https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1469

Nduati v Ola Energy Kenya Limited (Cause 45 of 2020) [2026] KEELRC 1469 (KLR) (28 May 2026) (Judgment) Neutral citation: [2026] KEELRC 1469 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Mombasa Cause 45 of 2020 K Ocharo, J May 28, 2026 Between Jesse Nduati Claimant and Ola Energy Kenya Limited Respondent Judgment Background 1.Contending that at all material times he was an employee of the Respondent, who they unfairly and unconstitutionally dismissed from employment, the Claimant sued the Respondent, seeking the following remedies;a)A declaration that the dismissal of the Claimant from service was unfair, unjust and unconstitutional.b)An order directing the respondent to pay the claimant his terminal dues amounting to KShs 11,341,144/=.c)An order directing the Respondent to issue the Claimant a certificate of service.d)Costs of the suit and interest. 2.The Respondent opposed the Claimant’s case via the Memorandum of Response dated 7th September, 2020. The Respondent contended that the Claimant was fairly dismissed following a proven allegation of bribery against him, and adherence to the dictates of procedural fairness. The Claimant is not entitled to the reliefs sought. Claimant’s case 3.The Claimant asserts that he commenced employment with the Respondent on 16th February 2009 as a Consignment Stock Supervisor, with a salary below Kshs 40,000. Through diligent effort and career advancement within the organisation, he was promoted to the position of LOBP Blending Supervisor based in Mombasa. At the time of his dismissal, he was earning a monthly salary of Kshs 148,237.04. 4.The Claimant states that on 19th December 2019, he was suddenly notified by email to attend a disciplinary hearing in Nairobi, scheduled for 23rd December 2019, regarding allegations of bribery. He claims that before receiving this notice, he was unaware of any investigation involving him. 5.He attended the hearing as instructed but alleges that he was not informed of his accusers' identities and was not afforded a fair opportunity to defend himself. He subsequently returned to work until 2nd April 2020, when the Respondent terminated his employment on the grounds that he had accepted a bribe. 6.He further states that on 19th September 2019, he signed out at around 1717 hours, but shortly afterwards received a call from his supervisor requesting that he return to resolve a slops issue. He did so before signing out again at 1756 hours. 7.The Claimant testified that the email summoning him to attend the disciplinary hearing indicated that he was being accused of soliciting and receiving a bribe of KShs 12,000/= in order to release a truck loaded with waste products. 8.The Claimant denied the allegations that he delayed the truck for four hours to solicit a bribe. He testified that, according to the Truck Gate Control Record, truck registration number KCB 186Y remained within the premises for only about 40 minutes, having entered at 17:20 hours and exited at 18:00 hours, which he considered a normal turnaround time. 9.He further testified that invoices were generated by the customer service department and that he had no control over when invoices were brought to the operations department for processing. According to him, the alleged four-hour delay was based solely on the time the invoice was generated and the time the truck exited the premises, without considering when the truck and invoice were presented to the operations department. 10.The Claimant further testified that the disciplinary committee’s recommendations were only supplied to him more than a year later and that he was not paid salary for the two days worked in April 2020, his accrued leave days, or salary in lieu of notice. 11.During cross-examination, the Claimant confirmed that his contract incorporated the Respondent’s corporate policies, including the Ethics and Conflict of Interest Policies, and that he had attended policy training in September 2018. He acknowledged receipt of the invitation letter dated 19th December 2019 and admitted to attending the first disciplinary hearing and signing the minutes. 12.He also acknowledged receiving and signing the invitation letter dated 17th February 2020, inviting him and his witnesses to the second disciplinary hearing scheduled for 24th February 2020. He further acknowledged that the minutes listed him as a participant and that his witnesses testified before the disciplinary panel. However, he maintained that the process was unfair and alleged that records had been altered to indicate that he attended the second hearing. 13.He also admitted receiving and signing the dismissal letter dated 2nd April 2020, and confirmed that he did not appeal against the dismissal, despite being informed of his right of appeal. Respondent’s case 14.The Respondent called one witness, Irene Mwangangi, its Human Resources Manager, to testify on their behalf. The witness stated that the Claimant initially joined the company in 2007 as a temporary machine operator, earning KES 25,000/=, before being formally employed in 2009 as a Consignment Stock Supervisor following a restructuring. Over time, he was promoted to Blending Supervisor at the LOBP terminal in Mombasa, and his salary increased accordingly. At the time of his dismissal, he was earning KShs. 60,389.15. 15.On 30th September 2018, the Respondent organised a Human Resources & Foundations Policies Training, which the Claimant attended for the purposes of familiarising the Claimant with the Company’s Ethics Policy and Conflict of Interest Policy. 16.RW1 testified that on 23rd September 2019, the Respondent received a complaint from a client, Jorda Company, alleging that the Claimant had demanded a bribe of Kshs 12,000/= from the company’s agent before releasing products that had already been paid for. 17.She further stated that the Audit and Control Department conducted investigations, recorded statements from the persons involved, including Simon Waweru Mwangi, and interviewed the Claimant during the investigations. According to RW1, the investigations established that the Claimant had a case to answer, leading to the disciplinary proceedings. 