Mwangi v Del Monte Kenya Ltd (Cause E777 of 2024) [2026] KEELRC 2104 (KLR) (21 July 2026) (Judgment)

 **REPUBLIC OF KENYA** **IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT** **NAIROBI** (ON Makau J on 21st July 2026) **CASE NO. E777 OF 2024** **SIMONB WACHIRA MWANGI…………………………….CLAIMANT** **VERSUS** **DEL MONTE KENYA LIMITED….….…………………RESPONDENT** **JUDGMENT** **Introduction** 1. By a Statement of Claim dated 1st August 2024, the Claimant sued the Respondent for unfair termination of his employment after 27 years service. He alleged that the termination was not grounded by valid reason and fair procedure was not followed. Therefore, he prayed for the following reliefs: - 2. ***A declaration that the termination of employment was unfair, unlawful and wrongful.*** 3. ***Compensation for unfair/wrongful termination of employment amounting to twelve months pay that is Kshs. 1,665,033.72/=.*** 4. ***An award of general damages for breach of legitimate expectations and breach of contract for expected years of service up to age of retirement being and Pay for the remaining contractual period of 7 years amounting to Kshs 11,655,168/=.*** 5. ***An order of assessment and payment of all wages owed to the claimant for the acting positions of senior Departmental Head-Security and Superintendent -Security from the year 2010-2023 when the Claimant was relieved of duties.*** 6. ***Unpaid Salary arrears for the month of December 2023 amounting to Kshs. 138, 752.81/-.*** 7. ***One months' salary in lieu of notice amounting to Kshs. 138, 752.81.*** 8. ***Service pay for the period worked amounting to Kshs. 3,746,325.87/-.*** 9. ***Pay for untaken leave for the entire period worked and untaken leave at Kshs. 138,752.81 x 27 years Kshs. 3,746,325.87/-.*** 10. ***A fine of Kshs. 100,000/- against the respondent for failure to comply with mandatory provisions of section 5191), (2) and (3) of the Employment Act, 2007.*** 11. ***An award of punitive damages in favour of the Claimant/Damages for breach of the constitutional rights to fair labour practices.*** 12. ***Underpayment/Payment/compensation for the two additional roles for period of thirteen (13) years.*** 13. ***Exemplary damages.*** 14. ***Payment for off days worked.*** 15. ***Payment for public holidays worked for the last thirteen years.*** 16. ***Unpaid Leave allowance.*** 17. ***Unpaid overtime.*** 18. ***Pension dues as per RBA rules.*** 19. ***Costs and interests.*** 20. ***Any other relief that the court may deem appropriate to grant.*** 21. The Respondent filed a Memorandum of Response dated 20th November 2024 admitting that it terminated its employment relationship with the Claimant but denied, that the same was unlawful. It averred that the employment was terminated for valid reasons and a fair procedure followed. It averred that it paid the Claimant all the terminal and denied having engaged in unfair labour practices. Therefore, it prayed for the dismissal of the suit with costs. 22. The Claimant filed a Reply to the Memorandum of Response dated 25th November 2024 joining issues with the Respondent's response and reiterating the contents of the Statement of Claim. **Evidence** 1. The Claimant testified as CW1 and adopted his witness statement dated 1st August 2024 as his evidence in chief. He also produced a bundle of 27 documents in the list dated 1st August 2024 as exhibits. The 27 documents were marked as exhibits 1-27 respectively. 2. In brief, his evidence was that he was employed by the Respondent on a permanent basis from 10th March 1997 as a Security Guard and rose through the ranks to the position of Security Foreman where he worked until 22nd December 2023. His gross salary was also increased gradually to of Kshs. 138,752.81. 3. On cross examination, he stated that he was employed as a security guard and was promoted to Security Foreman from 1st January 2010. He was given extra duties but he had not filed any supporting document to prove the additional duties. For 14 years he kept asking for formal appointment since 2010. He was aware that section 89 of the Employment Act provides for limitation period of 3 years. 4. He confirmed that his gross salary was Kshs.138,752.81 and that page 50 was his pay slip for August 2023. He also confirmed that his gross salary varied according to months but admitted that there were consistent figures in the payslips being basic pay of Ksh.102,352.35 and transport of Kshs.9,100 = Ksh.111,452.35. 5. He confirmed that one of his duties was to ensure protection of the Respondent's pineapple farm. He conceded that there was widespread theft of pineapples which was a serious offence. He admitted that theft was an occurrence during his tenure but contended that it was not under his watch. He further conceded that it was not unreasonable for the employer to suspect him for theft that was happening while he was the Security Foreman. 6. He confirmed that page 18 of the Respondent's bundle was a procedure manual on disciplinary procedure and that it was part of his employment contract. He also confirmed that page 23 clause 12 provided for suspension pending investigation and further confirmed that he was issued with a suspension letter and a show cause notice. 