https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1514

Mulu v Total Kenya PLC (Employment and Labour Relations Cause E629 of 2021) [2026] KEELRC 1514 (KLR) (29 May 2026) (Judgment) Neutral citation: [2026] KEELRC 1514 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nairobi Employment and Labour Relations Cause E629 of 2021 NJ Abuodha, J May 29, 2026 Between Hillary Kyalo Mulu Claimant and Total Kenya PLC Respondent Judgment 1.The Claimant through the Memorandum of Claim dated 25th June, 2021 pleaded inter alia as follows: -a.The Claimant averred that vide a contract dated 17th October, 2005, he was employed by Caltex Kenya Ltd/Chevron Kenya Ltd as a Business Service Supervisor on a six months’ probationary contract and he was subsequently confirmed upon the expiry of the probationary period.b.That he worked diligently under Caltex until 31st May 2009 when Caltex was acquired by Total Kenya Ltd, the Respondent herein. After the acquisition of Caltex, the Claimant was absorbed by the Respondent on 1st June 2009 retaining the exact and similar terms (Inter alia, Salary, Pension, Medical Insurance, Mortgage/House Allowance) as those under Caltex, except the change of title from "Business Service Supervisor" to "Plant Accountant."c.That in November 2011, the Claimant was reassigned from the role of Plant Accountant in Mombasa and was seconded to Netco Management Limited, a sister company of Total Kenya Ltd, as the Netco Internal Auditor.d.That in August 2013, the Claimant was transferred from Netco Internal Auditor to the Internal Audit Department of Total Kenya Head Office as an Internal Auditor. He worked as an Internal Auditor until August 2017 when he was reassigned as a Territory Manager in the Commercial, Retail & Lubricants Department in charge of retail sales for a Territory within Nairobi known as "Nairobi 7".e.That the Claimant worked diligently as a Territory Manager and received bonuses for his outstanding work. Through coaching and training service station staff, the Claimant exceeded sales targets. In the three months of January, February and March 2019, the Claimant exceeded sales targets and received a bonus of Kshs 143,000/=. In the next three months of April, May and June 2019 he worked even harder and exceeded sales targets once more received a bonus of Kshs 178,687.50.f.The Claimant averred that to his dismay however in April 2019 the Respondent granted him an annual pay increase of 0.11%s which was not commensurate to his outstanding performance whereas he had exceeded his sales target set by the Respondent. The expected increment was 4-5% on annual basis receivable upon exceeding targets.g.Subsequently, in August 2019, the Respondent transferred him from ‘Nairobi 7 Territory’, to a new and smaller territory known as ‘Waiyaki Way Territory' within Nairobi. That the reassignment was a demotion as the stations in the new territory were very small with average sales of 150,000 to 200,000 liters per month in contrast to stations in the Nairobi 7 Territory where sales averaged 500,000 liters to one million liters per month.h.In addition, the stations were very far from the Claimant's place of residence a fact that would add to the stress of the job. From Komarock Estate in Nairobi (the Claimant's residence), Njabini TOTAL services station was 220km (both ways), while Kimende Total service station was 130km (both ways) Limuru Total and Ngenia TOTAL service stations were 100 kilometers each (both ways).i.In addition, the weather around Njabini, Kimende, Limuru and Ngenia is generally very cold. The additional stress was detrimental to the Claimant's health condition which was well known to the Respondent.j.The Claimant further averred that at the point of the transfer, he had achieved the highest quarterly bonus of Ksh 178,687.50 for outstanding growth in Sales between April, May & June 2019 and was in fact expecting a promotion to the vacant position of Network Regional Manager (NRM) which had been declared vacant but not a transfer. The Claimant considered the transfer to be a move to frustrate him and push him away from growth opportunities within the company. The Claimant was aware that the vacant position was finally filled on 1st October, 2019.k.The Claimant averred that he was in the process of handing over his old territory of "Nairobi 7" and taking over the new territory of Waiyaki Way" when on 16th August, 2019, he was summoned via a brief email message by the Human Resource Manager, Mrs. Irene Muinde, to appear for an unscheduled meeting on 20th August, 2019 at the Respondent's headquarters at Regal Plaza, Limuru Road. The email did not state the agenda of the meeting.l.The Claimant averred that on arriving for the meeting of August 20th 2019, he found what turned out to be the Disciplinary Committee waiting for him. The Committee consisted of the following senior managers of the Respondent: Mr. Charles Wambugu (Risk, Governance & Compliance Manager); Mr. Ellon Kamau (Internal Audit Manager); Mrs. Irene Muinde (Human Resources and Administration Manager); Mr.Francois-Xavier Ruenes (Commercial, Retail & Lubricants Manager);and Miss Millicent Gitonga (Network Sales Manager).m.The Claimant averred that Mr.Charles Wambugu proceeded to welcome him to the meeting and informed the Claimant that he was under investigation because the management had received complaints from dealers that he had received bribes through his MPESA mobile number 0722756245 on diverse dates between 1st January 2018 and 31st May 2019. The said Mr. Charles Wambugu asked the Claimant to confirm whether that was his mobile number and upon confirmation proceeded to read out five names of the alleged Total Dealers or station employees who purportedly complained of sending money to the Claimant.n.The Claimant averred that from the 5 names, three of the alleged complainants were not Total employees. The Claimant explained that one of the persons was in fact his cousin, Miriam Syombua Mwikali who was not an employee of the Respondent; the second transaction happened to be a wrong transaction from a stranger (Simon M'Mkirima) which the sender reversed through Safaricom, while the third one was a transaction for Kshs.10,000 with an MPESA agent who directly deposited money to the Claimant's account through her mobile phone number while the Claimant gave her the cash. The Claimant further explained the other 2 alleged complainants were his two colleagues who were also his friends and the monies they sent him had nothing to do with work and neither did he demand for the same from them.o.The Claimant averred that he was completely taken aback by the allegations and the fact that it appeared that the Respondent had stolen, hacked or gained irregular and unlawful access to his own MPESA transactions.p.The Claimant could not respond to some of the transactions immediately given that some had taken place over a year earlier and the allegations were an ambush. When the Claimant insisted that he be granted access to the document Mr. Charles Wambugu was reading from, the Claimant was denied this opportunity and informed by the Committee to prepare a written explanation of the accusations levelled against him or risk losing his job. The Committee further demanded that the Claimant further provides his MPESA statements to "clear himself'.q.That after the disciplinary hearing, he contacted his cousin Ms. Miriam Syombua Mwikali as well as the 2 employees who the Disciplinary Committee had alleged to be complainants in the charges against him. The Claimant stated that the three alleged complainants denied filing any complaints with the Respondent. In fact, Ms. Miriam Syombua informed the Claimant that one Mr.Charles Wambugu had contacted her by a phone call on 19th July, 2019 being one month prior to the disciplinary hearing and asked her if she was an employee of the Respondent to which she responded that she was not after which Mr.Charles Wambugu hung up. (an audio recording of the conversation was availed during hearing)r.The Claimant averred that there was absolutely no way that the Respondent would have had knowledge of the aforementioned MPESA transactions with his cousin Miriam Syombua Mwikali for a cumulative amount of KShs, 323,400 from 29 transactions done in a span of 17 months and, the other alleged complainants with the exact amounts unless the said Mr.Charles Wambugu or other agents of the Respondent had stolen, hacked or otherwise unlawfully obtained his Mpesa Statement which is not only an infringement of his