https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1729

Mwanza v Telkom Kenya Ltd (Cause 1247 of 2015) [2026] KEELRC 1729 (KLR) (19 June 2026) (Judgment) Neutral citation: [2026] KEELRC 1729 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nairobi Cause 1247 of 2015 JW Keli, J June 19, 2026 Between Sheikh Alfred Mwanza Claimant and Telkom Kenya Limited Respondent Judgment 1.The claimant was the former employer of the respondent and filed suit by way of plaint dated 19th December 2011, seeking for the following relief against the former employee-a.Kshs. 5,301,731/-b.Costs of the suitc.Interest thereon at court rates until payment in full. 2.The Plaintiff’s claim was accompanied by a list of witnesses dated 19th December 2011; witness statement of Fred Gituku dated 16th September 2011; witness statement of Christopher Kandie dated 19th December 2011; witness statement of Jacob Okoth dated 15th December 2011; and list of documents dated 19th December 2011 with the bundle of documents attached. 3.In response to the claim, the Defendant entered appearance on 8th February 2012 through the law firm of Albert Mumma & Company Advocates, and filed an amended defence and counterclaim dated 6th September 2024. In his counterclaim, the Defendant sought:-a.A declaration that the Defendant's employment with the Plaintiff was unfairly and unlawfully terminated and that the alleged resignation letter dated 26th July 2011 was procured under duress and the same is null and void ab initio.b.12 months basic gross salary payment being compensation for unlawful/unfair termination.c.Three months basic gross salary being payment in lieu of notice.d.Terminal dues being (i) pension provision (ii) unpaid leave allowance.e.Certificate of service.f.Costsg.Interest on (e), (f) and (g). 4.In support of his response, the Defendant filed a list of witnesses dated 13th February 2012; witness statement of even date; and a list and bundle of documents of even date with the bundle of documents attached. 5.To counter the Defendant’s case, the Plaintiff filed a Reply to Defence and Defence to Counterclaim dated 24th February 2012. Hearing and evidence 6.The hearing of the claimant’s case started on the 2nd November 2021 before Justice Ocharo Kebira, where CW1 was Christopher Kandie, who testified as a witness of fact, but the case was adjourned and continued on the 22nd March 2023. CW1 produced his documents and what he called an investigation report. He also adopted his statement dated 16th December 2017 as his evidence in chief. He was cross-examined by counsel for the respondent, Agwara. I took the CW2 evidence on the 12th June 2025 . Fred Chomba Gituku. He adopted his witness statement dated 16th September 2011 in support of the claim and the defence of the counterclaim. He was also cross-examined by counsel for the respondent, Agwara. 7.The respondent’s case was heard before me on the 16th October 2025, where the respondent testified and adopted his witness statement dated 13th February 2012 as his evidence in defence and support of the counterclaim. The respondent further produced his documents under the list dated 13th February 2012. He was cross-examined by counsel for the claimant, Nyaburi. The Plaintiff’s case in summary 8.The Plaintiff’s case is that the Defendant was its employee in the position of head of the Sales Department, Nairobi Region. On or about 18th July 2011, after a review of the expenditure receipts for promotional and activation activities, including expenditure receipts submitted by the Defendant, it was found that the Defendant had failed to account for the sum of Kshs. 2,350,000.00 and submitted falsified receipts to cover misappropriated funds. For instance some of the receipts that were found were issued by entities known as Benkan Promotions Limited and Bejus Enterprises, which could not be identified or traced. Further, ten indirect sales representatives working under the Defendant who the Defendant had alleged submitted expenditure receipts to him for alleged promotional activities carried out in Kitengela, upon being interviewed, revealed that no such activities had been carried out. The Plaintiff avers that the Defendant misappropriated funds amounting to Kshs. 5,301,731.00, which out to be refunded. 