https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1811

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NYERI** **ELRC CAUSE NO. E010 OF 2025** **JOSHUA NDIRANGU MUMO…………………….………………CLAIMANT** **VERSUS** **TETU ABERDARE WATER & SANITATION COMPANY…..RESPONDENT** **JUDGMENT** 1. It is common ground that, prior to the termination of his employment, the Claimant was employed by the Respondent as the Head of Technical Services. The Claimant states that he was initially engaged by the Respondent under a three-year renewable contract dated 16th November 2017, which was subsequently renewed for a further three-year term by a letter dated 30th November 2020. Thereafter, the contract was renewed for an additional three years through a letter dated 15th November 2024, which remained the operative contract at the time of the termination of his employment. The Claimant attributes the successive renewals of his contract to his satisfactory performance. 2. The Claimant further avers that throughout the period of his employment, he was never subjected to any disciplinary proceedings on account of poor performance or gross misconduct. It is the Claimant’s case that the termination of his employment was unlawful and unfair. Consequently, he seeks the following reliefs against the Respondent: 3. ***A declaration that the Respondent unfairly and unlawfully terminated the Claimant from employment.*** 4. ***12 months general damages for unfair and unlawful termination of employment totalling Kshs 1,583,748.00*** 5. ***Three months' salaries in lieu of notice amounting to Kshs 395,937.00*** 6. ***Gratuity totalling Kshs 354,885.00 deposited to CPF from 1st January 2024 to 30th March 2025.*** 7. ***Certificate of service.*** 8. ***Costs of the suit.*** 9. ***Interest at court rates on b, c, d, and f; and*** 10. ***Any other relief this court may deem just and expedient.*** 11. In its Response to the Statement of Claim, the Respondent denies that the Claimant’s termination was unlawful or unfair. 12. The Respondent avers that the Claimant’s employment was terminated on account of gross misconduct, alleging that he misrepresented the progress and status of the Gura Project, thereby occasioning poor service delivery to customers in Aguthi and Gaki locations, loss of revenue, and a failure to provide the requisite documentation and evidence of performance as stipulated under his performance contract. 13. The Respondent further contends that the Claimant had previously been warned regarding his performance. To this end, the Respondent prays that the Claimant’s Claim be dismissed with costs. 14. In his Reply to the Response, the Claimant denies the Respondent’s averments, maintaining that at all material times, he gave the correct status of the Gura project and never gave any misleading information. On that basis, the Claimant prays that the Respondent’s Response be struck out with costs. 15. The matter proceeded for hearing on 17th March 2026, during which both parties adduced oral evidence in support of their respective cases. **Claimant’s Case** 1. The Claimant testified in support of his case, and for starters, he adopted his witness statement to constitute his evidence in chief. He further produced the list and bundle of documents filed on his behalf as his exhibits before the Court. 2. The Claimant testified that, under the terms of his contract of employment, he was functionally answerable to the Respondent’s Managing Director. 3. The Claimant further testified that by a letter dated 29th January 2025, he was placed on compulsory leave on allegations that he had provided misleading information to the Board of Directors regarding the Gura Project and had failed to furnish adequate evidence in support of his performance contracts. 4. The compulsory leave was initially to run from 1st February 2025 to 28th February 2025 but was subsequently extended indefinitely through a letter dated 27th February 2025. 5. According to the said letters, the purpose of the compulsory leave was to facilitate a thorough and impartial review of the issues under investigation and to safeguard the integrity of the ongoing inquiry. 6. The Claimant averred that although the notice of compulsory leave indicated that the findings of the investigations and the ensuing course of action would be communicated to him, the said findings were never disclosed to him. 7. He further stated that on 16th March 2025, he received a letter inviting him to appear before a special full Board meeting. The letter indicated that the meeting had been convened pursuant to a resolution concerning his compulsory leave and that he would be afforded an opportunity to respond to the concerns raised in the letters dated 29th January 2025 and 27th February 2025. 8. The Claimant contended that the invitation letter neither specified the allegations against him nor disclosed the evidence intended to support those allegations, thereby impairing his ability to adequately prepare his defence. 9. He further testified that the invitation was transmitted to him by the Respondent’s Secretary via WhatsApp on 16th March 2025, leaving him only Monday, Tuesday and Wednesday to prepare for the meeting. In his view, the notice period was unreasonably short in the circumstances. 