Ndimu v Rising Communications Limited (Cause E002 of 2025) [2026] KEELRC 1320 (KLR) (19 May 2026) (Judgment)

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT AND LABOUR RELATIONS COURT** **AT MOMBASA** *(Before Hon. Lady Justice Monica Mbarũ)* **CAUSE NO. E002 OF 2025** **ALMASS SWALEH NDIMU CLAIMANT** *VERSUS* **RISING COMMUNICATIONS LIMITED RESPONDENT** **JUDGMENT** The claimant is an adult male. The respondent is a limited liability company. The respondent employed the claimant as a general manager on 1 May 2024 under a one-year contract, assigning duties at the Mombasa office. The salary was agreed at Ksh. 120,000 per month. The claim is that the claimant was only issued his employment contract in August 2024. He was directed to read the clauses, make comments, and seek clarification. The claimant sought legal advice on certain clauses in the contract and was informed of the risk of accepting clause 17, which required him to grant the respondent a Power of Attorney, allowing them to sign documents on his behalf upon termination of his contract with the respondent. The claimant declined to accept this clause. The respondent withheld his August salary until he signed the contract. A warning letter was sent on 10 September 2024, requesting the return of the signed contract. The claim is that the claimant was victimised for exercising his right to decline clause 17 of the employment contract. On 26 September 2024, a notice of termination of employment was issued, and the last working day was 26 October 2024. The respondent offered to pay in lieu of notice together with any salary arrears. On 2 October 2024, the claimant noticed that he had been removed from the company CCTV camera system. On 5 October 2024, the respondent, through Linda and Brian, went to the claimant’s office without prior notice and directed him to hand over his work tools and to hand over the office keys, which he had left at home. He asked to go home and get the office keys. However, while on his way home, he received an alert from the security guards and, upon return, found the locks changed by Linda and Brian. He was effectively locked out. On 8 October 2024, the claimant was issued with a notice to show cause directing him to respond by 12 noon and attend a disciplinary hearing on 9 October 2024 at 8.30 am. On the material date at 8 am, the claimant emailed the respondent stating that the time allotted for the disciplinary hearing was too short for him to gather his evidence, seek legal advice, and have a colleague attend, and, hence, he was not ready. He also requested particulars of the disciplinary hearing and any allegations made against him. Instead, the respondent terminated his employment without due process. He had no time to prepare for his representations, resulting in unfair termination of employment. The claimant is seeking the following dues: 1. September salary Ksh. 120,000. 2. Salary for 9 days' work in October 2024, Ksh. 41,538. 3. 7 months unexpired contract ksh. 840,000. 4. 12 months' compensation Ksh. 1,440,000. 5. 21 leave days Ksh. 96,923. 6. One year service pay ksh. 60,000. 7. Costs of the suit. The claimant testified in support of his case that, upon being offered employment by the respondent, he was issued a written contract but did not agree to clause 17. He made his reservations because this required him to grant the respondent power of attorney to use his signature upon termination of his employment. The claimant testified that he continued working for the respondent despite the contract reservation. However, in August 2024, he noticed that his salary had not been paid. On 5 October 2024, the claimant was surprised to see Linda and Brian in his office. They demanded a handover of all office equipment, including the office key, which he had forgotten at home. He requested to go and get the key. While away, they changed the office locks, and he could not access. He also noticed that they had changed his CCTV access. The claimant testified that on 8 October 2024, he was issued with a notice to show cause and directed to attend a disciplinary hearing on 9 October 2024. He needed time to consult his advocates and prepare, but the respondent declined to grant that time and instead issued a notice terminating his employment without due process or payment of his termination dues. The claimant testified that he has since been paid his dues. He worked for the respondent for 5 months. The claimant admitted that he was issued questions regarding his work performance, particularly his giving airtime on credit and failure to submit daily work reports. He felt victimized. He admitted he had apologised and offered steps to address the noted challenges. The claimant admitted that he was offered terminal dues by the respondent but failed to collect them. This has since been sent to the Labour Office in Mombasa by cheque for Ksh. 109,000 for days worked and accrued leave days. In response, the respondent admitted that the claimant was offered employment as general manager on 8 May 2024 at a salary of Ksh. 120,000 per month. The respondent’s officer, Linda Gebson, shared a draft contract with the claimant on 29 May 2024, proposing terms and conditions, but the claimant expressed reservations and shared conditional acceptance on 18 September 2024. The claimant's numerous reservations and conditional acceptance of the employment contract constituted a counteroffer, and the parties were unable to reach a consensus on the terms governing the employment relationship. The claimant remained at work with the respondent, although without a written contract from May 2024. His performance output from June to October 2024 was poor. Among the key omissions and obligations that the claimant failed to address were: 1. Deliberately failing to share daily work plans despite being assigned such duties by the supervisor on 31 May 2024. 