9.It is stated that once the investigations team concluded its investigations, it prepared a report which was submitted to the Human Resources Department, and they held a meeting with the Plaintiff and his supervisor, the Head of Mass Market, on 22nd July 2011. The Plaintiff was informed of the anomalies found in the supporting documentation presented by him to the Finance Department, specifically, the receipts which emanated from fictitious companies that were submitted to support an imprest of Ksh.2,951,713.00; and the imprest of Ksh.2,350,000 which remained unsupported. The Plaintiff did not offer a satisfactory explanation for the missing funds, hence the Human Resource Department informed the Respondent’s Chief Executive Officer of the Plaintiff’s misconduct. The Plaintiff was provided with two options by the Respondent’s CEO: either he is dismissed from employment and a suit filed to pursue the misappropriated funds; or he resigns and provides a plan to repay the misappropriated funds in full. The Plaintiff elected to resign and furnished the Respondent with a resignation letter on 26th July 2011, but he failed to give a repayment plan. The Respondent accepted the Plaintiff’s resignation, but was categorical that it would pursue recovery of the misappropriated funds. Defendants’ case in brief 10.The Defendant’s case is that he was an employee of the Plaintiff having been employed on 12th January 2012 to the position of Sales Manager within the Business Market Department. The Defendant was in charge of the SMI Market reporting to the Head of Business Market. The Plaintiff rose through the ranks due to his diligent service for which he earned many awards, to head the Plaintiff's Corporate Sales Team that was in charge of the Corporate Sector and contributing 40% of revenue within the Plaintiff's Business Market (BM), then to Regional Sales Manager, Nairobi, in charge of the Retail Line Business within the Mass Market Department, doubling as Head of the SME sector, which contributed 35% of the Business Market (BM) revenues.. The Defendant avers that he was promoted to Regional Sales Manager, Nairobi, as the Nairobi Region, an area that was significant since it generated 60% of revenue in the Mass Market Department, was performing poorly at the time, hence he was promoted after being adjudged capable of improving the sales performance and revenue generation, a testament to his excellence. 11.The Defendant states that as the Regional Sales Manager-Nairobi, he had a P& L responsibility and the region was allocated a monthly Operating Expenditure (OPEX) to run various activities geared towards revenue sustainability and growth. The activities included: visibility (postering, activities), sales activations and animations throughout the region, shops animation, road show activities and weekly and monthly reward scheme for the best performing sales personnel. It was the Defendant’s responsibility to ensure that the stated activities generated the targeted revenues. 12.The activities were implemented as follows: the Defendant states that he would receive budget proposals from his respective area managers (Indirect Sales Representatives (ISR)) and shop managers based on the activities they wished to run within a particular month. He would then request for funds based on the said budget proposals. Upon verification and approvals by the Heads of Departments (HODs) and the Chief Executive Officer (CEO), the Finance Department would release the money to the Defendant’s Region for disbursement to the respective ISRs and Shop Managers to enable them carry out the activities as per their budgets. After disbursement of funds, the ISRs and Shop Managers would carry out the respective activities and file reports at the end of the said activities. Simultaneously, the ISRs and Shop Managers would surrender the receipts for the said expenditures to the Department Assistant who would collate and verify the receipts then deliver the same to the Defendant’s office for onward transmission to the Plaintiff's finance department, for auditing and validation. If they were found to be in order and in line with the budget, the finance department would clear the region. The Defendant explains that the Region would not be allocated further finances to carry out its activities unless the Finance Department was convinced that the previous funds allocated were procedurally and properly utilized. 13.The Defendant admits that the Finance Department released monies on a month to month basis based on the budget requests from the Defendant’s department and the said sums were utilized by various officers of the Plaintiff to help realize the revenue targets for the Nairobi Region. In particular, the Defendant admits that in the month of June 2011, the Finance Department released to the Nairobi region a sum of Kshs 2,950,000/= which sum was based on the approved sales activities and budget proposals. The money was utilized, accounted for, and receipts provided. The Finance Department cleared the expenses which indeed assisted the region to collect over 16,000,000/= in additional revenues for the said month of June. 14.Upon clearance, a budget for July 2011 was prepared by the ISRs and Shop Managers for activities that they wished to run for that months for a sum of Kshs 2,350,000/- which was equally approved and released by Plaintiff's Finance Department 15.It is the Defendant’s