constitutional right to privacy but also a breach of the Respondent's compliance Policy Manual which stales that Managers who enforce compliance must demonstrate "exemplary behavior, respect employees' privacy and comply with National Laws.s.The Claimant averred that in compliance with the demands of the Disciplinary Committee he submitted two statements one on 20th August 2019 and the second on 23rd August 2019 to Mrs. Irene Muinde (the Human Resource Manager) and copied to Mr. Francois-Xavier Ruenes (the Commercial, Retail & Lubricants Manager).t.The Claimant averred that the Human Resource Manager sent him an email asking for his MPESA statement on the 5th of September 2019. On 16th September,2019, Claimant produced a limited MPESA statement regarding the allegations raised. Subsequently, the Respondent summoned him to a second disciplinary hearing on 20th September,2019. During the hearing, the Human Resources Manager, the Risk, Governance &Compliance Manager and the Internal Audit Manager scolded the Claimant for "wasting Management's time" by not submitting his Full Mpesa statement and demanded that the Claimant writes a letter, in his own handwriting, requesting Safaricom PLC to send the Claimant's Full Mpesa statement directly to the Human Resources Manager.u.The Claimant averred that after these events; the impugned disciplinary proceedings, breach of privacy by gaining unlawful access to his MPESA statements, the demotion by a transfer to Waiyaki Way Territory and unfair consideration in pay increment, the Claimant was convinced that the Respondent was on a mission to witch-hunt and was intentionally making the working environment hostile, unfavorable and that the Respondent was no longer keen to respect the contract of employment with the Claimant.v.The Claimant averred that he suffered immense mental anguish, emotional distress and depression as a result of the Respondent's actions tailored to push him out of the company. That it became apparent to him that the Respondent was keen to terminate the employment relationship and was seeking to have the Claimant incriminate himself through his MPESA statements. The Claimant was apprehensive that it would be extremely difficult to secure a fair hearing from a disciplinary committee that was hell bent on looking for any evidence to take him down. At this point, the Claimant opted to tender his resignation letter involuntarily which he did after the Second Disciplinary hearing on, 20th September,2019.w.The Claimant averred that the Respondent’s conduct clearly amounted to constructive dismissal of his employment as it created a hostile environment where it would be impossible for him to reasonably continue discharging his duties as the Territory manager through harassment, intimidation and witch-hunting.x.The Claimant particularized the constructive dismissal and averred that as a result of the matters set out above, the Claimant suffered loss and damages. That he was 47 years at the time of termination of employment earning a gross salary of Kshs.473,975 per month and had a permanent contract expected to terminate upon his retirement at the age of 60 years. 2.The Claimant in the upshot prayed for the following against the Respondent: _a.A declaration that the disciplinary process was unfair, unprocedural, malicious and a witch-hunt therefore in breach of the Claimant's fundamental rights and freedoms of employment, procedurally and substantially unfair and unlawful;b.A declaration that the Respondent, by its actions rendered the working environment intolerable for the Claimant;c.A declaration that the Claimant's involuntary resignation was a direct result of the Respondent's hostile actions specifically: unfair, unprocedural, malicious and a witch-hunt disciplinary process; breach of privacy; demotion by transfer to Waiyaki Way Territory; and a disparate pay rise of 0.11% in April, 2019 therefore constituting constructive dismissal from employment; andd.Compensation for unlawful termination of employment:The Respondent be ordered to pay the Claimant;i.Compensation for unlawful termination arising from constructive dismissal equivalent to 12 months gross salary calculated at Ksh 473,975 x 12 months= Kshs 5,687,700/=ii.General damages for breach of privacy rightsiii.Exemplary damagesiv.Interest on (i) (ii) and (ii) above at the court ratesv.Costs of the suit 2.The Respondent filed its Statement of Response dated 18th October, 2021 and averred inter alia as follows: -a.The Respondent admitted that the Claimant was employed by the Respondent (formerly Caltex Kenya Limited) on 17th October,2005.b.The Respondent averred that the Claimant was expected to diligently perform his duties as per his contract of employment and the Respondent's policies. The Claimant's remuneration for work done was as stipulated in the contract of employment as adjusted from time to time by consent of both parties.c.The Respondent averred that the payment of bonus is a discretionary payment governed by the Respondent's Bonus Policy, aimed at rewarding, and motivating Employees.The Claimant cannot compel the Respondent to pay a discretionary payment, once the discretion has been exercised and is not in his favour.d.The Respondent averred that save for the fact that the Respondent transferred the Claimant to another territory on or about the month of August 2019, the Respondent averred that the Claimant's contract of employment informed him that he would be required to perform duties in other locations in Kenya as he may be assigned. That the Claimant did not lose any benefits or position because of his transfer from one station to another.e.The Respondent averred that the correct sequence of events was as follows:i.Sometime in the month of May 2019, the Respondent's Integrity Committee received an allegation from the Commercial and Retail Manager and Network Sales Manager that a territory Manager- Hillary Mulu - was soliciting money from service station dealers, mainly from the Young Dealers. This information was brought to the Respondent's attention by one of the Young Dealers who had refused to pay the bribes. The Respondent was informed that the payments were made through mobile money transfer, M-PESA transactions.ii.The Respondent's Integrity Committee therefore engaged an independent external investigator to investigate the matter. The investigator, working with the relevant authorities, including the police, inquired and obtained from Safaricom the Claimant's M-PESA Statement.iii.The Respondent therefore summoned the Claimant and notified him, in a meeting held on 20th August 2019, of the allegations received against him and that investigations commenced. The Claimant was requested to submit a statement in respect of the allegations.iv.The Claimant submitted a statement through which he denied receiving the amounts as alleged or at all. He gave a narration in respect of the amounts received by him. The Claimant also submitted an M-PESA Account Statement.v.The Investigator then submitted a report to the Respondent on the findings of the investigations. According to the report, the Claimant had received a total of Kshs. 83,700 from four of the Respondent's dealers/their employees via M-PESA. These payments were made between the months of January 2018 and May 2019.vi.The Respondent, thereafter, summoned the Claimant for a meeting with its Integrity Committee in order for the Claimant to aide in the investigations and provide information in respect of the discrepancies between the M-PESA Statement obtained by the Investigator and that submitted by the Claimant. During this meeting, the Claimant once again denied receiving the bribes.vii.While the Respondent was reviewing the evidence submitted by the Investigator and that of the Claimant, in order to determine whether there was enough evidence or reason to issue a notice to show cause to the Claimant, the Respondent received a resignation letter from the Claimant on 20th September, 2019.viii.The reasons outlined in the Resignation letter did not include the ongoing investigations as alleged by the Claimant or at all. The Claimant resigned because he felt that the topography of the area he was transferred to was different from the topography of his earlier station. The reasons stated in the resignation letter were never brought to the attention of the Respondent prior to the Claimant's resignation.ix.The Respondent accepted the Claimant's resignation on 23rd September 2019 and notified him that he would be paid his terminal dues. The Respondent also waived the notice period and paid the Claimant one month's salary in lieu of notice.a.The Respondent averred that the Claimant was given an opportunity to produce an M-PESA statement in response to the allegations raised against him. That no disciplinary proceedings were ever conducted against the Claimant. The Claimant was called upon from time to time to assist in investigations by responding to issues that arose as the investigations were ongoing.b.The Respondent prayed that the Memorandum of claim be dismissed with costs. 