his work laptop and phone were confiscated by Investigating Officer when he got arrested and that the laptop was for the employer but the phone was personal. That he was issued with the show cause on 18/10/2019 two months after his arrest although there were no timelines for issuing a show cause when one had a vendetta. 7.He confirmed he requested for documents but only received the complaint by the 2nd Respondent. He never received response on request on Safaricom data. The reason for not providing was stated in the response. That he received the email containing the alleged threat from the 1st Respondent. The Claimant alleged that the charge sheet was forged. That he received the 1st Respondent’s code of conduct and discipline procedure. That he was invited to the disciplinary hearing and appeared before the committee on 1/11/2019. That by then he had not responded to the show cause. 8.The Claimant confirmed that he attended the meeting and clarified why he had not responded and the meeting adjourned and allowed him to respond. That the second hearing was on 15/11/2019. That he chose not to have a representative and that he had been informed he could have one. He confirmed that he received the termination letter which had the reasons for termination. That it quoted schedule 11.5.2 of the HR Manual and section 25 of the Employment. That he appealed the dismissal on 4/12/2019 and further that he was on paternity leave when the letter was sent and that it was sent via email and he responded immediately. That he received the dismissal letter on 25/11/2019. 9.The Claimant confirmed that the institute provided the charge sheet and that the Respondent never conducted any investigations. That the allegation against him was a criminal offence as per clause 11.5.3 of the Human Resource Manual. 10.He stated that he claimed for house allowance because his contract did not include house allowance. That he received his certificate of service. That the termination letter alleged things he never did hence defamatory. That there was nothing verbal from the institute that was defamatory. 11.In cross-examination by the 2nd Respondent’s counsel, the Claimant stated that it was the 1st Respondent who terminated his service and that the 2nd Respondent was not a police officer although he was the one who raised the complaint against him. That the 2nd Respondent did not draft charge sheet. 12.The Claimant confirmed that the 2nd Respondent was not an HR Officer but an internal auditor and that he did not sit in the disciplinary hearing and maintained that the show cause letter was defamatory although the 2nd Respondent did not publish anything. That the 2nd Respondent manipulated the police to arrest him. 13.In re-examination the Claimant clarified that he was provided with the charge sheet when he requested and it was not difficult for the 1st Respondent to provide the documents requested as they said they have them. 14.The Respondents on the other hand called two witnesses with the first being the 1st Respondent’s Head Shared Services one Raymond Mwangi. He relied on his witness statement written on 21/6/2023 and the documents filed with their defence as his evidence in chief. 15.In cross-examination he stated that he was in charge of support which included HR- department. That he did not sit in the disciplinary hearing of this case because he was employed in May, 2021 when the Claimant had already left. That he had records about the Claimant. He further stated that he was not aware if employees were entitled to house allowance because the salary paid was consolidated. That the version of the contract he had was not clear. That the Claimant requested for documents and they provided the charge sheet and did not provide the other documents. That the Claimant was advised to obtain them from the local authorities. He confirmed that he was not there so he did not know why it was difficult to provide the other documents. That the reasons for dismissal as per dismissal letter were investigated by the police the respondent did not conduct internal investigations. That there were disciplinary minutes filed in court and the Claimant did not sign the minutes. 16.In re-examination he clarified that someone else could hold his office and there was someone else in his slot during the disciplinary hearing and that the 1st Respondent does not conduct criminal investigations. He stated that allegations against the Claimant were reasons for his dismissal and that gross salary was inclusive of housing allowance. 17.The 2nd Respondent testified as the second witness where he adopted his witness statement written on 18/3/2025 and the documents filed in the defence as his evidence in chief. 