7. He admitted that he attended a disciplinary hearing on 20th December 2023 and signed the attendance sheet. Subsequently, he received a termination letter dated 22nd December 2023 which cited the reason for the termination and listed his terminal dues. He appealed the decision to terminate his employment but he did not know whether the policy allowed for an appeal. The appeal was rejected and the termination upheld. He admitted that he was issued with a certificate of service but he was not paid the dues indicated in the termination letter. 8. He confirmed that pages 25-26 of the Respondent's bundle was a pay roll showing basic salary of Kshs.111,452.35 and a total of Kshs.250,680.61 less deduction leaving a net of Kshs.182,493.13. He confirmed that page 27 was another pay roll showing a payement of Ksh.182,493 while page 28 was a Remittance Advice to Azima Sacco. He admitted that he had a Sacco loan. 9. He contended that he was dismissed from employment because the Respondent wanted to outsource security services. He conceded that outsourcing of labour was not an offence provided that employees are released through a fair procedure. He stated that he did not know whether other employees who were declared redundant filed a suit. Finally, he admitted that he had not filed medical evidence to prove he had blood pressure issues. 10. In re-examination, he stated that the real reason for his dismissal was that the company wanted to outsource labour since that is what happed within months after his dismissal. He confirmed that he never received the money in the payroll documents mentioned above and that the payee bank account indicated was not his. 11. He confirmed that the show cause required him to respond within 72 hours, and that he was not informed of a right to appear with a witness. He further confirmed that he never attended the disciplinary hearing with a witness and denied ever requesting Miano to accompany him during the hearing. He maintained that he was not given any investigation report of the alleged theft and no witness testified about the alleged theft. 12. Stephen Nyamoti Thomas testified as CW2 and adopted his witness statement dated 1st August 2024 as his evidence in chief. He stated that he used to work for the Respondent and that the Respondent outsourced security from G4S company two months after dismissing him. 13. On cross examination, he stated that he was dismissed together with the Claimant in December 2023 on allegation that all the security guards were colluding with thieves. He confirmed that he had filed his own suit and conceded that it was not an offence for the Respondent to outsource security services. 14. John Miano Warutere testified as CW3 and adopted his witness statement dated 1st August 2024 as his evidence in chief. He stated that he worked for the Respondent for 33 years, 27 of which, he worked with the Claimant. His services were terminated on redundancy and the company outsourced security from G4S company. 15. On cross examination, he confirmed that he was laid off on 4th March 2024 while the Claimant was dismissed in December 2023. He attended the disciplinary hearing for the Claimant in December 2023 but he was not his witness. He was asked questions about the Claimant as per page 17 of the Respondent's bundle and he signed the minutes. 16. He confirmed that his statement during the disciplinary hearing indicated that he was a foreman and the Claimant’s supervisor but contended that to be an error as the Claimant was his senior. He confirmed that he sued the respondent for his redundancy but conceded that it was not wrong for the company to outsource service provided that a fair procedure is followed. 17. In re-examination, he stated that the Respondent first terminated the senior guards and thereafter declared redundancy of the rest of the guards in March 2024. He stated that he was not the Claimant's witness during the disciplinary hearing and clarified that he was called by the person in the control room telling him that HR wanted him to attend the disciplinary hearing. He learned about the hearing that day and the Claimant never called him to accompany him to the hearing. 18. After the close of the Claimant's case, the Respondent called its Industrial Relations Officer, Jacob Mwangi Lesirma, as RW1. He adopted his witness statement dated 20th January 2025 as his evidence in chief but sought to amend paragraph 6 to read Kshs.111,452.35 as the current salary. He also produced 9 documents in the list dated 20th January 2025 as exhibits which were marked as D1-D9 respectively. 19. In brief, his case that the Claimant was a Security Foreman whose duty included preventing theft and damage. During his term as Security Foreman, theft of pineapple was massive. The Claimant was taken through a disciplinary process including a show cause letter and disciplinary hearing followed by dismissal in December 2023. The company followed due procedure and the reasons were valid. 20. He contended that the Claimant never raised any grievance about extra duties assigned to him and denied that the dismissal of the claimant was a calculated move to pave way for outsourcing security services. He further denied that there was racial discrimination in the company. 