3.The Claimant filed his reply to the Respondent’s response to the claim dated 20th April 2022 and averred that he was an exceptional and outstanding employee. That it was a policy of the Respondent that bonuses were paid only to those employees who exceeded their performance targets and he did. That the transfer from the region known as “Nairobi 7” to a new region known as “Waiyaki Way” was a demotion calculated to stress out, burn out and frustrate the Claimant out of employment. 4.That he was not aware and was never informed that the Respondent had engaged an independent external investigator, the police and other relevant authorities to help in obtaining his Mpesa statements from Safaricom. Indeed, this same evidence would have been easily obtained from the alleged Complainants. 5.That he was afraid that accusing the Respondent’s Management of stealing, hacking or secretly and unlawfully obtaining the Claimant’s MPESA statement, frustrating him as an employee and subjecting him to an unfair disciplinary hearing could annoy the Respondent to the point of refusing to pay him his final dues or to give him a clean Certificate of Service. To avoid conflicts with a powerful Respondent (TOTAL Kenya Plc); the bribery allegations, the breach of privacy, the demotion, the denial of annual pay raise and all the mistreatment were described in the resignation letter in a polite language as “too many red flags along my career path” Evidence 6.Both the Claimant’s and Respondent’s case were heard on 16th October, 2025. The Claimant called two witnesses the first being the Claimant herein (CW1) who was acting in person. He stated that he was constructively dismissed and there was breach of privacy when the Respondent allegedly obtained his Mpesa statements and used the same to dismiss him. That he was not issued with a show cause letter. That he was not given minutes of disciplinary hearing. 7He stated that he was demoted at the same time taking a new job in a new station. That the accusations of receiving and soliciting bribes from dealers had no basis. That there was no complaint from the dealers. The claimant further stated that he never met the alleged dealers face to face and he was never told the Respondent had his Mpesa statement during the disciplinary hearing. That he was never told that he was under investigations. 8.He stated that Senior Manager Charles Wambungu called his cousin Mirriam his witness on 19th July, 2019 while fishing for evidence. That he transacted vide Mpesa with his cousin and the Respondent alleged that the amounts were bribes. That there was an audio recording filed in court between Wambungu and his cousin. The claimant further stated that the Respondent created a hostile working environment. That they gave him a pay rise of 0.11% yet he had exceeded the set targets. That he received a bonus payment of Kshs 143,000/= and another bonus of Kshs 178,000/=. 9.It was his evidence that he was demoted by the transfer to a distant working area-Waiyaki Way. That one of the station he was supposed to supervise in Njambini was 220Km from Komarok his residence and that before he took work in the new station he was subjected to disciplinary process where 5 senior managers were at the Board room while he was alone. That he decided to resign as he felt stressed and frustrated and he feared for his health. 10.In cross examination CW1 confirmed that he was a territory manager for Nairobi 7 and the transfer to Waiyaki way was for Territory Manager as well. That the new territory was smaller. That there was no reduction in salary and no change in his responsibilities and that he never protested the reassignment. That there was a document to show his health was affected but it was not before court. That he never complained about the distance of the new territory. That he mentioned investigation in the resignation letter. That there was no specific mention of disciplinary hearing in the letter. 11.He confirmed that he protested the manner in which the investigations were carried out. That it was in the demand letter. He stated that the Respondent did not pay his terminal dues and he asked for them in his demand letter. That it was in his claim but there was no claim for terminal dues. 12.He confirmed that when one sends money via Mpesa the sender and recipient are indicated and that the transactions have codes. That the Respondent unlawfully obtained his Mpesa statement from Safaricom. That he was not sure if Safaricom could release personal data casually. That he did not lodge complaint to Safaricom nor complained to Commissioner for Data Protection. 13.He confirmed that as regards the audio recording, he was not in the room when the conversation took place with Mirriam. That he was not aware if Charles consented to the recording. That the authenticity of the conversation was confirmed by Charles during disciplinary hearing. 14.He confirmed that there was nothing written during disciplinary hearing. That there was no confirmation of the conversation between Mirriam and Charles. That he was the one who transcribed the conversation. That he did not know if there was any third party who handled the recording. 15.He confirmed that he expected a promotion not a transfer but there was no promise of promotion from the Respondent. That he was summoned for disciplinary hearing which was the same day he resigned on 20th September, 2019. 16.In re-examination CW1 clarified that the demotion happened before disciplinary hearing. That for 30 days the Respondent was exerting pressure on him to provide full Mpesa statement and he did not do that. That they became furious. That he was asked to tell Safaricom to send the Mpesa statement directly to them. That he resigned the same date. That he told Wambungu that he called his cousin who does not work for Safaricom and he wanted to know why. 17.The second Claimant’s witness was Mirriam Syombua Mwikali CW2 who stated that she had two issues. That she had never dealt with the Respondent. That it was not a coincidence that the timing was suspicious in that two weeks later CW1 started having problems with the Respondent. That is what prompted her to do the recording. 18.In cross examination CW2 confirmed that on 19th July, 2019 she received a call from Wambungu. That she did not decide to record as her phone had auto recording facility. That she did not tell Wambungu that he was being recorded. That she asked Wambungu why he was not calling using office line. That the questions that Wambungu was asking were too personal. 19.CW2 confirmed that she asked him if he was calling her from Chai House the Head office of Total. That she was told there was no such head office. That she had no prior information on the investigations. That the Claimant never showed her his resignation letter but he told her he resigned due to pressure. She stated that the Claimant deliberately withheld his statement because he later intended to sue Total for breach of privacy. 20.In re-examination she clarified that the Respondent seemed to have prior information about what was happening on Claimant’s Mpesa. That is why the Claimant refused to provide his Mpesa statement. 21.The Respondent on the other hand called one witness one Victoria Tsalwa, the Remuneration and Benefits Manager of the Respondent. RW1 adopted her witness statement sworn on 27th July, 2023 together with the documents filed with the response as her evidence in chief. 22.In cross examination RW1 confirmed that she did not attend the disciplinary hearing. That she never read the minutes and the minutes were not before the court. That she was not a member of integrity Committee. That there was no statement from the young dealer. That they did not file the report of the external investigator. 23.She confirmed that the Claimant was not informed of the charges against him prior to the disciplinary hearing. That as per Anti-corruption Policy Document before the court there was no evidence for solicited bribes from the dealers. That there was no correspondence from commercial manager to integrity committee. That there was no report/complaint from dealers allegedly bribed. 