18.The 2nd Respondent stated that he was an employee of the 1st Respondent in 2019 and was in internal audit and he played no role in hiring the Claimant. That he did not participate in the disciplinary hearing. That on 23rd July, 2019 he received an email titled “TWO FACED SNAKE OF KIM”. That the email showed displeasure with the work he was doing at KIM. That the email threatened to halt him, his wife and children. That the email was before the court. That he reported the email to his supervisor as well as showing him who advised him to report the issue to police. That he received a call later on from the police that the author of the email had been arrested and charged at Kibera Law Courts. 19.He confirmed that the author was the Claimant and he did not influence the arrest and charging of the Claimant. That he never published any defamatory material against the Claimant. That he had no role in the Claimant’s termination. 20.In cross-examination the 2nd Respondent stated that he was employed in March 2018 and the Claimant joined after him. That he left the 1st Respondent in April 2022 when he resigned. That his relationship with the Claimant was good as he carried his in-laws to the wedding and reception during his marriage and further that he could not tell which employees were not happy with his work. That they did not say who they were and he only made a complaint to the police and the Police never shared with him the findings. He was only called to give his evidence, he testified and he did not know how the case concluded. 21.He confirmed that he did not know who drafted the email and the closest he got was when the Claimant was charged. That he had a basis for his complaint because he received an email threatening him and his family. 22.In reexamination he clarified that the email scared him for it was a threat to his life and that of his family. Claimants’ Submissions 23.The Claimant’s advocates Nchogu, Omwanza & Nyasimi Advocates filed written submissions dated 24th October, 2025 and on the issue of whether the Claimant was wrongfully, unfairly and unlawfully terminated counsel submitted that the termination was unfair and unlawful for want of both substantive justification and procedural fairness as he was neither issued with a valid reason for the termination nor subjected to a disciplinary process. Reliance was placed on the case of Yego v Kenya Post Office Savings Bank (Cause E500 of 2020(2025) eKLR on ingredients of fair termination above. 24.On substantive justification counsel submitted that the termination was not based on valid and justifiable reasons as per section 43 of the Employment Act. That despite the 1st Respondent summarily dismissing the claimant on 25th November, 2019 due to allegations levelled against him by the 2nd Respondent of writing him an email titled “TWO FACED SNAKE OF KIM” no internal investigations were conducted as required by the Disciplinary Procedure Code. 25.Counsel submitted that the 1st Respondent relied on police investigations whose criminal case the claimant was acquitted for lack of prima facie case as per section 210 of the Criminal Procedure Code. Further the 1st Respondent never availed the reports from the Safaricom and the Communication Authority of Kenya to the Claimant to prove the reason of termination. 26.On the procedural fairness counsel submitted that having proved that the reason for termination was unfair the termination was unfair and proving the procedural fairness was immaterial. Counsel relied on section 41 of the Act on procedural fairness and the case of Postal Corporation of Kenya v K Tanui(2019) eKLR on the four elements for the procedure to pass fairness test. 27.Counsel submitted that fair procedure was not followed in the summary dismissal of the Claimant based on the three grounds that internal investigations were never conducted, Claimant was not furnished with reports from Safaricom and Communication Authority of Kenya and the Claimant was denied the right of appeal. 28.On the failure to conduct internal investigations counsel relied on the case of George Musamali v G4S Security Services Kenya Ltd (2016) eKLR and the 1st Respondent’s Disciplinary Procedure Code at clause 11. 1(i) and clause 11.5.3 on the requirements for internal investigations. That the 1st Respondent was obligated to conduct internal investigations independent of police investigations which they confirmed during hearing that they did not. 29.On the failure to furnish the Claimant with the necessary documents counsel relied on the case of Rebecca Ann Maina & 2 others v Jomo Kenyatta University of Agriculture and Technology (2014) KEELRC 793(KLR) on the need to supply documents to employee to prepare their defence. That the 1st Respondent issued a show cause letter citing the Safaricom and Communication Authority of Kenya reports which implicated the Claimant to have sent the threatening email to the 2nd Respondent. The 1st Respondent never availed the reports to Claimant to allow him mount his defence. 30.That the 1st Respondent during hearing confirmed that they never supplied the Claimant with the reports and referred him to get them from local authorities whereas they possessed them and only supplied him with charge sheet from the police. 