18.The witness further testified that as a result, the Claimant was invited to the first disciplinary hearing through a letter dated 19th December 2019, which outlined the allegations against him and informed him of his right to call witnesses. The Claimant was further informed that, were he to find the notice to be short, he had the liberty to inform the Respondent and seek that the hearing be rescheduled. 19.At the first hearing, the Claimant was required to answer the following allegations;a.That on Thursday, 19th September 2019, he requested for and received a bribe of KShs. 12,000 to facilitate the release of 12 drums of Lubes Red Slops that had been loaded into a truck for delivery to a customer, Jorda Company. The money was demanded from and released by Mr Simon Waweru Mwangi, the representative of Jorda Company; andb.That the bribe was paid out after he threatened not to release the truck that had been loaded with the said drums at the LOBP facility in Mombasa. 20.On 23rd December 2019, the Claimant attended the hearing alone and informed the 3-Member panel comprising the chairperson, secretary and member that he was fully aware of the purpose of the hearing. 21.On 17th February 2020, the Claimant was informed by the Respondent of another hearing [the 2nd hearing] to give him a chance to call his witnesses. The hearing took place on 24th February 2020. The two witnesses gave their statements before the Panel. 22.Following intense consultations, the Respondent, on 2nd April 2020, decided to terminate the services of the Claimant and informed him of the decision, advising that he was entitled to appeal the decision of the disciplinary committee if he was unsatisfied with it. 23.The termination of the Claimant’s employment was in accordance with the Respondent’s policies and the dictates of the law. 24.Cross-examined, the witness testified that prior to the alleged infraction, which culminated in the Claimant’s dismissal, the Claimant did not have any disciplinary issues. 25.The witness further testified that the issue of the delayed release of the truck was not the subject matter of the Claimant’s dismissal from employment. The allegation of soliciting and receiving a bribe was. 26.She stated that she participated in the disciplinary process only to a limited extent. Ensuring that the process kicks off. 27.Cross -examined further, the witness stated that per the termination letter, one of the grounds for the termination of the Claimant’s employment was that he failed to explain why a truck took four hours to leave the station. 28.The truck gate control is normally generated at the gate into the LBB terminal. Per the documents produced by the Claimant, the truck KBY186Y spent 40 minutes in the loading yard. The document does not show 4 hours. 29.The Claimant was not informed that investigations were being conducted against him because of the sensitivity of the matter. The outcome of the investigations was only brought to his attention during the disciplinary hearing. 30.People who were at within the loading area recorded statements during the investigations. They were his supervisor and immediate report. The person who made the complaint gave a statement regarding the bribery. The statement is dated 30th October 2019. 31.The invoice dated 19th September shows the recipient as Joseph Wangombe not Samuel Waweru. According to the invoice, the driver of the truck was Rama Kombo. 32.The witness asserted that the Claimant was paid a month’s salary in lieu of notice. However, it was later on discovered that the payment did not go thorough following a system error. When they wanted to send it to the Claimant, the Claimant insisted that it be paid through his Counsel. Claimant’s Submissions 33.The Claimant’s Counsel identifies the following issues for determination;a.Whether the Claimant was wrongfully terminated.b.Whether the Claimant is entitled to Notice pay.c.Whether the Claimant is entitled to 2 days salary for April 2020, 2 1/2 leave days & pay in lieu of Notice.d.Whether the Claimant is entitled to damages for wrongful dismissal. 34.It is submitted that the Respondent failed to demonstrate that the termination of the Claimant’s employment met the legal threshold, adherence to procedural fairness edicts and demonstration of substantive justification. The accusation of soliciting and receiving of a bribe was not proved at all. The person from whom the bribery was solicited and given, did not testify. 35.The Claimant maintains that his terminal dues remain unpaid and that the Respondent breached the provisions of the Employment Act by failing to pay the reliefs sought. 36.The Claimant states that he was summoned by an email sent on Friday, 19th December 2019, at around 4:00 p.m., requiring his attendance at a disciplinary hearing in Nairobi on Monday, 23rd December 2019, concerning allegations that he had solicited and accepted a bribe of Kshs 12,000/= to facilitate the release of a truck loaded with goods. 37.He argues that the notice was sudden and insufficient, given that he was based in Mombasa and had limited time to travel to Nairobi. He also states that he was never given a chance to confront or question his accuser, Simon Waweru Mwangi, who did not testify during the disciplinary proceedings, and that no criminal charges were ever brought against him regarding the alleged bribery. 38.The Claimant disputes the allegation that he detained the truck for four hours and states that the Truck Gate Control Record shows truck registration number KCB 186Y entered the premises at 17:20 and left at 17:56, indicating it was on the premises for only about 40 minutes. He explains that he initially signed out at 17:17 but was called back by his supervisor at 17:19 to resolve a dispute before ultimately departing at 17:56. 