10. The Claimant also averred that he was denied access to documents necessary for his defence, as the notice of compulsory leave expressly barred him from accessing the Respondent’s premises, internal systems and communication platforms. 11. He stated that notwithstanding the short notice, he confirmed his availability and attended the meeting, which was chaired by the Chairperson of the Board, with the Managing Director serving as secretary and who had also authored the letters placing him on compulsory leave. 12. According to the Claimant, he was surprised to find the Gura Project contractor, an engineer from KTDA Power Company Limited, and the Project Manager present at the meeting, as their attendance had not been disclosed in the invitation letter. 13. The Claimant explained that the Gura Project involved the relocation of the Respondent’s water intake at Gura River and was financed by KTDA Power Company Limited. He stated that the relocation became necessary following the construction of a water channel by KTDA Power Company Limited, which diverted a substantial volume of water to its power project, thereby reducing the water available to the Respondent’s customers. 14. He further testified that, at the commencement of the meeting, the contractor, the KTDA project engineer and the Project Manager made presentations to the Board in his absence. Thereafter, he was invited to address the Board alone. He contended that he was not informed of his right to be accompanied by a fellow employee or representative of his choice. 15. The Claimant further stated that during the proceedings, the Chairperson handed him a letter containing several allegations against him. He testified that the letter was immediately taken away from him by the Chairperson after he had finished reading it. 16. It was the Claimant’s position that the disciplinary hearing was deliberately rushed to his detriment. 17. He further stated that by a letter dated 24th March 2025, he was informed that his employment had been terminated with effect from 1st April 2025. 18. The Claimant testified that one of the findings relied upon in the termination letter was that he had deliberately misrepresented information to the Board regarding the progress and status of the Gura Project. He contended that he was never furnished with particulars of the alleged misrepresentation to enable him to challenge the accusation. 19. According to the Claimant, the Gura Project was financed by KTDA Power Company Limited and overseen by a Technical Committee, of which he served as Chairperson of the Implementation Committee. He stated that the committee comprised an engineer from KTDA, a representative of the Nyeri County Department of Water, a representative of the Tana Water Works Development Agency, and the contractor’s Project Manager. 20. He further testified that members of the Implementation Committee reported to their respective institutions on the committee’s deliberations and recommendations, while he reported directly to the Managing Director. Consequently, he contended that the Managing Director could not legitimately allege that he had been misled regarding the progress of the project. 21. The Claimant further averred that he personally prepared a technical report on the progress and status of the project, which highlighted numerous discrepancies between the tender specifications and the works implemented on the ground. 22. He explained that in projects of such magnitude, a contractor is ordinarily required to obtain a Certificate of Substantial Completion before the commencement of the defects liability period and, thereafter, a final Certificate of Completion. According to him, none of these documents had been issued before the proposed commissioning and handover of the project, rendering the intended handover procedurally irregular. 23. He further testified that one Engineer Makanga of KTDA Power Company Limited wrote directly to the Chairperson of the Respondent’s Board requesting her intervention to facilitate a smooth handover of the Gura Project. 24. The Claimant further stated that on 20th October 2024, he had accompanied the Board Chairperson, several Board members and an external water consultant on a site visit to the project, the purpose of which was to assist the Chairperson in determining the way forward following an email dated 14th October 2024. 25. He testified that following the visit, the consultant was instructed by the Chairperson to prepare an independent report on the project’s status, which report was never shared with him. 26. The Claimant further averred that throughout his employment, his performance ratings consistently exceeded expectations. He further stated that during his seven years of service, he had never been subjected to disciplinary proceedings for poor performance, gross misconduct or neglect of duty. In his view, the two renewals of his contract were a clear recognition of his satisfactory performance. 27. The Claimant further averred that he submitted his performance contract in time but the Respondent failed to appraise his performance. That he was issued with a Notice to Show Cause why he had not submitted his mid-year performance contract. He responded to the show cause. In his view, his performance contract was disregarded and never appraised since he was never issued with a performance appraisal report by his immediate supervisor. 