21. On cross examination, he confirmed that the Claimant worked from 1st January 1997 and he was holding a crucial position as Head of a section. He also confirmed that the Notice to Show Cause required the Claimant to respond within 72 hours and he never asked for more time. He further admitted that the show cause letter never gave any particulars of the Claimant's involvement in the theft. He was not aware whether the Respondent did any investigations on the allegations leveled against the claimant. 22. He confirmed that the Respondent outsourced security services including the position of foreman, which was within the operations. He was not aware whether any theft was reported to the police and he did not seen any report on the theft allegations. He confirmed that the company outsourced security services but he did not know from when. 23. He confirmed that paragraph 9 of his statement was the evidence that the Claimant went on leave during his 27 years and that his leave for 2023 was paid as part of his terminal dues. He confirmed that the Claimant had a disciplinary issue in 1999 as per the warning letter referred to in paragraph 8 of his statement. However, he confirmed that the warning letter was not on the company letterhead and he did not know who signed. 24. He confirmed that the Claimant's job was for 8 hours a day but clarified that the nature of his job required him to be on standby always. He reiterated that there was theft during the Claimant's tenure but admitted there was no evidence to prove that he was involved, and therefore he was dismissed on suspicion. Finally, he confirmed that Mr. Wyne Cook was present during the hearing of the Claimant's disciplinary case and on appeal. 25. In re-examination, he stated that clause 11.2 of the disciplinary procedure manual required response to show cause within 48 hours but the Claimant was given 72 hours. He stated that the Claimant was dismissed on suspicion of theft and averred that the redundancy of the other guards had nothing to do with the Claimant's termination. He confirmed that there were several supervisors below the Claimant but clarified that paragraphs 1 and 2 his termination letter dated 22nd December 2023 detailed the reasons for the termination. Finally, he stated that the Claimant was paid for the leave earned and not taken. **Submissions and the issues for determination** 1. After the close of the hearing, the parties filed written submissions. The Claimant filed his submissions dated 19th March 2026 while the Respondent filed its submissions dated 26th April 2026. Having considered the pleadings, evidence and submissions, it is clear that the claimant worked for the respondent from 1997 to 22nd December 2023 when he was dismissed for alleged gross misconduct. The main issues for determination are: - 2. Whether the dismissal of the Claimant was unfair and unlawful. 3. Whether the reliefs sought are merited. **Analysis** 1. **Unfair and unlawful dismissal** 2. The Claimant contended that the termination of his employment was unfair and unlawful but the Respondent was of a different view. Section 45 (2) of the Employment Act provides that: - **"*(2) A termination of employment by an employer is unfair if the employer fails to prove:*** ***(a) that the reason for the termination is valid;*** ***(b) that the reason for the termination is a fair reason---*** **(i) *related to the employee's conduct, capacity or compatibility; or*** ***(ii) based on the operational requirements of the employer; and*** ***(c) that the employment was terminated in accordance with fair procedure.* "** **Reason** 1. The reason for dismissing the claimant was cited in the termination letter dated 22nd December 2023 as follows: - ***“Reference is made to a show cause letter issued to you on the 13th December 2023 in relation to allegations of being involved in a fraudulent act of facilitating theft of pineapples through planning, coordinating, colluding with security guards and pineapple brokers in exchange for monies.”*** 1. The show cause letter was more candid on the allegation leveled against the Claimant, thus: ***“From the investigations report, you are alleged to be involved in a fraudulent act of facilitating theft of pineapples through planning, coordinating, colluding with security guards and pineapple brokers in exchange for monies.”*** 1. Section 44 (4) of the Employment Act provides that: - ***" (4) Any of the following matters may amount to gross misconduct so as to justify the summary dismissal of an employee for lawful cause, but the enumeration of such matters or the decision of an employer to dismiss an employee summarily under subsection (3) shall not preclude an employer or an employee from respectively alleging or disputing whether the facts giving rise to the same, or whether any other matters not mentioned in this section, constitute justifiable or lawful grounds for the dismissal if-*** ***(g) an employee commits, or on reasonable and sufficient grounds is suspected of having committed, a criminal offence against or to the substantial detriment of his employer or his employer's property.