24.In re-examination RW1 clarified that they had not tabled the report from young dealers because they reported as whistleblowers and asked that their identity to be protected. Claimant’s Submissions 25.The Claimant filed his written submissions in person dated 14th November, 2025 and on the issue of whether the disciplinary process was unfair, unprocedural, malicious and a witch-Hunt the Claimant submitted that Section 41 of the Employment Act, 2007 provides the procedure for handling of employee disciplinary cases. He relied on the case of David Gichana Omuya v Mombasa Maize Millers Ltd [2014] KEELRC 526 (KLR) which interpreted the above provision. 26.That this authority affirmed that once disciplinary action is initiated, termination is already under consideration, thus demanding strict adherence to both procedural and substantive fairness. In the Claimant’s case, the disciplinary process was illegal, unfair, unprocedural, and malicious, as confirmed by the Respondent’s witness, Ms. Victoria Tsalwa, who admitted that the Claimant was not issued with a show-cause letter, was not given minutes of the disciplinary proceedings and was denied the right to be accompanied by a representative of his choice, contrary to Section 41 of the Employment Act and Article 41(1) of the Constitution of Kenya. 27.That the Respondent’s Governance, Risk & Compliance Manager further engaged in a witch-hunt by contacting the Claimant’s cousin in an attempt to solicit evidence. Acting in bad faith, the Respondent had already obtained the Claimant’s M-PESA statement but they pretended to be reading non-existent complaints allegedly made by “young dealers”. When the Claimant requested to see those complaints, the Respondent refused and instead ordered him to produce his M-PESA statement to “clear himself,” in violation of his right to privacy under article 31 of the Constitution. 28.That Ms. Tsalwa also confirmed that the Claimant was not given any chance to prepare his defence before the disciplinary hearing of 20th August 2019. These actions collectively demonstrate the bad faith, malice, and disregard of due process orchestrated by the Respondent’s senior managers to frustrate, humiliate, and unlawfully terminate the Claimant. 29.That Respondent failed to rebut the Claimant’s evidence that the disciplinary process was illegal, unprocedural and malicious. Instead, the Respondent presented a witness who neither sat in the Respondent’s Integrity Committee nor attended the disciplinary proceedings- a fact she expressly admitted to during cross- examination. Consequently, all her averments regarding the disciplinary process amounted to hearsay, especially since no minutes of the disciplinary meeting were produced in court, a fact she also conceded during the hearing. 30.That Claimant submitted that the importance of conducting a fair disciplinary process had been underscored in numerous authorities, including National Bank of Kenya v Samuel Nguru Mutonya [2019] KECA 404 (KLR) and Mary Chemweno Kiptui v Kenya Pipeline Company Limited [2014] KEELRC 905 (KLR). 31.On the issue of whether the Claimant resigned to evade disciplinary action the Claimant submitted that the Respondent may seek to mislead this Honourable Court by alleging that the Claimant resigned to evade disciplinary proceedings over alleged bribery involving “young dealers,” reliance was placed on the case of Chege v Timsales Limited [2025] KECA 1660 (KLR), where the Court held that an employee cannot resign to avoid disciplinary action and later claim unfair termination. 32.The Claimant respectfully distinguishes his case from Chege v Timsales (supra). Unlike in that matter, the disciplinary process herein was illegal, malicious, and procedurally defective from inception. For thirty (30) days—between 20 August 2019 and 20 September 2019—the Claimant was never issued with a show-cause letter, was denied representation, was not furnished with minutes of the disciplinary hearing, and was demoted just before the start of the proceedings. 33.Accordingly, the Claimant’s resignation was not to evade accountability, as no misconduct was attributable to him and none had been proved against him. Rather, the Respondent’s conduct rendered the work environment intolerable and hostile, compelling him to resign. 34.That the disciplinary proceedings of 20th August and 20th September 2019 were unlawful, procedurally unfair, and malicious, amounting to a witch-hunt. The Respondent’s actions violated Section 41 of the Employment Act and article 41(1) of the Constitution, constituting a fundamental breach of contract and thereby justifying the claimant’s involuntary resignation as an act of constructive dismissal. 35.On the issue of whether the Claimant was constructively dismissed the Claimant submitted that courts have pronounced themselves extensively on what amounted to constructive dismissal. That the first and major consideration in a constructive dismissal claim was the conduct of the employer while relying on the Court of Appeal in Coca Cola East & Central Africa Limited v Maria Kagai Ligaga [2015] KECA 394 (KLR). 36.The Claimant submitted that the actions undertaken by the Respondent created a hostile and intolerable working environment, thereby constituting a fundamental breach of the terms of the employment contract. The Claimant submitted on definition of constructive dismissal as per the Black’s Law Dictionary (Tenth Edition). He also relied on the case of Kihura v Amazon Motors Limited [2024] KEELRC 1168 (KLR) which relied on the Court of Appeal’s pronouncement in the Coca-Cola case above on the key elements for constructive dismissal. 37.It was submitted that following the second disciplinary hearing on 20th September 2019, the Claimant tendered his resignation involuntarily after being subjected to an unlawful, malicious and procedurally defective process. He was neither issued with a show-cause letter nor provided with the minutes of the hearing and was denied representation of his choice. There were no complainants present at the meeting and the Respondent appeared to have fabricated bribery allegations after unlawfully accessing the Claimant’s M-PESA statement, further demanding that Safaricom forward the same to its Human Resource Manager. The Claimant had also been demoted. 38.That the Respondent’s hostile actions rendered the work environment intolerable, leaving resignation as the only reasonable option to avoid dismissal. Most importantly the, Respondent’s actions grossly breached the employment contract. The Claimant urged the Honourable Court to consider the legal principles set out in Coca Cola case above. That the actions of the Respondent caused him to resign. 39.On the issue of whether the Claimant’s right to Privacy was violated the Claimant relied on Article 31 of the Constitution of Kenya on the right to privacy. That by asserting reliance on an external investigator to obtain the Claimant’s MPESA statement, the Respondent had effectively admitted to breaching the Claimant’s constitutional right to privacy. The purported investigator unlawfully accessed the Claimant’s M-PESA transaction records and disclosed that information to the Respondent’s management, which in turn led to intrusive and unwarranted contact with the Claimant’s cousin to fish for evidence to support fabricated bribery allegations. 40.That such conduct, as affirmed in Mwangi v ABSA Bank Kenya PLC [2024] KEELRC 2399 (KLR), constituted an unlawful intrusion into an employee’s private life and therefore violates both constitutional and statutory protections of privacy. The Respondent’s alleged claim of police involvement was unsubstantiated, no OB number or documentary proof of engagement with the relevant authorities having been provided. That the same went against the holding in the above case. The Respondent infringed on private life of the Claimant. 41.Further the Claimant relied on the case of Jessicar Clarise Wanjiru v Davinci Aesthetics & Reconstruction Centre & 2 Others [2017] eKLR which defined privacy of the person. That article 31(d) of the Constitution of Kenya safeguarded every individual from unwarranted disclosure of private or family information and from intrusion into personal communications. 