28. The Claimant contended that the termination letter expressly stated that the Respondent’s decision was final, thereby denying him any opportunity to appeal. He asserted that this violated his right to a fair hearing. **Respondent’s Case** 1. The Respondent presented its case through **Anthony Ndegwa Githae**, who testified as RW1. Mr. Githae identified himself as the Respondent’s Internal Auditor. Equally, he adopted his witness statement to constitute his evidence in chief and produced the Respondent’s initial and supplementary lists and bundles of documents as exhibits before the Court. 2. RW1 further testified that he serves as the Chairperson of the Respondent’s Staff Performance Committee. 3. It was RW1’s evidence that the Claimant’s employment was terminated on account of gross misconduct, specifically for allegedly misleading the Respondent regarding the progress and status of the Gura Project and for failing to provide documentation and evidence of performance as required under his performance contract. 4. RW1 testified that the Claimant allowed the installation of 315mm diameter pipes in place of the 355mm diameter pipes specified in the Bill of Quantities, notwithstanding the Respondent’s position declining pipes of a lesser diameter. 5. He further averred that the Claimant devoted only 40% of his working time to the Respondent’s affairs, while the remaining 60% was spent pursuing academic studies, to the detriment of the Respondent’s operations. 6. According to RW1, the misleading information attributed to the Claimant related to matters within his knowledge concerning the pipe specifications and other works undertaken under the Gura Project. 7. RW1 further testified that the Claimant attended and was accorded a hearing before the full Board during a disciplinary meeting held on 20th March 2025, at which he allegedly admitted to the acts constituting gross misconduct. 8. He also stated that prior to the termination of his employment, the Claimant had received warnings regarding his performance and had been notified of the possibility of disciplinary action, including termination. **Submissions** 1. The Claimant submitted that the Respondent had no justification to summarily dismiss him from employment and, further, that the Respondent failed to adhere to the requirements of procedural fairness prior to effecting the dismissal. In support of this position, reliance was placed on the case of ***Walter Ogal Anuro v Teachers Service Commission [2013] eKLR.*** 2. The Claimant stated in further submission that he had been invited to attend a full Board meeting and not a disciplinary hearing. He contended that at no point did the Respondent inform him that the invitation was for purposes of a disciplinary hearing. 3. It was further submitted that the Claimant was not accorded a fair hearing as the invitation letter ought to have expressly stated that he was being invited to a disciplinary hearing, set out the charges levelled against him, furnished him with the evidence the Respondent intended to rely upon, informed him of his right to be accompanied by a fellow employee of his choice during the hearing, and afforded him sufficient time to prepare his defence. 4. In the same vein, the Claimant submitted that the invitation letter did not inform him that the Respondent was considering termination of his employment, nor did it disclose the reasons upon which such contemplated action was based. 5. The Claimant further submitted that he was never supplied with any investigation report at any material time. In his view, the Respondent’s failure to furnish him with the investigation report undermined the procedural fairness of the process culminating in his summary dismissal. 6. It was the Claimant’s position that the full Board meeting was merely an extension of the investigations being undertaken against him and did not constitute a disciplinary hearing. He contended that no disciplinary hearing was ever conducted prior to the issuance of the summary dismissal letter. 7. The Claimant further submitted that the Respondent failed to prove the allegation that he had provided misleading information to the Board regarding the progress and status of the Gura Project. According to the Claimant, the accusation that he had “provided misleading information” was defective and ambiguous. He argued that the Respondent was under an obligation to particularize the alleged misleading information in order to enable him understand the allegations against him and effectively challenge the same. 8. The Claimant further posited that the Respondent did not adduce any correspondence notifying him that he had allegedly misled the company regarding the diameter of the pipes. In his view, the allegation therefore remained unproven. 9. It was further submitted that, by the time he was summarily dismissed, the Respondent had not issued him with any performance assessment report. The Claimant further posited that the Respondent did not deny receiving the evidence he had submitted in support of his performance. 10. It was the Claimant’s position that the Respondent failed to appraise and grade his performance, communicate the outcome thereof, provide guidance on areas requiring improvement, and, in the event of continued unsatisfactory performance, notify him that termination was being contemplated and invite him to a hearing in the presence of a fellow employee of his choice. The Claimant contended that the Respondent bypassed this process and, consequently, failed to accord him a fair hearing before summarily dismissing him on grounds of poor performance. In support of this argument, reliance was placed on the decisions in ***Mukala v Ol Tukai Lodge Ltd (Cause No. 823 of 2010) [2013] KELC 634 (KLR)*** and ***Maina Mwangi v Thika Coffee Mills Ltd [2012] eKLR.