* "** 1. The Claimant denied the alleged offence in his response to the show cause letter, during the disciplinary hearing and also before this court. He submitted that the Respondent failed to establish a valid and fair reason for terminating his employment as required under Sections 43 and 45 of the Employment Act. 2. RW1 testified that the Claimant was dismissed after credible information implicated him in collusion with thieves in the theft of the Respondent's pineapples. The Respondent submitted that the reason for the Claimant's termination was valid, fair and supported by credible evidence. 3. In the case of **Galgala Jarso Jillo v Agricultural Finance Corporation [2021] KEELRC 323 (KLR)** this court held that under section 44 of the Employment Act, one of the grounds that would justify the finding of gross misconduct against an employee is the commission or suspicion of commission of a crime against the property or person of the employer by an employee, and that it does not require the employer to have watertight evidence of the alleged criminal transgression. The further held that all that is required is for the employer to have justifiable and compelling grounds to suspect that the affected employee has engaged in acts that are criminal in nature. 4. In **Kenya Revenue Authority v Rewel Waithaka Gitahi & 2 others [2019] KECA 300 (KLR)** the Court of Appeal held that the standard of proof is on a balance of probabilities, and not beyond reasonable doubt, and all that the employer is required to prove are the reasons that it 'genuinely believed to exist' causing it to terminate the employee's services. 5. In **Nicholas Muasya Kyula v Farmchem Ltd [2012] eKLR** this court clarified that it was not sufficient for an employer to make allegations of misconduct against the employee as the employer is required to have internal systems and processes of undertaking administrative investigations and verifying occurrence of misconduct before deciding to terminate employment. 6. In **Anthony Mkala Chitavi v Malindi Water & Sewerage Company Limited [2013] KEELRC 920 (KLR)** this Court held that although the Respondent may have had reasons to terminate the services of the Claimant, it has failed to place before Court such material evidence as would have proved the reasons for terminating the services of the Claimant, and that those reasons were valid and fair reasons. 7. I have carefully considered the evidence on record and sought guidance from the precedents cited. It is clear that the Respondent's witness admitted that there was no evidence that the Claimant was involved in the theft and that the dismissal was based on suspicion. RW1 further admitted that he was not aware whether the Respondent did any investigations on the allegations and that he had not seen any report on the theft allegations. The show cause letter never gave any particulars of the Claimant's involvement in the theft. No witness testified about the alleged theft and no investigation report was produced. 8. In view of the said admissions by RW1 and the gaps in his evidence, I find that the Respondent has not discharged the burden of proof of the reason for dismissing the claimant on a balance of probability. I say so because under section 44(4)(g) of the Employment Act, the employer ought to have established by evidence that the claimant committed the offence charged or there were reasonable and sufficient grounds upon which to suspect that the claimant colluded with thieves to steal pineapples from its farm. 9. As a Consequence of the foregoing matters, I hold that the Respondent has not proved on a balance of probability the reason for the summary dismissal of the Claimant as required under section 43 and 45 of the Employment Act. **Procedure** 1. Section 45 (2) (c) of the Employment Act places on the employer the burden of proving that termination of employment contract was done in accordance with fair procedure. Section 41 of the Act then sets out the procedure for terminating employment for misconduct as follows: - ***" (1) subject to section 42(1), an employer shall, before terminating the employment of an employee, on the grounds of misconduct, poor performance or physical incapacity explain to the employee, in a language the employee understands, the reason for which the employer is considering termination and the employee shall be entitled to have another employee or a shop floor union representative of his choice present during this explanation.*** ***(2) Notwithstanding any other provision of this Part, an employer shall, before terminating the employment of an employee or summary dismissing an employee under section 44 (3) or (4) hear and consider any representations which the employee may on the grounds of misconduct or poor performance, and the person, if any, chosen by the employee within subsection (1), make.* "** 1. The above procedure is mandatory and the bear minimum is that before terminating the services of an employee on account of misconduct the employer must accord the employee an oral hearing. During the hearing the employer is required to explain the misconduct to the employee in a language he/she understands. The employee is entitled to have another employee present during the explanation and both the employee and his companion are entitled to air their representations in response to the allegations. Finally, the response by the employee and his/her companion must be considered before the verdict is made, which must be communicated to the employee in a fair manner. 