case that under his leadership revenue collection for the Nairobi Region increased and the Region was projected to continue performing very well. As such, certain officers within the Plaintiff’s ranks hatched a malicious scheme against the Defendant by purporting to carry out investigations on the Nairobi Regions’ expenditures in a record 2 days, made a false finding that some of the receipts emanating from the Nairobi Region which had already been verified and approved by the Plaintiff's Finance Department were not traceable to their source, following which a verdict was reached to terminate his employment without affording him an opportunity to defend himself. The Defendant states that he was directed to take responsibility and “step aside” and/or be suspended with immediate effect. 16.The Defendant confirms that he opted to step aside hoping that the Plaintiff would be fair and afford him a hearing on the alleged issues raised, but he was forced to 'step aside' or go on leave for a period of 15 days to enable the alleged investigations be concluded. On 26th July 2011, 2 days into his purported leave, the Defendant avers that he was summoned to a meeting by the Plaintiff and the Plaintiff demanded that he resigns from the organization immediately, or be dismissed summarily without pay and benefits. The Defendant states that he was flummoxed, until he was shown a signed letter of dismissal and a blank letter of resignation. At this juncture, the Defendant was pressured to choose there and then, and told that he had to leave the said meeting with one of the letters. The Defendant further states that he was informed that the Plaintiff no longer required his services, and that he was still a young man and could build his carrier elsewhere. 17.The Claimant states that once he signed the resignation letter, the Plaintiffs' officers issued him with another letter dated 26th July 2011 which they had been keeping all along during the meeting, which letter stated that the Plaintiff accepted the Defendant's retirement and directed him to serve the notice period away from the office. The Defendant discloses that the Plaintiff’s officers threatened him by stating that if he filed a case against the Plaintiff Company, he would be unsuccessful as the Plaintiff will defeat the same by raising a spurious claim that the Defendant had misappropriated the Plaintiff's funds to the tune of Kshs. 5.3Million. They were confident that the Defendant would not be able to defeat the allegation of embezzlement as he has no records of the said expenditures, the same having been handed over to the Plaintiff Company. The Plaintiff categorizes the present suit as part of the fraudulent scheme to push him out of work, and emphasizes that it was filed after he demanded for compensation for unlawful and unfair termination. 18.The Defendant takes issue with the Plaintiff’s failure to grant him an opportunity to be heard; their failure to permit him to consult anyone; and the forced execution of the resignation letter which to him appeared to be better than being summarily dismissed at the time. He also complains that he was sent on forced leave with a view to denying him access to his office in order to manufacture documents against him, but recalled two days later and forced to sign a resignation letter; the Plaintiff failed to avail the investigation report which formed the basis of the his termination to him; the Plaintiff filed clandestinely against him to steal a match on any suit claiming unfair termination filed by him; frustrating his work; discriminating against him on racial grounds; and acting irregularly, unfairly, unprocedurally and contrary to the Plaintiff’s own Disciplinary Policy and the applicable laws. Determination 19.It is not in dispute that the Defendant was an employee of the Plaintiff having been employed by them on 18th December 2009 per the contract of employment produced before this Court by both the Plaintiff and Defendant. Some of the terms of his employment were that he was being offered employment on permanent and pensionable terms, subject to an initial probation period of 6 months; he would receive a consolidated starting salary of Kshs. 210,000/- per month, 70% of which would be fixed, and 30% of which would be variable and dependent on the Defendant meeting his sales targets; he would receive a mileage allowance of Kshs. 90,000/- per month; he would be entitled to 30 days paid annual leave; and he would be part of the Plaintiff’s pension scheme, the Alexander Forbes pension scheme. On termination, the contract of employment provided that either party could terminate the contract by giving the other party 30 days’ notice or by paying one month’s basic salary in lieu of notice. 20.It is also not in dispute that the Plaintiff and Defendant separated vide the Defendant’s resignation letter dated 26th July 2011. 