*** 11. The Claimant further posited that the Respondent’s denial of his right of appeal amounted to a violation of his right to a fair hearing. 12. On its part, the Respondent submitted that the Claimant admitted the allegation levelled against him, namely, that he had failed to submit adequate evidence in support of his performance contract as required under the terms of his contract of employment. 13. The Respondent further submitted that the Claimant was fully aware that he was required to respond to and be heard on the issues raised in the Notice to Show Cause, including the concerns relating to the pipes, and that the Board was to render its decision after considering his representations. 14. In support of its position, the Respondent relied on the decision in ***Kennedy Maina Mirere v Barclays Bank of Kenya Limited [2018] eKLR.*** 15. The Respondent further contended that it had discharged its statutory burden of justifying the termination of the Claimant’s employment, having established a valid reason for the dismissal and in light of the Claimant’s admission of the allegations against him. To buttress this argument, the Respondent relied on the decisions in ***Anthony Kangangi v Mathira Water and Sanitation Company [2019]*** ***eKLR*** and ***Karume v Tana Water Works Development Agency [2025] KEELRC (1412) KLR.*** **Analysis and Determination** 1. Having considered the pleadings by both parties, the evidentiary material on record, as well as the rival submissions, the Court has isolated the following issues for determination: 2. **Whether the Respondent has demonstrated that there existed a valid and fair reason for terminating the Claimant’s employment;** 3. **Whether the Claimant was accorded procedural fairness prior to the termination of his employment; and** 4. **Whether the Claimant is entitled to the remedies sought.** **Valid and fair reason for termination?** 1. ***Section 43(1) of the Employment Act*** places the burden upon an employer to prove the reason or reasons for terminating an employee’s employment. Where the employer fails to discharge this burden, the termination is deemed unfair within the meaning of Section 45. 2. In addition, ***Section 45(2)(a) and (b) of the Employment Act*** provides that a termination of employment is unfair unless the employer demonstrates that the reason for the termination was valid and fair and that it related to the employee’s conduct, capacity, compatibility, or was based on its operational requirements. 3. Against this statutory backdrop, the Respondent herein was under an obligation to establish that it had a valid and fair reason for terminating the Claimant’s employment and that such reason was connected to his conduct and performance. 4. With that being said, the Court now turns to examine the reasons relied upon by the Respondent in terminating the Claimant’s employment in order to determine whether they meet the statutory threshold of validity and fairness contemplated under ***Section 45(2)(a) and (b) of the Employment Act.*** 5. A perusal of the letter of summary dismissal reveals that the Claimant’s employment was terminated on the grounds that he deliberately misrepresented to the Respondent’s Board of Directors the progress and status of the Gura Project. The letter further accused the Claimant of failing to provide evidence in support of his performance, thereby leaving the Respondent without a basis upon which to assess whether he had achieved the agreed performance targets. The Claimant was also faulted for allegedly failing to discharge the key responsibilities assigned to him. 6. With respect to the allegation that the Claimant failed to provide tangible evidence to substantiate his performance, he (Claimant) has maintained that he submitted his performance report within time, but the Respondent failed to carry out the requisite evaluation. The Claimant further stated that the supporting evidence was submitted in a separate file. 7. From the record, it is evident that the Respondent’s Managing Director, through an internal memo dated 21st November 2024, directed the Claimant, together with the Commercial Manager and the Human Resources Manager, to prepare a half-year evidenced performance contract report on or before 3rd January 2025. A reminder to that effect was issued on 23rd December 2024. 8. It is further apparent that the Claimant was subsequently issued with a Notice to Show Cause dated 13th January 2025, requiring him to explain why disciplinary action should not be taken against him for failure to submit the half-year performance contract report. 9. The Claimant responded to the Notice to Show Cause on 14th January 2025, in which he admitted forwarding his appraisal report to the Respondent’s Managing Director on 2nd January 2025 without the supporting evidence, explaining that some reports had delayed reaching his desk. He further indicated that he had since submitted the supporting evidence in a separate file to the Managing Director. 