31.On the denial of the right to appeal counsel relied on section 45(5)(a) of the Act which allowed for appeals. That the letter dated 25th October, 2019 the 1st Respondent summarily dismissed the Claimant and informed him of his right to appeal within 7 days in writing. That the Claimant through email of 2nd December, 2019 requested for an appeal hearing which was denied by the 1st Respondent stating that the request was time barred. 32.Counsel relied on section 57(a) of the Interpretation and General Provisions Act to submitted that the Claimant was still within the timelines to appeal since he received the letter in 25th November, 2019 the 25th was excluded from the 7 days to appeal hence within time. 33.On the issue of whether the Claimant was entitled to the reliefs sought counsel submitted that the Claimant was entitled to compensation for unfair termination as claimed as his termination was unfair and unlawful as per section 49(1)(C) of the Act. That he was entitled to notice pay as per section 36 of the Act. 34.Counsel submitted that the Claimant was entitled to house allowance as per section 31 of the Act as the same was not paid to him as stipulated by the law. That the employment contract provided for a monthly salary further reference to a consolidated amount. That the payslip showed the basic and gross salary was Kshs 130,000/ hence there was no housing allowance. Counsel relied on among anothers, the case of Professional Clean Care Limited v Danson Mwendwa Muthoka(2021) eKLR on this assertion. 35.On damages for defamation counsel relied on the case of Musikari Kombo v Royal Media Services Limited (2018) eKLR on proof of defamation and contended the Respondents published information that the Claimant had threatened to kill the 2nd Respondent knowing the information to be false while relying on reports which were false and the email allegedly authored by the Claimant also false and spread within his workplace and beyond his colleagues started fearing him, he would receive phone calls regarding the threats, he was terminated on the said threats and he was unable to secure future employment. 36.On the claim for permanent injunctions to the Respondents from continuing defamation counsel relied on the case of Nguruman Limited versus Jan Bonde Nielsen 2 others (2012) eKLR where the court echoed the principles on grant of injunctions as set out in Giella v Cassman Brown& Co Ltd (1093) EA 358. That having proved defamation a prima facie case has been established and the injunctions should be granted so that the Claimant does not suffer further harm. 37.Counsel submitted that the 1st Respondent should issue certificate of service to the Claimant as per section 51 of the Act. 1St Respondent’s Submissions 38.The 1st Respondent’s Advocates Gwandaru & Associates Advocates filed written submissions dated 26th January, 2026 and on the issue of whether the 1st Respondent was justified to rely on the internal and external investigations in its decision to terminate the Claimant, counsel submitted that the Claimant was terminated by the 1st Respondent after the due disciplinary process. Counsel relied on section 44 of the Act on employer’s right to summarily dismiss an employee who commits gross misconduct. Counsel further relied on section 43 of the Act, specifically section 43(2) on where the employer believes the reason to genuinely exist causes it to terminate an employee. Counsel submitted that the claimant’s act of insulting his colleague and the fact of his arrest as a consequence was tantamount to gross misconduct and he was arrested on that account at the 1st Respondent’s institution. That the Claimant based on 2nd Respondent complaint was arrested and arraigned and the law does not require an employer to await conclusion of criminal proceedings before instituting disciplinary action provided there exists a valid and reasonable basis for termination. 39.Counsel relied on among others the case of Bamburi Cement Ltd vs Farid Aboud Mohamed (2016) eKLR on criminal proceedings being distinct from internal disciplinary processes. That the disciplinary process followed the arrest of the Claimant on probable cause that constituted gross misconduct based on the policies and guidelines for the 1st Respondent. That the Claimant responded to show cause letter, attended disciplinary hearing and even attempted to appeal the decision of the tribunal to dismiss him hence the procedure followed was fair. 40.Counsel relied on section 45 of the Act on what amounts to unfair termination and submitted that the 1st Respondent in its termination letter of 25th November, 2019 outlined the reasons for termination in accordance with HR. Manual section 11.5.2 and Section 44(4)(g) of the Act. That the 1st Respondent having established through its investigations and the undeniable fact of the Claimant’s arraignment in court had all reasons to sufficiently believe that the Claimant had committed a criminal offence to the detriment of his employer. That the 1st Respondent suspected the Claimant to have committed an offence to its detriment and that was sufficient the court should not interrogate further. 