21.The point of departure between the Plaintiff and Defendant relates to the circumstances leading to his resignation from employment on 26th July 2011. While the Plaintiff admits that the Defendant was given two options – either to resign or be summarily dismissed, they insist that the Defendant chose to resign from employment after being found culpable of misappropriating company funds to the tune of Kshs. 5,301,731/-. The Defendant counters this narrative by stating that he was pushed out of the company, the allegations of misappropriation were completely false and he executed the resignation letter under extreme duress and coercion. He considers his forced execution of the resignation letter as a form of unfair termination of his employment by the Respondent. 22.This case pits an employer who wants the repayment of purportedly misappropriated funds; with an employee who claims that he was unfairly terminated from employment by being forced to execute a resignation letter on manufactured grounds. 23.Having reviewed the parties’ pleadings, oral and documentary evidence, and written submissions, I return that the issues for determination are as follows:-a.Whether the Defendant resigned from employment or was terminated by the Plaintiff;b.Whether the Defendant misappropriated Kshs. 5,301,731/- from the Plaintiff company.c.Whether the Defendant has proved that he was unfairly terminated from employment.d.What reliefs should the Court grant. Whether the Defendant resigned from employment or was terminated by the Plaintiff 24.Both parties agree that the Defendant issued a resignation letter dated 26th July 2011 to the Plaintiff, but the Defendant pleads and avers that he was coerced to execute the same under extreme pressure. 25.In paragraph 5 of the Witness Statement of FRED GITUKU dated 16th September 2011 filed by the Plaintiff, they admit that following the meeting between the Plaintiff’s officers and the Defendant, he was given the options to resign and provide a repayment plan, or to be dismissed from employment and suit instituted against him for recovery of the lost funds. These events are corroborated by JACOB OKOTH in his witness statement dated 15th December 2011 filed before the Court. 26.It is clear to this Court’s mind that the Defendant’s resignation letter was not procured in free and voluntary circumstances, but he executed the same under compulsion. The reason for this conclusion is that the circumstances of the Defendant’s resignation as set out by him are convincing in that he was called into the Plaintiff’s Human Resource office on 22nd July 2011 in the presence of his immediate supervisor, he was confronted with allegations of misappropriation of funds, he was threatened with a court case, and he was pressured to execute a resignation letter. Immediately after executing the said letter, the officers of the Plaintiff presented him with an acceptance of his resignation which was already prepared. The conduct of the Plaintiff’s officers points at a plan with a pre-determined outcome. At the time of the resignation, the Defendant’s department was performing well with revenues of Kshs. 16,000,000/- in June 2011. 27.Was the resignation letter valid? This court holds and finds that it was not, having been procured through coercion or duress. Further, the Defendant did not make a decision to terminate is employment of his own free will, but did so under pressure and threats of prosecution. 28.In the case of Kipchumba v National Bank of Kenya Ltd (Cause 824 of 2016) [2018] KEELRC 2393 (KLR) (16 February 2018) (Judgment), the Court faced with similar circumstances where an employee was pressured into executing a resignation letter, held as follows:-“The Claimant was coerced into writing the letter of resignation. The Court does not think that the Respondent needed to have applied physical force, or threatened the Claimant with confinement, for it to be concluded that the Respondent coerced the Claimant. The actions by Koech in particular, amounted to wrongful pressure, intended to make the Claimant write a letter which he would not have written of his own free will. Koech and Alice need not be party to this Claim, for the Court to make this finding. The Claimant testified he was confused, and caved in. He wrote the letter. There were special circumstances surrounding his letter of resignation. In terms of clear and unequivocal evidence of resignation decision, a letter written in circumstances set out above can hardly be persuasive, in showing that the Employee has decided to resign. The letter of resignation was done in the heat of the moment. The Claimant was the best Employee of the Bank at one time. He had a mortgage to be repaid within 25 years. He serviced the mortgage from his earnings from the Respondent. He resided in a house