10. The Respondent did not dispute receiving the said evidence, albeit belatedly, in support of the Claimant’s performance report. 11. Further, in the event the Respondent considered the evidence submitted by the Claimant to be inadequate to support his performance evaluation, the prudent course of action would have been to assess his performance against the material provided in accordance with its Human Resources Policies and Procedures Manual and to prepare a corresponding appraisal report which would then have been shared with the Claimant. This does not appear to have been done in the present case. 12. It was therefore not fair for the Respondent to accuse the Claimant of failing to submit adequate evidence in support of his performance evaluation without producing an accompanying appraisal report to demonstrate the alleged gaps in the Claimant’s performance. In any event, clause F16 of the Respondent’s Human Resources Policies and Procedures Manual granted the Claimant a right of appeal against the performance assessment in the event of dissatisfaction. 13. Accordingly, the Court is not persuaded that the allegation regarding the Claimant’s alleged failure to provide evidence in support of his performance evaluation constituted a valid and fair reason for the termination of his employment. 14. Turning to the allegation concerning the Gura project, the Respondent, in its pleadings and evidence before the Court, asserted that the Claimant allowed the installation of 315 mm diameter pipes instead of the 355 mm diameter pipes specified in the bill of quantities, contrary to its position that pipes of a smaller diameter ought not to have been used. 15. It is common ground that the Claimant served as the Chairperson of the Gura Project Implementation Committee. According to the Claimant’s testimony, the committee comprised an engineer from KTDA, a representative from the Water Department of the County Government of Nyeri, a representative from the Tana Water Works Development Agency, and the contractor’s Project Manager. 16. The Claimant maintained that he regularly reported to the Respondent’s Managing Director and, consequently, could not be said to have misled the Respondent regarding the progress of the Gura Project. 17. In support of its case, the Respondent exhibited copies of letters dated 20th April 2023 and 27th April 2023 in which its Managing Director informed the General Manager of KTDA Power Company that the Respondent had requested that the pipes delivered on 15th April 2023 should not be installed because the implementation committee had not been invited to inspect their size and class. The Managing Director further noted that the contractor had delivered 315 mm diameter pipes instead of the specified 355 mm diameter pipes. He expressly stated that the Board had resolved that only pipes of the correct class and size would be delivered, inspected and accepted in accordance with the Public Procurement and Asset Disposal Act. 18. The Claimant, on his part, produced minutes of a Technical Committee meeting held on 5th May 2023, during which the proposed substitution of the 355 mm diameter pipes with 315 mm diameter pipes was discussed. The minutes indicate that the committee concluded that the 315 mm diameter pipes were technically suitable for the project and recommended that the contract be amended to accommodate the variation. It was further agreed by the Committee that the contractor would await further directions from the Respondent and KTDA before proceeding with the remaining works. 19. It is noteworthy that the said minutes bear the Claimant’s signature, in his capacity as the Chairperson of the Committee. Equally notable is the fact that, notwithstanding the Claimant’s assertion that he did not approve the installation of the 315 mm diameter pipes, the minutes do not reflect any dissent or objection on his part regarding the committee’s resolution. In essence, the decision to use 315 mm diameter pipes in place of the 355 mm pipes appears to have been a collective resolution of the Implementation Committee, of which the Claimant was the chair. 20. The record further shows that, following the implementation committee meeting of 5th May 2023, one ***Geofrey Makanga*** sent an email dated 26th May 2023 to one ***Wanjihia*** indicating that KTDA was desirous of seeing the project completed and was therefore directing the contractor to proceed with the outstanding works on the basis that the 315 mm diameter pipes were suitable for the project. He further stated that he would recommend that the Respondent unanimously support that course of action. 21. It is evident, however, that the Respondent rejected the said proposal. This is discernible from the letter dated 30th May 2023 in which the Respondent’s Managing Director reiterated the Respondent’s opposition to the use of 315 mm diameter pipes in place of the specified 355 mm diameter pipes. The letter concluded by stating that the Respondent was distancing itself from the project until materials conforming to the required specifications were delivered and duly inspected. 22. The material on record nonetheless indicates that, in the end, the 315 mm diameter pipes were installed instead of the specified 355 mm diameter pipes. The Claimant admitted as much during cross-examination. 