41.On the issue of whether the 1st Respondent followed the due process in terminating the Claimant, Counsel submitted that the termination was carried out in adherence to due process as per the Act. That the 1st Respondent complied with section 41 of the Act on procedural fairness while relying on among others the case of Postal Corporation of Kenya v Andrew K. Tanui (2019) eKLR on due process which was that the employee was issued with show cause letter, invited to disciplinary hearing and heard the employer was deemed to have complied with fair procedure. Counsel further submitted that the Claimant was afforded the right to appeal against the decision of the disciplinary tribunal but he deliberately failed to exercise this right. 42.On the issue of defamatory information counsel submitted that the Claimant alleged that the termination letter was defamatory and that he suffered damage of reputation. However counsel disputed that and submitted that the termination letter only included the fact that charges were pressed against the Claimant and nothing more. That the 1st Respondent never defamed the Claimant during the separation nor after employment. That the Claimant never proved the elements of defamation while relying on the case of Miguna Miguna v Standard Group Limited & 4 Others (2017) eKLR. 43.It was submitted that the Claimant never illustrated any publication by the Respondents apart from claiming in general against them. That the statements made in the show cause letter and the summary dismissal were true statements relayed to the Claimant alone and they were never circulated if any circulation it must have been the Claimant. That these documents were the right channel communication between employer and employee and could not amount to defamation. 44.On the reliefs sought counsel submitted that the Claimant was not entitled to house allowance because his letter of appointment stipulated that he would be paid a gross salary of Kshs 130,000/=. That gross salary is a sum of basic salary and allowances before any deduction is made. Counsel relied on the case of Postal Corporation (Supra) on this assertion. 45.That the Claimant was not entitled to notice pay as he was summarily dismissed hence no need for termination notice. That as for certificate of service and other dues the summary dismissal letter was clear. That the Claimant needed to clear with the 1st Respondent to receive his final dues but he has never hence the claims fail. 2Nd Respondent’s Submissions 46.The 2nd Respondent’s advocates Arwa & Change LLP Advocates filed their written submissions dated 30th October,2025 and on the issue of whether the 2nd Respondent’ s act of reporting threats to his life was protected, civic duty and cannot be the proximate cause of termination of the Claimant from employment counsel submitted that the 2nd Respondent had a right and duty to report a suspected crime to authorities and the legal causation between his report and termination of Claimant’s employment was severed by independent actions of two institutions that is the National Police Service and the office of the Director of Public Prosecutions. That the 2nd Respondent ceased to have anything to do with the matter the moment he filed his complaint. 47.On the issue of whether liability for unfair termination rests solely with the 1st Respondent and not a fellow employee who was only a complainant counsel submitted that the Act places the burden of justifying termination on employer most specifically section 43, 45 and 47(5) of the Act create a legal relationship and liability only between an employer and employee. That the 2nd Respondent was not the Claimant’s employee and had no legal duty to the Claimant to secure his continued employment. 48.On the issue of whether the 2nd Respondent acted maliciously counsel submitted that the 2nd Respondent’s complaint was genuine and justified because the email threatening him was real and the Claimant failed to prove that the 2nd Respondent acted maliciously. The burden was on the Claimant which he did not discharge. 49.On the issue of whether the 2nd Respondent defamed the Claimant counsel relied on the case of Wycliffe A Swanya v Toyota East Africa Ltd and Another (2009) KECA 379 (KLR) on proof of defamation by the party alleging. That the Claimant admitted during hearing that the 2nd Respondent never published any defamatory statements hence the claim of defamation and the damages cannot succeed. 