owned by the Respondent. He has a family which looks up to him. Why would he just rise up in the morning, and without provocation, or sight of greener pastures, tender his resignation? These facts point to special circumstances. The Court is content to conclude the Claimant did not, of his own free will, make a decision to terminate his contract of employment.” I upheld the decision to apply in the instant case. 29.The above being said, was the Defendant’s employment terminated? The Court’s answer to this question is in the affirmative for the reason that the witness statement of JACOB OKOTH at paragraph 7 and 9 indicates that the Plaintiff, through its Chief Executive Officer, had formed an intention of ending its relationship with the Defendant in one of the two ways indicated, namely through a dismissal or resignation. The Defendant’s resignation from employment was immediately accepted once he submitted his resignation letter. There is no evidence produced to indicate that the Defendant continued receiving his salary after July 2011. For these reasons, I hold that the Defendant’s employment was terminated. Whether the Defendant misappropriated Kshs. 5,301,731/- from the Plaintiff company. 30.The Plaintiff has produced before the Court the Defendant’s Account Statement showing a disbursement of Kshs. 2,950,000/- to him at pages 19-20 of the Plaintiff’s bundle of documents. They have also produced copies of receipts submitted by the Defendant involving irregular transactions and emanating from purportedly fictitious companies from pages 22-54 of the Plaintiff’s bundle as aforesaid; as well as an investigation report dated 25th July 2011 on pages 55-60 of their bundle of documents. Further, they have produced witness statements of twelve (12) individuals employed by the Plaintiff, indicating that the activities submitted by the Defendant as having been undertaken were not (pages 61-87 of the bundle). 31.The Defendant challenges the validity of the investigation report and categorises the investigation as a sham that was carried out over a period of 2 days. He, however, and notably does not contradict the evidence by the Plaintiff that the receipts submitted were fictitious, or that the amount of Kshs. 2,350,000/- remains unaccounted for. He has also not explained why twelve (12) different employees who worked under him testified that the activities that were purported to have been carried out, were not carried by them. 32.The court has held on multiple occasions that its mandate is not to usurp the role of the employer in determining whether the reason for termination was valid, but rather to assess whether the employer reasonably believed that the reason for termination existed. In the present case, the Plaintiff employer, having suspected the Defendant of misconduct, carried out a comprehensive investigation and established that the Defendant had indeed presented false accounts/receipts. They have set out the particulars of the misappropriation of funds in great detail. The court therefore holds that the Plaintiff has proved on a balance of probabilities that the Defendant misappropriated funds to the tune of Kshs. 2.951,713.00 and that Kshs. 2,350,000.00 is unaccounted for. Whether the Defendant has proved that he was unfairly terminated from employment. 33.The law on unfair termination in Kenya is well settled. Section 47 (5) of the Employment Act 2007 imposes an initial burden on a Claimant to prove that there existed an employer-employee relationship between himself and the Respondent, that he was terminated from employment and that his termination was unfair. It provides that:-“(5)For any complaint of unfair termination of employment or wrongful dismissal the burden of proving that an unfair termination of employment or wrongful dismissal has occurred shall rest on the employee, while the burden of justifying the grounds for the termination of employment or wrongful dismissal shall rest on the employer.” 34.The court has already held that the Defendant was the Plaintiff’s employee, and that he was terminated from employment. On whether the Defendant has proved that the termination of his employment was unfair, he was only required to establish a prima facie case that the termination was unfair. The Defendant adduced evidence that the Respondent failed to grant him an opportunity to be heard on the allegations of misappropriation of funds; failed to avail to him the investigation report; and coerced him to sign a resignation letter. I am satisfied that he has established a prima facie case for procedural unfairness, thereby discharging his initial burden of proof. 