2. The Claimant averred that the Respondent failed to comply with the above mandatory procedural as prescribed under Section 41 of the Employment Act. He relied on **Postal Corporation of Kenya v Andrew K Tanui [2019] eKLR** where the Court of Appeal highlighted the four elements required the procedure to pass muster, namely, an explanation of the grounds of termination in a language understood by the employee; the reason for which the employer is considering termination; entitlement of an employee to have another employee or a shop floor union representative present during the explanation; and hearing and considering any representations made by the employee. 3. The Claimant also relied on **Rebecca Ann Maina & 2 Others v Jomo Kenyatta University of Agriculture and Technology [2014] eKLR** where the Court stated that in order for an employee to respond to allegations made against them, the charges must be clear and the employee must be afforded sufficient time to prepare their defence. 4. The Claimant further relied on **Michael Odhiambo Opiyo v Bidco Africa Limited [2021] eKLR** where the Court held that the 24-hour notice period was not sufficient to allow a proper defence to be mounted and neither was the process in line with the rules of natural justice. 5. The Claimant also relied on **Grace Gacheri v Kenya Literature Bureau [2012] eKLR** where the Court observed that it is unfair labour practice for the employer to fail to avail the employee a genuine grievance management procedure and that such unfair labour practices are in contravention of Article 41(1) of the Constitution that provides for the right of every person to fair labour practices. 6. The Claimant further relied on **Del Monte Kenya Limited v Kiptoo (Employment and Labour Relations Appeal E007 of 2024) [2025] KEELRC 45 (KLR) (23 January 2025)** where this court held that the respondent was not accorded sufficient time to prepare his defence and that a notice of 24 hours when the employee was away on suspension was not sufficient. 7. The Respondent on the other hand submitted that it complied meticulously with each of the requirements of Section 41 of the Employment Act. It relied on **Bux t/a Kukuzingo Chicken and Chips v Mutsoii [2026] KEELRC 884 (KLR)** where this court held that where an employer follows the correct procedure, informing the employee of the allegations, giving them an opportunity to respond, and conducting a hearing, the termination cannot be faulted on procedural grounds. 8. I have carefully evaluated the evidence in the instant case and sought guidance from law and the cited precedents. The Respondent alleged that it followed the following procedure below: - 9. Suspension Letter dated 22nd November 2023; 10. Extension of Suspension on 6th December 2023; Show Cause Notice dated 13th December 2023 requiring response within 72 hours; 11. The Claimant's Written Response dated 15th December 2023; 12. Disciplinary Hearing on 20th December 2023 where the Claimant was accompanied by John Miano; 13. Termination Letter dated 22nd December 2023; and 14. Appeal Consideration which was declined by letter dated 27th December 2023. 15. The claimant contended that the above procedure was unfair because it was rushed, the show cause letter did not provide particulars of the allegation made against him to enable him make proper response, he was not provided with any investigations report, no witnesses testified against him during the disciplinary hearing, and he was not informed of his right to attend the hearing with another employee of his own choice. CW3 confirmed that he attended the claimant’s disciplinary hearing on invitation by the HR Manager through the person at the control room. He confirmed that he learned about the hearing that day and maintained that the Claimant never called him to accompany him to the hearing. 16. The Respondent's witness admitted during cross examination that the show cause letter did not give any particulars of the Claimant's involvement in the theft. He further admitted that he was not aware whether the Respondent did any investigations on the allegations. However, he contended that the HR policy provides for a period of 24 hour for responding to a show cause but the claimant was given 72 hours. 17. In **Nicholas Muasya Kyula v Farmchem Limited ICN 1992/2001**, Ongaya J (as he then was ) held that a notice to show cause should among other things, address with sufficient particularity the factual allegation or allegations being made against the employee afford a fair time for the employee to make an effective response. 18. In the present case, the show cause notice did not address with sufficient particularity the factual allegations that were being made against the Claimant. It did not provide the times, dates, places and circumstances for each allegation. It did not disclose any witnesses or supporting information despite the grave nature of the allegations and the serious professional consequences they carried. In such circumstances, I agree with the Claimant that he required particulars of the allegations, the supporting evidence and sufficient time to mount a comprehensive response to the accusations. 