2. Failing to submit daily reports on the Airtel Money business from 17 June to 9 September 2024 as assigned by the supervisor on 31 May 2024. 3. Failing to train shop assistants in making daily entries of One Time Passwords (OTPs) activated after the sale of airtime to conform to targets set by the respondent’s supplier during September 2024. 4. Failing to supervise the shop assistant in making the OTPs, leading to financial losses to the respondent. The response is that the claimant committed acts of gross misconduct. On 9 September 2024, Linda Gebson, the supervisor, went to the office, and the claimant walked out, refusing to communicate. He also refused to communicate on the formalisation of the employment contract and his response to the laptop and phone policy. From 9 September 2024, the claimant remained absent from his workplace, leading to operations being paralysed. By keeping the office phone and laptop, which contained reserves for float cash used in the Airtel Money business, the respondent and its customers were left inconvenienced. The response is also that the claimant committed gross misconduct when he failed to supervise and oversee the recording of entries pertaining to OTP and airtime sales as set in his targets. On 5 October 2024, the respondent’s officer, Linda, found that the claimant was engaging in various fraudulent improprieties, malpractices, and irregularities. He issued receipts under the respondent’s name for the purported sale of items that were not stocked by the respondent. Ordered unauthorised money withdrawals from the shop assistant who was operating the Airtel Money business. The claimant directed the shop assistant to falsify entries in the Airtel Money business records to conceal the unauthorised withdrawals in his favour. There remained unexplained losses of airtime stock, cash float, office keys, and airtime stocks paid on credit. The response is that on 29 May 2024, the respondent issued the claim with a written contract, but he failed to sign and made reservations. He protected the clauses requiring him to agree to the laptop and phone policy. Despite persistent requests, he refused to oblige. Due to the noted malpractices, fraudulent activities, and acts of gross misconduct, a notice to show cause was issued on 7 October 2024. He was required to respond to the matters set out, but he ignored them. On 8 October 2024, the respondent invited the claimant to a disciplinary hearing on 9 October 2024 at 8:30 am. On the material date at 8.28 am, the claimant responded, demanding records and time to consult his advocates. This was an attempt to frustrate the disciplinary hearing. Taking into account the gross misconduct and absence from office without good cause, notice terminating employment was issued on 9 October 2024. The claimant has since been paid his terminal dues. He refused to collect, and these were deposited with the labour officer in Mombasa. In evidence, the respondent called Linda Gebson. The witness supported the response, stating that the claimant failed and refused to execute the employment contract despite seeking time to consult and revert to it. The respondent issued several reminders, but he refused to comply. Linda testified that, upon a spot check, it came to their attention that the claimant was not undertaking his duties with the diligence alleged. A visit to the office revealed various acts of negligence of duty, fraudulent activities related to money transactions, and malpractice involving failure to account for stock and supervise the shop assistant. This resulted in significant losses for the respondent, leading to the business's closure. Linda testified that they invited the claimant to a disciplinary hearing upon a show-cause notice, but in an effort to frustrate the same, he failed to respond or attend. A decision was taken to terminate his employment. Despite paying the terminal dues, the claimant refused to collect them, and they have since been deposited with the Labour Office, Mombasa. At the close of the hearing, both parties filed written submissions. These are analysed in the body of the judgment. **Determination** From the record, the evidence, the submissions by the parties, the issues which emerge for determination are: The nature of the employment relationship. Whether there was an unlawful and unfair termination of employment; And whether the remedies sought should be issued. The claimant asserts that his employment was terminated unfairly by the respondent for lack of due process. That upon the notice to show cause dated 7 October 2024, he was not allowed sufficient time to attend, prepare his response or call a witness. The summary dismissal was therefore unlawful. The respondent asserts that, upon a spot check at the claimant’s office on 5 October 2024, fraudulent improprieties, malpractice, and irregularities were noted, constituting gross misconduct. The claimant was issued a notice to show cause, but failed to respond. He was invited to a disciplinary hearing and was frustrated by making unnecessary demands. The termination of employment was justified and lawful. The claimant was issued with a written contract of employment, and he contested some clauses. His rationale was that these clauses were unfair to him. The