35.Once an employee has discharged his or her burden of proof, Section 47 (5) shifts the burden to the employer to prove that they had valid and fair reasons for the termination. This is in line with Section 43 of the Employment Act 2007 which provides that:“Proof of reason for termination(1)In any claim arising out of termination of a contract, the employer shall be required to prove the reason or reasons for the termination, and where the employer fails to do so, the termination shall be deemed to have been unfair within the meaning of section 45.(2)The reason or reasons for termination of a contract are the matters that the employer at the time of termination of the contract genuinely believed to exist, and which caused the employer to terminate the services of the employee.” 36.Other than the reason for termination Section 45 (2) imposes an additional burden of proving that the procedure followed during the termination was fair. It provides:“(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 employees 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.” 37.I have already addressed the issue of the reason for termination, being misappropriation of funds, and held that it was a genuine reason that the Plaintiff believed to exist and which formed the basis of the termination. In the investigation report dated 25th July 2011, under conclusions, it is indicated that the Defendant violated company rules and regulations by engaging in forgery and presentation of false receipts, and had committed a criminal offence as defined in the Penal Code. 38.I will now turn to procedural fairness. Fair procedure is contextualized under the Section 41 of the Act to mean that the employer must 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, the employer must hear and consider any representations which the employee make, and the employer must consider those representations while making a final decision. 39.The existence of substantive justification and fair procedure in a termination of employment comprises the two-prong test for unfair termination. The aforementioned test was applied in the case of Walter Ogal Anuro –v- Teachers Service Commission (2013) eKLR where the Court held that:“…. For a termination of employment to pass the fairness test, there must be both substantive justification and procedural fairness. Substantive justification has to do with establishment of a valid reason for the termination while procedural fairness addresses the procedure adopted by the employer to effect the termination.” 40.In the present case, the Defendant faults the Plaintiff for sending him on 15 days’ leave to pave way for investigations, recalling him 2 days letter into a meeting, tabling the allegation of misappropriation of funds at that meeting, failing to grant him an opportunity to defend himself, or consult anyone, and inducing him to sign a resignation letter. 41.The Plaintiff has not controverted the Defendant’s evidence that they failed to follow the statutory procedure under Section 41 of the Employment Act, by producing a Notice to Show Cause issued to the Defendant, and producing an invitation to disciplinary hearing or Minutes thereof. They have also not indicated that they informed the Defendant of his right to have a fellow employee or shop floor union representative present during such a hearing, and allowed him to attend alongside them. All they refer to, is the meeting held on 22nd July 2011. The court has held that a mere meeting does not meet the threshold of a disciplinary hearing as contemplated by Section 41 of the Employment Act. This was stated by the Honourable Court of Appeal in Standard Group Limited v Jenny Luesby [2018] eKLR at paragraph 45, as follows:“With respect, we think the trial court was on firm ground in such finding. As stated above, the procedure under section 41 of the Act is mandatory. Apart from a mere assertion that there was an attempt made on 14th November, 2013 in a meeting with the HR Director and respondent in the CEO’s office, where the incident was discussed and the respondent is said to have apologized, there was nothing on record to show that the requirements of section 41 were complied with…It follows that the act of summarily dismissing the respondent without giving her an opportunity to be heard amounted to unfair termination as defined in section 45 of the Act. The burden was on the appellant to prove 'that the employment was terminated in accordance with fair procedure.' See Kenfreight (E. A) Limited vs Benson K. Nguti, [2016] eKLR.” 42.It is clear to the Court’s mind that the Plaintiff terminated the Claimant’s employment without according him with fair procedure. In the absence of procedural fairness, I find that the Defendant’s termination from employment was unfair and unlawful. What reliefs should the Court grant 43.The Court has found that the Defendant misappropriated funds amounting to Kshs. 5,301, 721/- belonging to the Plaintiff. Under Section 19 (1) (d), the court has jurisdiction to order a deduction from wages, or refund of:“an amount equal to the amount of any shortage of money arising through the negligence or dishonesty of the employee whose contract of service provides specifically or his being entrusted with the receipt, custody and payment of money”.It is evident that the Defendant was entrusted with the receipt, custody and payment of the monies required for sales activities as Head of the Sales Department, Nairobi Region, and this is not denied by him. As such, he is responsible for the shortage arising from his dishonesty and/or negligence. 