19. It must be emphasized that procedural fairness is not a mere formality and that the disciplinary process must afford the employee a real, meaningful and genuine opportunity to respond to the allegations before any adverse decision is taken. That can only be possible where the employee is given full particulars of the allegations and the supporting evidence. 20. On the basis of the evidence on record and the precedents cited above, I find that the Claimant was not accorded a fair hearing before the termination of his employment. He was not given any particulars of the allegations leveled against him and no investigation report was shared with him. Despite him raising the said matters in his response to the show cause letter, the respondent ignore the same and proceeded to invite him to a disciplinary hearing. He was also not informed of his right to have another employee present during the hearing and no witnesses were called to testify against him. On the whole I find and hold that the disciplinary process against the claimant was conducted hurriedly and without affording him the safeguards of a fair hearing before termination of his employment of 27 years. 21. I have noted that the termination letter offered the claimant 45 days salary in lieu of notice, but that offer could not sanitize the unfair termination. I gather support from the case of **Kenfreight EA Limited v Benson K Nguti** where the Court of Appeal held that: ***“Apart from issuing proper Notice according to the contract (or payment in lieu of Notice as provided), an employer is duty-bound to explain to an employee in the presence of another employee or union official, in a language the employee understands, the reason or reasons for which the employer is considering termination of the contract. In addition, an employee is entitled to be heard and his representations, if any, considered by an employer before the decision to terminate his contract of service.”*** 1. Having reached conclusion that the respondent has failed to prove a valid reason for terminating the claimant’s employment contract and that fair procedure was followed, I proceed to hold that the termination was unfair and unlawful within the meaning of section 45 of the Employment Act. **Reliefs** 1. The primary prayer by the Claimant was a declaration that the termination of employment was unfair, unlawful and wrongful. In view of the foregoing conclusion, I find that the claimant is entitled to declaration that the termination of his employment contract was unfair and unlawful as prayed. 2. The Claimant also prayed for compensation for unfair termination equaling to 12 months gross salary. In **Kenfreight (EA) Limited v Benson K Nguti [2019] KESC 79 (KLR)**, *supra,* where the Court of Appeal upheld my award of the maximum 12 months gross salary for unfair termination under Section 49(1)(c) of the Employment Act. 3. In this case, I have taken into account the claimant’s long service of 27 years, that no misconduct has been proved against him as the reason for the termination, and that his dismissal while only 7 years were remaining before the age of retirement compromises the chances of him securing an alternative job. Consequently, I award him the maximum 12 months gross salary as compensation for unfair termination of his employment being Kshs. 111,452 x 12 = 1,337,428.20. 4. The Claimant also prayed for one month salary in lieu of notice, accrued leave, salary for December 2023 and service pay, but the Respondent adduced evidence to prove that the Claimant was paid terminal dues amounting to Kshs.182,493 comprising of 45 days' pay in lieu of notice, earned and unutilized leave days, and days worked up to and including 22nd December 2023. 5. Page 25 of the Respondent’s bundle shows a payroll of basic salary of Kshs.111,452.35 and a total of Kshs.250,680.61 less deduction leaving a net of Kshs.182,493.13. Page 27 shows another pay roll showing payment of Ksh.182,493 and Page 28 is a Remittance Advice to Azima Sacco. The Claimant admitted that he had a Sacco loan and therefore I find that the Claimant is not entitled to benefit twice from what the employer has already paid him as terminal dues. 6. As regards the prayer for service pay for the period worked amounting to Kshs.3,746,325.87/- calculated at 15 days salary per completed year of service for twenty-seven (27) years, the Respondent submitted that this claim is precluded under Section 35(6)(d) of the Employment Act which provides that service pay under Section 35 shall not apply where an employee is a member of the National Social Security Fund ("NSSF"). 7. The Respondent relied on **Kennedy Nyanguncha Omanga v Bob Morgan Services Limited [2013] KEELRC 810 (KLR)** where the Court declined to award service pay on the basis that the employee's payslip demonstrated that he was a contributing member of NSSF. The Respondent also relied on **Wanjiku v Vanela House of Coffees [2018] KEELRC 663 (KLR)** where the Court affirmed that NSSF membership operates as a statutory bar to a service pay claim. 