respondent would use his passwords post-employment. Effectively, there was no written contract between the parties. Whereas under sections 8 and 9 of the Employment Act (the Act), employment can be on oral terms, the employer is required under section 10(3) of the Act to issue a written contract. This should be done within 2 months of employment. See **Mavutta v National Social Security Fund Board of Trustees [2026] KEELRC 458 (KLR)**. The claimant remained under an oral terms contract for the entire duration of his contract. Efforts to have a written contract were frustrated by his failure to accept and execute the contract issued by the respondent, the employer. The employer may, under sections 10, 12, and 13 of the Act, bring to the employee's attention any workplace policy that governs the shop floor. In this regard, the respondent, due to the nature of its business operations, had a phone and laptop policy. The claimant did not accept these policies because his password would be used post-employment. The respondent had a duty to issue a written contract and to protect its business, as held in [**Kimani v Technobrain Kenya Ltd [2025] KEELRC 1173 (KLR)**](https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1173/eng%402025-04-24)**.** The court's reading of the contract under clause 17 is that this is a reasonable and rational clause in view of the business run by the respondent and the position held by the claimant. Effectively, the claimant declined the offer of employment. that rescinded the employment relationship. However, he continued working on oral terms and was paid for his labour. The respondent ought to have terminated the employment relationship immediately upon the claimant's refusal to accept the employment contract, as held in **Mbachi v Kazuri 2000 Limited [2023] KEELRC 1026 (KLR).** Beyond the employment contract, the claimant was issued a notice to show cause on several allegations of gross misconduct. This included malpractice, fraud, and acts of gross misconduct. The notice to show cause is dated 7 October 2024. The claimant asserts that he received it on 8 October 2024 and needed time to consult his advocate. The respondent filed an email confirming the issuance of the notice on 7 October 2024. The disciplinary hearing was scheduled for 9 October 2024. The claimant did not attend on the basis that he needed more time to prepare. An employer who is considering summary dismissal on the basis that the employee is in breach of the employment contract and has committed gross misconduct is allowed, under section 44(3) and (4) of the Act, to issue a short notice and require the employee to attend the disciplinary hearing. The object of summary dismissal would thus be lost if the notice necessary under misconduct pursuant to section 41(1) of the Act is similar to the one under section 44 of the Act. The claimant did not attend the scheduled disciplinary hearing. It is trite that a summons to an employee to attend a disciplinary hearing before the employer must be adhered to. An employee who fails to follow the employer's lawful and proper directions frustrates his own employment. In **Citi Bus Limited v Nene [2026] KEELRC 51 (KLR),** the court held that failure to attend as directed by the employer is tantamount to refusal to attend work. The employee attracts summary dismissal. In [**Okun v Kenyatta University [2023] KEELRC 2340 (KLR)**](https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2340/eng%402023-09-28), the court held that once the employee is given a chance to be heard, he must attend and address his concerns on the shop floor. To remain absent and then assert that his rights were violated is wrong. In Paul **Wanyangah v Market Development Trust t/a Kenya Markets Trust [2017] eKLR** the court held that where an employee squanders the opportunity granted for a fair hearing, the employer is justified to terminate employment for gross misconduct as envisaged under Section 44 of the [*Employment Act*](https://new.kenyalaw.org/akn/ke/act/2007/11), 2007. The court held that: *“Where the employee has the right to a hearing, the employer has the right to terminate the employee upon following due process. Where an employee squanders the chance to be heard the employer cannot be found to have acted unfairly where great effort was taken and is demonstrated to have been applied to have the employee heard but such employee remained adamant and made irrational demands to avoid a hearing.”* This position is aptly captured in the case of **Energy Regulatory Commission v John Sigura Otido [2021] eKLR** the court held that; *An employee who squanders the internal grievance handling mechanisms provided by an employer cannot come to Court and say “I refused to talk with those people and therefore I was not heard, order them to pay me.” It is not the role of the Court to supervise the internal grievance handling processes between employers and employees. The role of the Court is to ensure that such processes are undertaken within the law.* The failure to attend and address as directed led to termination of employment for just cause. The respondent offered the claimant his terminal dues, which the claimant declined. These have since been deposited with the Labour Office. The claimant is at liberty to collect his dues. **The claim is without merit and is dismissed. Costs to the respondent.** **Delivered in open court at Nairobi, this 19th day of May 2026** **M. MBARŨ** **JUDGE** **In the presence of:** Court Assistants: Catherine, Kemboi and Omar ……………………………………………… and …………………………………..…………..