42.That the Respondent admittedly obtained and analyzed the Claimant’s M-PESA statement, then contacted the Claimant’s cousin under the mistaken belief that she was an employee of the Respondent yet she was not. No evidence had been produced showing any complaint against the Claimant to justify such action. The Respondent therefore had no lawful or reasonable basis to access the Claimant’s M-PESA records through a private investigator. The Claimant thus prayed that this Honourable Court finds that his constitutional right to privacy was violated and awards just and adequate damages for the breach. 43.On the issue of whether the Claimant was entitled to the reliefs sought on compensation for unlawful termination of 12 months’ salary, the Claimant relied on section 49 of the Employment Act which provided for the same and further supported by various court pronouncements as seen in among others in Irene Akoth v Tobias See & 8 others [2021] KEELRC 1884 (KLR) where the Claimants were awarded 12 months’ compensation for what the court summarized as constructive retrenchment. 44.That the evidence for the computation of the gross salary can be found in the pay slip at page 42 of the Claimant’s trial bundle which aggregated the monthly basic salary of Kshs. 406,108, mileage allowance of Kshs. 66,667 and telephone benefit of Kshs. 1,200. 45.On the claim for general damages for breach of privacy rights the Claimant submitted that having proved the violation of his constitutional right to privacy, the Claimant respectfully urged this Honourable Court to award him minimum damages of Kshs. 5,000,000 (Kshs. 5 million) guided by the recent judicial pronouncement in Mwangi v ABSA Bank Kenya [supra] and the award in Joel Mutuma Kirimi & Another v National Hospital Insurance Fund (NHIF) [2020] KEHC 8542 (KLR), both of which addressed breaches of the right to privacy. 46.On the Claim for exemplary damages the Claimant further relied on the decision in Okello v Standard Media Group & 3 Others [2023] KEHC 21568 (KLR) to seek an award of Kshs. 2,000,000 (Ksh two million) in exemplary damages, taking into account prevailing inflationary trends. In that case, the Court adopted the reasoning in Godfrey Julius Ndumba Mbogori & Another v Nairobi City County [2018] eKLR, wherein an award of Kshs. 1,500,000 was granted. Respondent’s Submissions 47The Respondent through its advocates Mohammed Muigai LLP filed written submissions dated 14th January, 2026 and on the issue of whether the Claimant was constructively dismissed counsel submitted that constructive dismissal was not presumed. It must be strictly proved. The burden lies squarely upon the Claimant to demonstrate that the Respondent's conduct amounted to a repudiatory breach of the contract of employment, entitling him to treat the contract as terminated. 48.That the essential elements of constructive dismissal were now settled. The Claimant must establish that:a.the employer committed a fundamental breach of the contract of employment.b.the breach was so serious as to render continued employment intolerable.c.the employee resigned in response to that breach.d.the employee did not delay unreasonably in resigning, failing which the breach may be deemed to have been waived. 49.Counsel relied on the case of Milton M Isanya v Aga Khan Hospital Kisumu [2017] KEELRC 571 (KLR), where the Court, relied on Black's Law Dictionary to define constructive dismissal and the Court of Appeal in Coca Cola East & Central Africa Limited v Maria Kagai Ligaga [2015] KECA 394 (KLR) which elaborated the doctrine. 50.That it was against these strict principles that the Claimant's case must be measured. On whether the Respondent committed a fundamental breach of the contract of employment it was submitted that the Claimant relied on three broad complaints as constituting the alleged "breaches": the investigations and disciplinary steps, the alleged breach of privacy and the transfer and salary increment. 51.Counsel submitted that none of these, whether taken individually or cumulatively, meets the legal threshold of a fundamental or repudiatory breach. First, integrity investigations do not amount to a breach of contract, they are a legitimate and necessary employer function, particularly within regulated and compliance-driven corporate environments. 52.That in the present case, the Respondent commenced investigations following concerns raised internally. The Claimant was informed of the allegations and afforded an opportunity to respond. Far from evidencing malice, this demonstrated procedural engagement. The Claimant did not show that the Respondent acted without basis, without complaint or outside its institutional mandate. The evidence instead confirmed that concerns were raised and that the Respondent responded by initiating investigations. 53.That secondly, on the alleged "disciplinary hearing", the Respondent's pleadings and evidence show that the process did not ripen into a concluded disciplinary determination. No dismissal was effected. The Claimant resigned in the midst of investigations. That the law does not permit an employee to resign midstream and thereafter allege that the employer terminated him, unless the stringent requirements of constructive dismissal are met. They have not been met in this case. 54.That thirdly, on the issue of transfer, the Respondent's position was that the Claimant's designation was not altered; no fundamental terms and conditions of employment were changed and the Claimant's salary did not reduce. That in those circumstances, the transfer cannot without more, be characterized as a "demotion" or as a breach of contract. 55.That fourthly, dissatisfaction with the percentage of salary increment cannot amount to a legal breach unless the Claimant demonstrated a contractual entitlement to a specific increment or proves discrimination on recognized legal grounds. That salary increments were generally discretionary and dependent on factors such as performance, productivity, inflation and the employer's operational realities. The Claimant did not produce any contractual clause guaranteeing him a 4-5% increment. 56.That without such contractual entitlement, dissatisfaction with the level of increment could not amount to a breach, let alone a fundamental breach. Counsel relied on the case of Denis Wamalwa Sifuna v African Line Terminal & Logistics Ltd (Cause No.46 of 2018) eKLR on this assertion. 57.On the issue of whether any alleged breach was fundamental and repudiatory counsel submitted that the only substantive change relied upon by the Claimant was the transfer from "Nairobi 7 Territory" to "Waiyaki Way Territory", which he labelled a demotion. That his designation remained unchanged, his salary remained intact and no evidence was tendered to demonstrate alteration of his core contractual terms. 58.That the Claimant further alleged that the transfer was detrimental to his health. This assertion remained wholly unsupported. No medical records were produced to substantiate this claim or to demonstrate that the Respondent was placed on notice of any such condition. It was submitted that applying the principles set out in Coca Cola v Maria Kagai Ligaga (Supra), the Claimant failed to demonstrate that the Respondent made any unilateral fundamental change to the contract, or that the circumstances were rendered so intolerable that he was unable to continue working. That on the contrary the evidence showed continued engagement, continued employment and the absence of any disciplinary sanction prior to resignation. 59.On the issue of whether the Claimant resigned in response to the alleged breach counsel submitted that constructive dismissal requires a direct causal link between the employer's breach and the employee's resignation. It is not enough that an employee resigns while unhappy. S/he must demonstrate that he resigned because of the employer's repudiatory conduct. That the Claimant resigned by letter dated September 20, 2019. 60.That this letter was central. It was the contemporaneous account of why the Claimant left employment. That it contained no reference to investigations, no allegation of coercion, no complaint of privacy violation and no protest regarding any disciplinary illegality. Instead, the Claimant attributed his resignation to dissatisfaction with the territory assignment and perceived career stagnation. That this was fatal to the Claimant's constructive dismissal case. It demonstrated that the resignation was a personal career decision and not a compelled exit caused by intolerable working conditions. 