50.On the issue of whether the 2nd Respondent influenced the decision to have the Claimant terminated from employment counsel submitted that there was no evidence that the 2nd Respondent manipulated the police, influenced the ODPP, or directed the 1st Respondent to terminate the Claimant. The decision to terminate the Claimant was made by the 1st Respondent based on its own disciplinary process. That those organizations were independent offices and the 2nd Respondent could not influence their decisions. Determination 51.This court has reviewed and considered the pleadings, testimonies, submissions and authorities relied on by all parties and has I have come up with three main issues: -Aa. aa.a.WhetherWhether the Claimant’s summary dismissal was unfair and unlawful.b.Whether the Claimant was defamed by the Respondents.c.Whether the Claimant is entitled to the reliefs sought. Whether the Claimant’s summary dismissal was unfair and unlawful 52.The courts have always held that for termination to pass fairness test there should be both substantive and procedural fairness. In this regard, this court will be guided by the holding in Janet Nyandiko versus Kenya Commercial Bank Limited (2017) eKLR among others. 53.On the substantive test the employer must give a fair and valid reason as per section 43 of the Employment Act. Section 45 of the Employment is clear that where there is no valid and fair reasons such termination is unfair. Section 44 of the Employment Act ,2007 stipulates when summary dismissal can occur in particular under Section 44(4) (g) of the Employment Act, warrants summary dismissal on grounds of gross misconduct and especially in a case where one is charged with a criminal offence. 54.In this case the 2nd Respondent received email threatening his life and that of his family and showed the same to his supervisor. His supervisor advised him to report to the police. To this court the 2nd Respondent after receiving the email titled “TWO FACED SNAKE OF KIM” he was justified in reporting the same to necessary authorities like the Police in case the author of the email took another action. It is also clear the email was sent by anonymous user and evidence had to be linked to the Claimant. He was all the same arrested, his laptop and phone confiscated, he was arraigned in court and charged but was acquitted under section 210 which meant the trial court became of the view that the prosecution had not established a case against the claimant to the required standards that would necessitate putting him on his defence. 55.The Court has perused the ruling by the Chief Magistrate’s Court that acquitted the claimant under section 210 of the CPC and noted that PW2, Sergent Samuel Meshani stated that on receiving the complaint by the 2nd respondent, the referred the issue to Communication Authority of Kenya and Safaricom and that the response was received that IP address was traceable to the number of the sender and that the number was registered in the name of the accused, the claimant herein. This report was however not produced at the trial. The Court further noted that by a Memo dated 11th November, 2019, the claimant requested for the report from Safaricom and Communication Authority of Kenya that the respondent relied on but as noted from the evidence, the respondent never provided him with the information. 56.The Court further notes that the Respondents confirmed that they did not conduct any independent investigations to ascertain if the email was sent by the Claimant as required by its Disciplinary Procedure clause 11.5.3. and as already observed, the two reports from Safaricom and Communication Authority of Kenya alluded to have linked the Claimant were never shared with him or produced by the respondent in this case. 57.During hearing the 2nd Respondent confirmed that he did not know who authored the email and that the Claimant was in fact hired after him and they had a good relationship where he transported his in-laws at the wedding and reception. That the police never shared with him their findings and the closest he got to the Claimant was when he testified in court. He did not know the outcome of the criminal case. This therefore meant that the Claimant and the 2nd Respondent were in good terms and one would wonder why the Claimant would threaten him. This therefore required independent and additional evidence linking the Claimant to the email which the 1st Respondent did not availed to the court or to the Claimant. In this regard, the court will be guided by the case of Pius Machafu Isindu v Lavington Security Guards Limited [2017] eKLR, where the Court of Appeal stated:“There can be no doubt that the Act, which was enacted in 2007, places a heavy obligation on the employers in matters of summary dismissal (Emphasis mine) for breach of employment contract and unfair termination involving breach of statutory law. The employer must prove the reasons for terminating (section 43) – prove that the grounds are justified (section 47 (5), among other provisions. A mandatory and elaborate process is then set up under section 41 requiring notification and hearing before termination.” 