44.Having held that the Defendant was indeed unfairly terminated from employment, I now consider the matter of the terminal dues that he is entitled to. 45.The Defendant seeks 12 months’ salary as compensation for unfair termination, 3 month’s notice pay unpaid leave allowance, and pension. 46.On the prayer for compensation for unfair termination, under Section 49 (1) (c) of the Employment Act 2007, this Court has discretion to award compensation up to a maximum of 12 months’ gross salary, taking into account the factors contained in Section 49 (4) namely:-“(a)wishes of the employee;(b)the circumstances in which the termination took place, including the extent, if any, to which the employee caused or contributed to the termination; and(c)the practicability of recommending reinstatement or re-engagement;(d)the common law principle that there should be no order for specific performance in a contract for service except in very exceptional circumstances;(e)the employee's length of service with the employer;(f)the reasonable expectation of the employee as to the length of time for which his employment with that employer might have continued but for the termination;(g)the opportunities available to the employee for securing comparable or suitable employment with another employer;(h)the value of any severance payable by law;(i)the right to press claims or any unpaid wages, expenses or other claims owing to the employee;(j)any expenses reasonable incurred by the employee as a consequence of the termination;(k)any conduct of the employee which to any extent caused or contributed to the termination;(l)any failure by the employee to reasonably mitigate the losses attributable to the unjustified termination; and(m)any compensation, including ex-gratia payment, in respect of termination of employment paid by the employer and received by the employee”. 47.I have carefully pored over how much compensation to grant the Defendant who has already proved that he was unfairly terminated from employment. Taking into account the Defendant’s length of service from 18th December 2009 to 26th July 2011, hence approximately one and a half years; his contribution to the termination by misappropriating company funds through forgery and presentation of false receipts; the cunning manner through which the Plaintiff terminated his employment by coercing him to execute a resignation letter; the casual disregard for the law on procedural fairness by the Plaintiff, I award the Defendant 3 months gross salary as compensation. Per the pay slip for May -July 2011 attached the Defendant’s Bundle of Documents, which are not contested, his gross salary at the time of termination was Kshs. 363,000/-. 48.The prayer for 3 months’ notice pay has no basis in law or in contract. The Defendant’s contract of employment provided for one month’s notice or one month’s basic salary in lieu of notice. Under this head, I grant the sum of Kshs. 273,000/-, being one month’s basic pay per his pay slips produced. 49.The court has no jurisdiction to entertain the claim for the Defendant’s pension under the Retirement Benefits Act. 50.Unfortunately, the Defendant has not pleaded and proved with specificity the leave allowance sought, namely what period this prayer relates to, which leave days were taken and which were not, hence this claim is denied. 51.It is trite law that per Section 51 of the Employment Act 2007, the Claimant should be issued with a Certificate of Service. 52.In the upshot, judgment is hereby entered in the following terms:-a.An order that the Defendant pays the Plaintiff the sum of Kshs. 5,301,721/- lost from the Defendant’s docket.b.A declaration that the Defendant’s employment was unfairly terminated;c.The Defendant be paid the following terminal dues, which be offset from the amount of Kshs. 5,301,721/- owed by the Defendant to the Plaintiff :-i.3 months’ salary as compensation or unfair termination.363000x 3ii.One month’s basic pay in lieu of notice.273000Total = 1,362,000/-d.The Defendant be issued with a certificate of service.e.Each party shall bear their own costs. 53.It is so Ordered. DATED, SIGNED, AND DELIVERED IN OPEN COURT AT NAIROBI THIS 19TH DAY OF JUNE, 2026.JEMIMAH KELI,JUDGE.In The Presence Of:Court Assistant: OtienoPlaintiff: Ms Musyoka h/b NyaburiDefendant: absent