61.That if the Claimant's environment had indeed been rendered intolerable by privacy violations and malicious disciplinary processes, it would reasonably be expected that the resignation letter would reflect this or that contemporaneous grievances would have been raised. None were. That constructive dismissal was not established by later litigation narratives. It was established by credible evidence linking breach to resignation. That link had not been made. 63.On the issue of whether the Claimant waived the alleged breach counsel submitted that constructive dismissal further requires that an employee resigns promptly in response to the alleged breach. Where an employee continues in employment without protest, the Court was entitled to infer affirmation of the contract. In the present case, the Claimant was informed of the concerns and the investigations in August 2019. He continued engaging with the Respondent, attended meetings, responded to queries and remained in employment. 64.That there was no evidence that the Claimant, at any time prior to his resignation, formally protested the investigations as unlawful, raised a grievance alleging breach of privacy, or asserted that the Respondent's conduct had rendered his continued employment impossible. That his continued engagement, without objection on the grounds now pleaded, was inconsistent with the assertion that the Respondent's conduct amounted to an immediate and intolerable repudiation of the contract. 65.Counsel relied on the case of Mugo v SOS Children's Village Kenya [2023] KEELRC 1191 (KLR), the Court dismissed a claim for constructive dismissal where the claimant voluntarily resigned in the context of alleged misconduct. That the Claimant's conduct, viewed objectively did not support a finding that he resigned in immediate response to a repudiatory breach, or that any such breach was treated by him as terminating the contract. 66.That his resignation was a deliberate attempt to evade a lawful integrity investigation, disciplinary proceedings, and routine workplace management measures, which he has now improperly reframed as a claim of constructive dismissal. Counsel relied on among others the case of Peter Njuguna Chege v Timsales Limited [2025] KECA 1660 (KLR), on this assertion. 67.That in conclusion, constructive dismissal was an exceptional doctrine that required proof of a fundamental repudiatory breach of contract compelling an employee to resign. In this case, no such breach was demonstrated. The Respondent undertook investigations following integrity concerns, engaged the Claimant and did not impose any disciplinary sanction or terminate his employment. The transfer and salary increment complained of were not shown to alter the Claimant's contractual status or to constitute breaches of contract. 68.That the Claimant therefore, failed to establish the essential elements of constructive dismissal and this Honourable Court was urged to find that the Claimant was not constructively dismissed. 69.On the issue of whether the Respondent violated the Claimant's right to privacy in a manner actionable in this cause counsel submitted that the Claimant alleged that the Respondent violated his constitutional right to privacy by unlawfully obtaining and relying on his M-PESA records during internal investigations. That this allegation was factually overstated and legally misconceived. The Claimant failed to demonstrate that any conduct of the Respondent amounted to an unlawful or actionable intrusion under article 31 of the Constitution. 70.It was submitted that the right to privacy, while constitutionally protected, was not absolute. It must be balanced against a legitimate employer's right and duty to investigate integrity concerns arising within the employment relationship. Where credible complaints of misconduct arise, an employer was entitled to make reasonable inquiries aimed at protecting its business, reputation, and regulatory obligations. 71.That the uncontroverted evidence before this Court was that the Respondent acted following specific complaints emanating from within its dealer network alleging solicitation of monies by the Claimant in the course of his duties. The investigations were, therefore, not speculative or malicious, but compliance-driven, targeted and directly connected to the Claimant's role as a Territory Manager. 72.That the Claimant was informed of the allegations, engaged in the process, confirmed ownership of the mobile number under investigation and was afforded the opportunity to explain the transactions in question. These facts were inconsistent with a narrative of covert surveillance or arbitrary intrusion into his private life. 73.That crucially, the Claimant had not placed before this Honourable Court any cogent evidence demonstrating unlawful access, hacking, coercion or impermissible disclosure of his personal data. The bare assertion that an external investigator was involved, without more, does not establish a constitutional breach. That the Claimant's reliance on Mwangi v ABSA Bank Kenya PLC [2024] KEELRC 2399 (KLR) was misplaced. That decision turned on its own peculiar facts, where investigations were found to be unjustified and disconnected from workplace concerns. The employer, in that case, conducted private investigations into the Claimant's private life and failed to link those investigations to workplace misconduct. In contrast, the present matter involved defined integrity complaints, an internal process and direct engagement with the Claimant. In any event, the decision was not binding on this Honourable Court and must, at best, be treated as persuasive authority confined to its own facts. 74.That further, even assuming privacy concerns arose, the Respondent submits that the appropriate statutory framework for redress lies under the Data Protection Act, under the supervision of the Office of the Data Protection Commissioner. The Claimant did not invoke that mechanism. Section 49 of the Employment Act does not provide for the constitutional and data-protection damages now sought. 75.On the issue of whether the Claimant was entitled to the reliefs sought on the claim of Compensation for unlawful termination arising from constructive dismissal equivalent to 12 months’ gross salary counsel submitted that the Claimant's primary monetary prayer was for compensation equivalent to twelve (12) months' gross salary, purportedly arising from constructive dismissal and anchored on Section49(1)(c) of the Employment Act. 76.That the Respondent had demonstrated that the Claimant was not constructively dismissed. He resigned voluntarily while investigations were ongoing. That in the absence of constructive dismissal or unfair termination, Section 49 was not triggered. The jurisdiction of this Honourable Court to award compensation under Section 49 only arises where termination was first found to be unfair. Where, as here, the Claimant failed to establish unfair or constructive dismissal, the entire statutory remedial framework collapses and no compensatory award can issue. 77.Without prejudice to the foregoing, even if liability were to arise (which was denied), Section 49(1)(c) expressly caps compensatory awards at a maximum of twelve months gross salary. The Claimant had already pleaded the statutory ceiling under prayer (i). There exists no jurisdiction under the Employment Act to exceed or enhance it through parallel damages under the guise of employment compensation (prayers ii, iii and iv). 78.On the claim of General damages for breach of privacy rights counsel submitted that this prayer was legally and jurisdictionally unsustainable within the confines of this cause. 79.On the claim of exemplary damages counsel submitted that this prayer was wholly misconceived. That Exemplary damages were exceptional in nature. They did not flow as a matter of course. They were only awardable in narrowly defined circumstances, including oppressive, arbitrary or unconstitutional conduct, or where statute expressly authorizes such relief. 