23. As the Respondent’s representative and Chairperson of the Implementation Committee, the Claimant served as the Respondent’s eyes and ears within the Gura project. Consequently, it was incumbent upon him to promptly inform the Respondent of any departure from the position adopted by the Board, particularly in relation to the specifications of the pipes earmarked for installation. 24. Although the Claimant produced a report dated 4th October 2024, referenced ***“TECHNICAL PROGRESS REPORT FOR THE TEAWASCO AGUTHI INTAKE RELOCATION PROJECT”,*** it is noteworthy that the said report is not addressed to any specific recipient. As such, it is not clear whether the same was intended for the Respondent’s Managing Director or the Respondent’s Board. 25. In any event, it is apparent that the said report, in which the Claimant urged the Respondent to reject all components of the project on the basis that they did not meet the minimum technical standards, was prepared approximately one (1) year and four (4) months after the Respondent’s Managing Director, in his letter dated 30th May 2023, had reiterated the Respondent’s position that the contractor should not undertake any project until the correct materials of the required specifications were delivered and inspected. 26. It is reasonably expected that by the time the Claimant prepared the report dated 4th October 2024, the project had substantially progressed, if not been completed. This, therefore, raises the question as to why the Claimant did not promptly inform the Respondent that 315 mm diameter pipes had been installed instead of the required 355 mm diameter pipes, contrary to the Respondent’s position on the matter. 27. The foregoing further discounts the Claimant’s assertion that he consistently reported to the Respondent’s Managing Director and kept him duly apprised of the status of the project. Had that been the case, the Claimant would have submitted the report dated 4th October 2024, or any similar report, much earlier and well before the installation of the 315 mm diameter pipes. 28. In view of the foregoing, and applying the standard of proof on a balance of probabilities, the Court finds that the Respondent has established that it had a valid and fair reason for terminating the Claimant’s employment arising from his involvement in the Gura project. **Procedural fairness?** 1. Fair procedure in termination of employment is generally provided for by ***Section 45(2)(c) of the Employment Act,*** while ***Section 41*** prescribes the specific procedural safeguards that an employer must observe before terminating an employee’s employment on grounds of misconduct, poor performance, or physical incapacity. Specifically, the employee must be notified of the allegations against them and given an opportunity to make representations in the presence of a fellow employee or a shop-floor union representative of their choice. 2. In the present case, it is evident that the Claimant was initially placed on compulsory leave with effect from 1st February 2025 to 28th February 2025. This was subsequently extended indefinitely through a letter dated 27th February 2025. 3. The Claimant was informed that the basis for the compulsory leave was his alleged involvement in the Gura project, his alleged provision of misleading information to the Board of Directors regarding the project, and his purported failure to provide adequate evidence in support of his performance contract as required. 4. The record bears that the Claimant was thereafter invited to appear before a Special Full Board meeting on 20th March 2025 through a letter dated 13th March 2025. The Claimant was advised that the meeting had been convened pursuant to a resolution relating to his compulsory leave and that he would be afforded an opportunity to respond to the concerns raised in the letter dated 29th January 2025, through which he had been placed on compulsory leave. 5. Seemingly, the Claimant’s employment was subsequently terminated following the Special Full Board meeting held on 20th March 2025. 6. What emerges from the sequence of events leading to the Claimant’s termination from employment is that the Respondent did not clearly notify him that it was contemplating the termination of his employment on the basis of the allegations levelled against him. 7. Further, it is discernible from the letter dated 13th March 2025 that the Claimant was not informed of the true nature of the meeting scheduled for 20th March 2025. From a plain reading of the said letter, it is not apparent that the Claimant was notified that the meeting was a disciplinary hearing that could culminate in the termination of his employment. 8. It is therefore more than probable that the Claimant attended the meeting of 20th March 2025 without a full appreciation of its true nature and the possible consequences thereof. 9. Given that the disciplinary process was capable of culminating in the termination of his employment, it was only fair and proper that the Claimant be notified of the seriousness of the Special Full Board meeting to enable him adequately prepare himself. After all, his means of livelihood was at stake. On this issue, I am guided by the decision in ***Nebert Mandala Ombajo v Institute of Certified Public Accountants of Kenya (ICPAK), Nakuru Civil Appeal No. 62 of 2018***, where the Court of Appeal stated as follows: - ***“Disciplinary proceedings are a grave matter for an employee as the consequences may be catastrophic to the employee’s life. In the case of the appellant, the complaints against him were serious, and there is no doubt that he needed sufficient time to prepare psychologically, and if need be, get the best advice that he could.”