8. There is no doubt that the payslips at pages 50 and 51 of the Claimant's bundle reflect NSSF deductions from the Claimant's salary, demonstrating that contributions were both deducted and remitted on his behalf throughout his employment. The Claimant did not tender any evidence that these deductions were not remitted to the NSSF. I therefore find that the Claimant was a member of NSSF and is not entitled to service pay under Section 35(6)(d) of the Employment Act. **General Damages for Breach of Legitimate Expectations** 1. The Claimant prayed for an award of general damages for breach of legitimate expectations and breach of contract for expected years of service up to age of retirement being pay for the remaining contractual period of 7 years amounting to Kshs 11,655,168/-. However, the Respondent submitted that this claim has no legal foundation in Kenyan employment law and relied on **Kenya National Union of Nurses v Attorney General [2015] KEELRC 866 (KLR)** where this court stated that the Employment Act does not provide for payment for years remaining to retirement in the event of unfair termination and that the remedies as provided in Section 49 limit the quantum of compensation. 2. I agree with the Respondent's submissions. Under Section 49 of the Employment Act, the monetary remedies available upon a finding of unfair termination are prescribed and constitute a complete code. A court cannot award general damages for "breach of legitimate expectations" as a means of circumventing the statutory cap on compensation. The Claimant had no contractual entitlement to employment until retirement, his contract was always subject to lawful termination. I decline to grant this prayer. **Additional Roles** 1. The Claimant prayed for an order of assessment and payment of all wages owed to the claimant for the acting positions of senior Departmental Head-Security and Superintendent -Security from the year 2010-2023 when the Claimant was relieved of duties. He also prayed for underpayment/payment/compensation for the two additional roles for period of thirteen (13) years. 2. The Claimant contended that upon his promotion to the position of Security Foreman in the year 2010, he was verbally asked to equally take up acting responsibility for two additional roles being Senior Departmental Head - Security and Superintendent - Security. He performed various roles including ratifying security for use of the Management team, attending Sub-County Security Committee meetings, attending to court matters on behalf of the Respondents, attending Court Users Committee meetings, attending disciplinary hearing meetings for matters related to security, and overseeing security matters at the County level for the three county zones. 3. The Respondent submitted that this claim is wholly unestablished by evidence and is in any event time-barred. The Respondent's witness was unequivocal in his testimony that at no material time did the Claimant raise any complaint, whether through the Respondent's grievance procedure or otherwise, about being assigned additional duties outside his job description. 4. The Claimant admitted during cross examination that though he was given extra duties, he had not filed any supporting document to prove the additional duties. Consequently, I find that the said claim has not been substantiated and I decline to award it. **Overtime, Off Days, Public Holidays and Pension** 1. The Claimant prayed for payment for off days worked, payment for public holidays worked for the last thirteen years, unpaid leave allowance, unpaid overtime, and pension dues as per RBA rules. These claims are generalized and lacking particulars. The Claimant has not adduced any records of overtime worked, off days not compensated or public holidays not remunerated. These claims are speculative and are dismissed for want of proof. **Punitive and Exemplary Damages** 1. The Claimant prayed for an award of punitive damages and exemplary damages. He also prayed for a fine of Kshs. 100,000/- against the respondent for failure to comply with mandatory provisions of section 51(1), (2) and (3) of the Employment Act, 2007. 2. The Respondent submitted that punitive and exemplary damages are not available remedies in ordinary employment disputes and are reserved for the most exceptional circumstances where the employer's conduct is shown to be deliberately oppressive, arbitrary or unconstitutional. 3. I agree with the Respondent's submissions. Punitive and exemplary damages are not available remedies in ordinary employment disputes. The Claimant has not proved that the respondent’s conduct was so grave and oppressive to him that it warrants deterrence through an award of punitive and exemplary damages. Consequently, that prayer is declined. **Conclusion** 1. I have found that the dismissal of the Claimant was unfair and unlawful with the meaning of section 45 of the Employment Act. I have further found that the Claimant is entitled to some of the prayer sought but only as against the Respondent who admitted to have been his employer. Consequently, I enter judgment for the Claimant against the Respondent as follows: - 2. Compensation................................Kshs. 1,337,428.20 3. The Claimant is awarded costs and interest at court rate from the date of this judgment. 4. The award is subject to statutory deductions. **DATED, SIGNED AND DELIVERED VIRTUALLY IN OPEN COURT AT NAIROBI THIS 21ST DAY OF JULY, 2026.** **ONESMUS MAKAU** **JUDGE** **Appearance:** Mulinge for Claimant Mueni for Respondent