80.That the Claimant had neither proved any oppressive or unconstitutional conduct on the part of the Respondent, nor demonstrated any factual or legal basis that would bring this matter within the narrow category warranting punitive intervention by this Court. That in any event, exemplary damages cannot be layered upon Section 49 remedies. The Employment Act does not provide for punitive awards. To permit exemplary damages within an employment termination claim would undermine the statutory architecture of labour remedies and open the door to double recovery under the guise of punishment. DETERMINATION 81The Court has reviewed and considered the pleadings, testimonies and submissions by counsel for both parties in support of and against the case. The court has also considered authorities relied on by counsels and frames the issues for determination as:-a.Whether the Claimant was constructively terminated by the Respondent.b.Whether the Claimant’s right to privacy was infringed by the Respondent.c.Whether the Claimant is entitled to the reliefs sought. Whether the Claimant was constructively terminated by the Respondent. 82.It was not in dispute that there existed employment relationship between the Claimant and the Respondent where he was first employed in October, 2005 by Caltex as Business Service Supervisor which was acquired by the Respondent herein in 2009. The Claimant retained his role apart from the title to Plant Accountant. The Claimant rose due to his exceeding performance to Internal Auditor to Territory Manager in 2017. 83.This court notes that during his employment with the Respondent the Claimant received bonuses after he exceeded his sales targets, long service awards in 2010 and 2015 and his salary used to be reviewed annually upward for example 2014 at 8%,2015 at 7% and 2018 at 4% while in 2019 at 0.11% which the Claimant deemed as unfair. 84.The Claimant alleged that in August he was transferred to Waiyaki way Territory from Nairobi 7 territory which had small stations and it was also far from his residence in Komarock. That he was summoned to appear for a meeting on 20th August, 2019 where he found five senior managers of the Respondent in the board room and it was when he was informed that he was under investigations for receiving bribes from dealers. 85.That the Respondent never communicated this information before to enable him defend himself or share the documents with him. That it seemed the Respondent had access to his Mpesa statement unlawfully. That they again requested for his Mpesa statement via email of 5th September, 2019 and he shared a limited statement on 16th September, 2019. 86.That on 20th September, 2019 he was again summoned for a second disciplinary hearing where the Respondent requested that he writes to Safaricom to issue the Mpesa statement directly to them. The Claimant felt frustrated coupled with change of station, salary review and decided to resign. 87.During hearing the Claimant confirmed that there was no change in title or salary upon transfer to Waiyaki Way territory. That he never protested the transfer. That there was no document to show his health was affected. That he never complained about the distance. That he protested the manner investigations were carried out. 88.The Respondent on the other hand alleged that the Claimant received bribes from young dealers and the dealer who raised the complaint was a whistle blower who did not want to be identified. The Respondent witness did not assist their case since she did not attend the disciplinary hearing nor does she sit in the Integrity committee. 89.There were no written complaints from the said dealers or investigation report filed in court. She confirmed that the Claimant was not informed of the charges before disciplinary hearing and there were no minutes of the said hearing filed in court. 90.Whereas section 47(5) of the Employment Act places the employee at a burden to illustrate that unfair termination occurred and the employer to justify the grounds of termination this court will interrogate the concept of constructive dismissal as alleged by the Claimant herein who has the burden to prove the same. 91.The concept of constructive dismissal was aptly articulated by Lord Denning MR in Western Excavating (ECC) Ltd v Sharp (1978) ICR 221 as follows;“If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any further performance. If he does so then he terminates the contract by reason of the employer’s conduct.” 92.Finally, this court is guided by the case of Coca Cola East & Central Africa Ltd v Maria Kagai Ligaga 2015) eKLR, where the Court of Appeal adopted the contractual approach test of constructive dismissal and enunciated the guiding principles including fundamental terms of the contract, causal link between the resignation and the employer’s conduct, resignation within reasonable time and absence of acquiescence, waiver or estoppel among others. 93.Whereas this court interrogates the contents of the resignation letter dated 20th September, 2019 where the Claimant complained of the new station on Waiyaki Way territory not leading to a better career at the Respondent’s he also raised the issue of his volumes in previous territory not being recognised and rewarded as well as many red flags. He also thanked the Respondent for the 14 years of service. 94.From the tone of the letter it was clear the Claimant resigned involuntarily. Coupled with the fact that this same date he was summoned for the second disciplinary hearing by the Respondent who pressed him to write a letter to Safaricom to issue the Mpesa statement directly to them and the fact that his annual salary increments for 2019 was a mere 0.11% while a close scrutiny of the previous years as shown above was 2014-8%, 2015-7% and 2018- 4% this must have compelled the Claimant towards resigning since it was clear in 2019 he earned the most bonuses for exceeding sale targets. 95.Whereas the Claimant confirmed that the transfer to Waiyaki Way territory did not affect his salary, title and responsibilities and that he did not protest the same he confirmed that it was far from his residence and the Claimant ought to have been consulted even before the said transfer happened. The same could not form part of breach of contract since the terms were never affected. 96.The Respondent confirmed that they never notified the Claimant the reasons for the meeting before the meeting of 20th August, 2019, they refused to share the documents they were relying on, they acquired his Mpesa statement illegally and there was no evidence of the complaints from the dealers. There was no investigation report shared with the Claimant or this court despite the Claimant having served the Respondent for 14 years with exemplary performance. 97.The circumstances therefore surrounding the Claimant’s resignation leads to a reasonable conclusion that the Respondent caused an intolerable working condition for the Claimant, it was hell bent in finding any evidence to terminate the Claimant’s service which could for example be seen from the call made to Miriam Syombua Mwikali by a Mr. Wambugu on 19th July, 2019 who was seeking to know if she was an employee of the Respondent which she confirmed she was not. 98.Whereas this court notes that the recording of the conversation between Wambugu and Mirriam consent was not sought the said facts were never denied by Wambugu. He indeed called Mirriam. 99.The court also noted that the Respondent never issued the Claimant with a show cause letter to enable him respond to the charges in writing. It is now clear that the initial disciplinary process starts with a show cause letter as was held in the case of Vicky Kemunto Ocharo v Independent Policing Oversight Authority [2018] eKLR the court held as follows;The formal disciplinary procedure starts with a “show-cause letter”. The employee will be informed in writing by the supervisor of the nature of the complaint allegation. The employee will be required to submit his response within twenty -one (21) days. 100.Whereas the court has had the benefit of perusing the Mpesa statement it was clear most transactions were between Miriam who the Claimant who confirmed was his cousin and that she was not an employee of the Respondent. It was the duty of the Respondent to justify the allegations of the bribery towards the Claimant but no evidence was provided. 101.The Claimant had a right to be properly remunerated as per section 10 of the Employment Act and section 41(2) (a) of the Constitution. This position was stated in Metto v Mediheal Group of Hospitals (Cause E052 of 2024) [2025] KEELRC 2734 (KLR) (3 October 2025) (Judgment) where the court held as follows:Withholding of salary strikes at the core of the employment relationship. Section 17(1) of the Employment Act obliges an employer to pay wages when they fall due, and subsection (10) criminalizes failure to do so. Further, Article 41 of the Constitution guarantees every worker the right to fair labour practices, which includes timely payment of wages. 