*** 1. The Respondent would not have suffered any prejudice had it informed the Claimant of the true import of the meeting held on 20th March 2025. This would have enabled the Claimant to adequately prepare for the said hearing. 2. In the circumstances, the disciplinary hearing of 20th March 2025 can only be characterised as an ambush. 3. Further, by failing to disclose the true nature of the meeting of 20th March 2025, the Respondent also breached a mandatory requirement under ***Section 41 of the Employment Act,*** as it did not notify the Claimant of his right to be accompanied by a fellow employee of his choice at the said meeting. 4. In addition to the foregoing, there is no evidence that the Claimant was made aware of the specific allegations he was required to respond to during the meeting of 20th March 2025, save for a general reference to his compulsory leave. 5. As can be discerned from the minutes of the meeting held on 20th March 2025, the Claimant was required to address the issue of the installation of 315 mm diameter pipes instead of 355 mm. Prior to the meeting, however, the Claimant had only been broadly accused of misleading the Respondent’s Board of Directors, without any specification as to how the alleged misrepresentation was made. 6. Compounding the foregoing, the Respondent did not disclose to the Claimant the findings of any investigation undertaken during his compulsory leave. Such findings would have enabled him to adequately respond to the allegations raised against him during the disciplinary hearing. 7. Needless to state, the process culminating in the termination of the Claimant’s employment was fundamentally flawed. 8. Taking into account the totality of the circumstances herein and the spirit of ***Section 41 of the Employment Act***, the Court finds that the Respondent failed to adhere to the requirements of procedural fairness in effecting the Claimant’s termination from employment. Ultimately, the Claimant was not accorded a fair hearing prior to the termination of his employment. **Reliefs?** 1. As the Court has found that the Respondent, despite demonstrating that it had a valid and fair reason for terminating the Claimant’s employment, failed to accord him procedural fairness, the Claimant is awarded compensation equivalent to three (3) months’ gross salary. In arriving at this award, the Court has considered the length of the employment relationship and the Claimant’s contributory conduct leading to the termination of the employment relationship. 2. Regarding the claim for gratuity, it is evident that the Respondent does not dispute the Claimant’s entitlement thereto. However, it is also apparent that the Claimant’s gratuity contributions were remitted to the CPF. In the circumstances, the Respondent, as the employer, shall, where required, facilitate the Claimant's access to his gratuity payable from the CPF. 3. As the employment relationship is not in dispute, the Claimant is entitled to a certificate of service pursuant to ***Section 51(1) of the Employment Act.*** **Orders** 1. In the final analysis, judgment is entered in favour of the Claimant against the Respondent, and the Court makes the following final orders: - 2. **A declaration is hereby issued that the Claimant’s termination from employment was procedurally unfair.** 3. **The Claimant is awarded Kshs 395,937.00 as compensation for unfair termination of employment, being equivalent to three (3) months’ gross salary.** 4. **Interest on the sum in (b) shall accrue at court rates from the date of judgment until payment in full.** 5. **The Respondent shall bear the costs of the suit.** 6. **The Respondent shall issue the Claimant with a certificate of service within fifteen (15) days from the date of this judgment.** **DATED, SIGNED** and **DELIVERED** at **NYERI** this**26th day**of **June** 2026. ……………………………… **STELLA RUTTO** **JUDGE** **In the presence of**: For the Claimant Mr. Gitahi For the Respondent Mr. Wahome Court Assistant Ndati **ORDER** In view of the declaration of measures restricting court operations due to the COVID-19 pandemic and in light of the directions issued by His Lordship, the Chief Justice on 15th March 2020 and subsequent directions of 21st April 2020 that judgments and rulings shall be delivered through video conferencing or via email. They have waived compliance with **Order 21 Rule 1** of **the Civil Procedure Rules**, which requires that all judgments and rulings be pronounced in open court. In permitting this course, this court had been guided by Article 159(2)(d) of the Constitution which requires the court to eschew undue technicalities in delivering justice, the right of access to justice guaranteed to every person under Article 48 of the Constitution and the provisions of **Section 1B** of the **Civil Procedure Act (Chapter 21 of the Laws of Kenya)** which impose on this court the duty of the court, inter alia, to use suitable technology to enhance the overriding objective which is to facilitate just, expeditious, proportionate and affordable resolution of civil disputes. **STELLA RUTTO** **JUDGE**