58.The 1st Respondent was bound by section 47(5) required it to justify the reasons for summarily dismissing the Claimant hence could not therefore hide under the provisions of section 43(2) which stipulated that the employer could dismiss on the basis of reasons it genuinely believed to exist and caused it to terminate the employment of the Claimant. The allegations against the claimant were quite serious if proved could have attracted criminal penalties including a jail term. Besides, the show cause letter to the claimant alluded to reports from Safaricom and Communication Authority of Kenya yet these reports were neither availed to the claimant for purposes of disciplinary hearing despite asking for them nor were there produce in court in defence to the claimant’s claim. There was therefore no basis for the respondent to invoke section 43(2) of the Act since there was nothing to genuinely believe existed to justify the dismissal. On this score the court finds and holds that there existed no valid and justifiable reasons for dismissing the claimant hence the summary dismissal was contrary to section 45 of the Act. 59.Regarding procedural fairness as provided under section 41 of the Employment Act, this court notes that the same was never adhered to as the 1st Respondent confirmed that they never conducted any internal independent investigations as required by its own Discipline Procedure Manual they only relied on police investigations, they never furnished the reports illustrating that the Claimant was the author of the email during the disciplinary process to enable the Claimant mount his response and they also denied the Claimant his right of appeal. 60.This court wonders what was hard for the 1st Respondent in getting the documents which it relied on in its show cause letter to the claimant. It either meant it was in its possession and adverse to the allegations against the claimant or never existed. In this respect, the court is guided by the holding in the case of Kenya Union of Commercial Food and Allied Workers v Meru North Farmers Sacco Limited [2014] eKLR where it was held that: -Section 41 of the Employment Act is couched in mandatory terms. Where an employer fails to follow these mandatory provisions, whatever outcome of the process is bound to be unfair as the affected employee has not been accorded a hearing in the presence of their union representative. 61.In conclusion this court finds that the Claimant’s termination was both substantively and procedurally unlawful hence unfair. Whether the Claimant was defamed by the Respondents. 62.The Claimant alleged that the allegations of threatening his colleague which brought in the show cause letter and the summary dismissal, amounted to defamation as he has not thereafter able to secure another job. During hearing he confirmed that the Respondents never published the said documents. The court therefore finds that the said documents were internal communication between employer and employee and if any publication happened it must be the Claimant who published them. To this end the court finds that the Claimant has not met the threshold of proving defamation and the same fails. Whether the Claimant is entitled to reliefs sought. 63.The Court after finding that the summary dismissal was unlawful and unfair, the Claimant is entitled to compensation for unfair termination as per section 49 of the Act. The Claimant had worked for the Respondent for around 1 and half years and noting the serious and unproved allegations against him, his arrest, prosecution, the callous manner the respondent handled them despite the claimant’s request to be furnished with the reports relied on and noting the parameters under section 49(4) of the Employment Act, an award of six month’s salary as compensation for unfair termination would be reasonable in the circumstances. The Claimant is further entitled to notice pay as per section 36 of the Employment Act after the court has declared the termination unfair. 64.On the prayer for house allowance the Claimant was paid a basic salary which was similar to gross pay as per the payslips attached. The employment contract stated that he would be paid a gross salary of Kshs. 130,000/= then it stated the other allowance of airtime allowance. It was therefore clear that the salary was never stated as consolidated. House allowance was therefore not paid and the Claimant was entitled to the same as per section 31 of the Act. 65.The prayers of damages for defamation and permanent injunctions fail since the Claimant never proved the defamation. The Claimant during hearing confirmed that he received his certificate of service and if not yet he is entitled to it by virtue of section 51 of the Act. 66.In conclusion the Claimants claim succeeds with costs as follows:a.Six months’ salary as compensation for unfair termination of service …………………………………………..…..Kshs 780,000/=b.Notice pay………………………………………Kshs 130,000/=c.House Allowance ……………………………...Kshs 331,500/=d.Damages for defamation and Permanent injunctions………Kshs NILe.Certificate of serviceTotal KSHS. 1,241,500/= 67.This award shall be subject to taxes and statutory deductions but shall attract interest at court rates from the date of judgment until payment in full 68.It is so ordered. DATED AT NAIROBI THIS 2ND DAY OF JULY, 2026DELIVERED VIRTUALLY THIS 2ND DAY OF JULY, 2026ABUODHA NELSON JORUMPRESIDING JUDGE-APPEALS DIVISION