102.Therefore, failure to increase the Claimant’s salary as was the norm, transferring him without consulting him, accessing his Mpesa statement illegally, subjecting him to a sham disciplinary hearing all amounted to his constructive dismissal. 103.The court also noted that from 20th August, 2019 when the Claimant attended the first disciplinary hearing without upfront reason for the meeting to 20th September, 2019 it was a whole month of pressure from the Respondent to submit his full Mpesa statement while it was the Responsibility of the Respondent to produce the evidence it had against him not the other way round. 104.The Claimant was entitled to ample time to prepare for the hearing, the evidence to be used and attend with a colleague of his choice/ union official. In Kiilu v Isinya Resorts Limited (Cause E022 of 2021) [2022] KEELRC 13240 (KLR) it was held that;An employee is entitled to be given adequate notice to respond to a show cause letter and adequate notice to attend a disciplinary hearing/meeting. Minutes of a disciplinary meeting must be clear on the issues discussed thereat, and must clearly indicate whether the employee was given an opportunity to be heard, and what representation the employee and his fellow employee or union official made. Issues to be discussed at a disciplinary hearing must be the same as in the show cause letter. 105.This pressure coupled with the request that the Claimant writes to Safaricom to issue the Mpesa statement directly to the Respondent who claimed their external investigator had secured the same was unnecessary. This must have forced the Claimant to resign as the trust and confidence in him as an employee of the respondent had been inexorably injured. From the foregoing, it is the court’s view that the Claimant’s service had been constructively terminated within the meaning assigned to it in Western Excavating (ECC) Ltd v Sharp case referred to earlier. Whether the Claimant’s right to privacy was infringed 106.The Claimant alleged that the Respondent infringed on his right to privacy as enshrined in article 31 of the Constitution by illegally acquiring his Mpesa statement and using the same to subject him to a sham disciplinary process. That based on the same the Respondent went ahead to call the Claimant’s cousin Mirriam on 19th July, 2019 before the disciplinary hearing to fish for more evidence if she was an employee of the Respondent based on the said Mpesa statement improperly acquired. 107.The Respondent alleged that since it had allegations of bribery against the Claimant it was justified in getting the Mpesa statement through its external investigators and other authorities. That the right to privacy was not absolute it could be limited. The Respondent failed to prove the allegations of bribery against the Claimant by not producing any report by the external investigator, complaints by the alleged bribe givers any. Further the respondent failed to produce any OB from Police or search warrant from a court of law authorizing access to claimant’s Mpesa records. The intention of infringing on the privacy right of the Claimant was therefore not justified. The Respondent could not limit a constitutional right of the claimant without proper evidence that he was involved in the said bribery allegations. 108.Whereas it is true the right to privacy may be limited as per article 24 of the Constitution, there are parameters to be met. In the case of Ndung'u v Equity Bank Kenya Limited & another (Petition E107 of 2022) [2024] KEHC 4507 (KLR) (Constitutional and Human Rights) (12 April 2024) (Judgment) the court held as follows: _Although Article 31 (c) of the Constitution protects an individual from having information relating to their family or private affairs unnecessarily required or revealed, it is important to acknowledge that this right can be limited where a clear, reasonable and valid justification exists as provided for in Article 24 which among others states that it is permissible if ‘the limitation is authorized by law and to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom.’ 109.In addition, the court in Mwangi v ABSA Bank Kenya PLC (Cause E065 of 2023) [2024] KEELRC 2399 (KLR) (1 October 2024) (Judgment) held that: -117.Even in employment, protection of the employee privacy is imperative. Where there is a breach of an employee's privacy, an employer cannot justify a position that the court lacks jurisdiction and then fail to address where there was a need to collect personal data and information unrelated to the employment…….118.The conduct of the respondent leading into the investigations of the claimant’s private life in the context of matters ongoing at the workplace is not justified. No basis was given for such conduct.119.The claimant was a senior employee of the respondent and whatever conduct he engaged in after office/work hours, where this was found contrary to his letter of appointment and workplace policy, recourse was to invite him to address. Engaging in private investigations and then failing to bring such matters to the claimant to address as an employee was not justified. His constitutional rights under article 31 were breached by the respondent. 110.This court therefore finds and hold that the Claimant’s right to privacy was infringed by the Respondent as there was no valid reason for the limitation such as a court order or tangible evidence of the said suspicions. Whether the Claimant is entitled to reliefs sought. 111.On the prayer of compensation for unfair termination of employment, having found that the Claimant was unfairly terminated the court therefore proceeds to find that he was entitled to compensation for unfair termination under section 49 of the Employment Act. Taking into account the considerations given under section 49(4) of the Employment Act, such as the nature of the termination, the time the claimant had worked for the Respondent which was no doubt a long time of 14 years with exemplary service and good performance among others, the maximum compensation of 12 months’ salary is justified in the circumstances and the court so awards. 112.In this case the salary to be used in computation would be the claimant’s last salary where the basic salary was Kshs. 406,108 plus the mileage allowance of Kshs 66,667 and telephone benefit of Kshs 1,200 to make the gross salary of 473,975/= as per his attached payslips. 113.On the claim for general damages for breach of constitutional right to privacy and exemplary damages the court notes that they are awardable in very special circumstances since they are not among the damages contemplated under section 49 of the Employment Act where the award is compensatory and not general damages in the strict sense of the word. In the above case of Mwangi v ABSA Bank Kenya PLC (Cause E065 of 2023) [2024] KEELRC 2399 (KLR) (1 October 2024) (Judgment) the court awarded general damages of Kshs 5,000,000/= upon the finding breach of claimant’s right to privacy. Considering the recent nature of the decision in the above cited case, similarly in this case the court considers a similar award of Kshs. 5,000,000/- suitable in the circumstances. 114.On the claim for exemplary damages which are punitive in nature this court finds that the Claimant having been awarded the compensatory damages and the general damages it is not reasonable to award him again exemplary damages. The termination of his service albeit circumstantial and egregious is one of the contemplated ends to a contract of employment. The award of maximum compensation under section 49 of the Act as well as general damages reasonably assuages his injured ego. As was observed in the case of Standard Group Limited v Jenny Luesby [2018] eKLR, compensatory awards are not meant to be a punishment for the employer, but rather an attempt to offset the financial loss resulting from the wrongful act of the employer. This claim is therefore disallowed. 115.In conclusion the Claimant’s claim is found merited and is hereby allowed as follows: -a.12 months compensation for unfair termination……………………….Kshs 473,975 x 12= 5,687,700/=b.General damages……………………Kshs 5,000,000/=c.Exemplary Damages.…………….….NILd.Costs of the suit.e.Item (a) shall be subject to taxes and statutory deductions while the total award shall attract interest at court rates from date of judgment until payment in full.Total KSHS 10,687,700/= 116.It is so ordered. DATED AT NAIROBI THIS 29TH DAY OF MAY, 2026DELIVERED VIRTUALLY THIS 29TH DAY OF MAY, 2026ABUODHA NELSON JORUMPRESIDING JUDGE-APPEALS DIVISION