39.He also clarifies that the invoice dated 19th September 2019 was issued by the customer service department, not by him, and that the persons who confirmed receipt of the goods in good condition were Joseph Wang’ombe and the driver Rama Kubo. According to the Claimant, his name did not appear on the invoice, so no misconduct can be attributed to him. 40.The Claimant further submits that during cross-examination, the Respondent’s witness admitted that there was no direct evidence linking him to the alleged bribery, including the absence of Mpesa records, bank transfers, or cash evidence, and that the Respondent solely relied on the statement of Simon Waweru Mwangi, who never testified. 41.He maintains that the allegations against him remained entirely unsubstantiated and that the Respondent consequently lacked a valid and fair reason for dismissal. He therefore seeks one month’s salary in lieu of notice, payment for 2½ leave days and 2 days worked in April 2020, compensation equivalent to 12 months’ salary for unfair termination, service pay, and the issuance of a certificate of service. 42.In support of his case, the Claimant relies on Pamela Lutta v Mumias Sugar Co Ltd, Nairobi ELRC No. 293 of 2015 [2017] eKLR, Philip K Tuitoek v Kingdom Bank Ltd, Kericho ELRC No. 004 of 2020 [2022] eKLR, Naima Khamis v Oxford University Press [2017] eKLR, and Pius Machafu Isindu v Lavington Security Guards Ltd [2017] eKLR. Respondent’s Submissions 43.The Respondent submits that during cross-examination, the Claimant admitted that his employment contract incorporated the company’s ethics and conflict of interest policies, and further confirmed that he had attended a foundational policies training session, where he signed the attendance register. 44.The Respondent further states that the Claimant admitted attending the disciplinary hearings held on 23rd December 2019 and 24th February 2020, together with two witnesses, namely George Madede and Joseph Odawa. 45.According to the Respondent, the Claimant also acknowledged receipt of the dismissal letter dated 2nd April 2020 and confirmed that he had read and understood its contents. The Respondent further contends that the Claimant acknowledged receipt of his final dues and confirmed that he had no further claims against the Respondent. 46.It is also submitted that, despite being informed of his right to appeal, the Claimant never lodged an appeal against the dismissal decision, which the Respondent argues demonstrates acceptance of the outcome. 47.The Respondent relies on the evidence of RW1, Irene Mwangangi, who testified that the disciplinary proceedings commenced after receiving a complaint from Jorda Company alleging that the Claimant had solicited a bribe in breach of the Respondent’s Ethics and Conflict of Interest Policies. 48.The Respondent explains the invoice generation and loading process at the Lubes Oil Blending Plant and states that, in the relevant transaction involving Jorda Company, the invoice was issued around 13:38 hours, while the truck left the terminal gate at 18:00 hours. 49.The Respondent further submits that, because the allegations involved bribery, the investigations were kept confidential due to the sensitivity of the matter. It also states that, although arrangements had been made to release the Claimant’s final dues, he was allegedly unreachable, and the Respondent remained willing to release the funds. 50.The Respondent contends that the Claimant’s dismissal was both procedurally and substantively fair under the Employment Act. Regarding procedural fairness, the Respondent asserts that the Claimant received an invitation to a disciplinary hearing dated 19th December 2019, which set out the allegations against him and informed him of his right to respond, present evidence, and be accompanied by a fellow employee during the hearing. 51.The Respondent further claims that the hearing held on 23rd December 2019 complied with Section 41 of the Employment Act, and an additional disciplinary hearing was conducted on 24th February 2020, attended by the Claimant along with two witnesses. 52.Accordingly, the Respondent maintains that it fully adhered to the requirements of procedural fairness. In support of this position, the Respondent cites Iyego Farmers Co-operative Sacco v Kenya Union of Commercial Food and Allied Workers [2015] KECA 302 (KLR). 53.On substantive fairness, the Respondent submits that the disciplinary reports dated 23rd December 2019 and 2nd March 2020 established that the Claimant had violated the Respondent’s Ethics and Conflict of Interest Policies. 54.The Respondent argues that the complaint by Jorda Company, together with the findings of the disciplinary hearings, justified the dismissal. It therefore maintains that the dismissal was in accordance with Section 44(4)(g) of the Employment Act, which permits dismissal where an employee is reasonably suspected of committing a criminal offence against the employer or its property. 55.In support of this argument, the Respondent relies on Kenya Revenue Authority v Reuwel Waithaka Gitahi & 2 others [2019] KECA 300 (KLR). 56.The Respondent further submits that the Claimant acknowledged the dismissal letter and agreed that upon receipt of his final dues, he would have no further claims against the Respondent. It argues that this created a binding contract between the parties and that the court’s role is limited to enforcing it. In support of this position, the Respondent relies on Coastal Bottlers Limited v Kimathi Mithika [2018] KECA 523 (KLR). 57.The Respondent asserts that the Claimant is not entitled to the reliefs sought because the dismissal complied with the prescripts of both procedural and substantive fairness. It claims that the Claimant was issued a certificate of service as indicated in the dismissal letter. 58.Regarding service pay, the Respondent argues that the Claimant is not eligible because he was a member of, and contributions on his account had been remitted to, the National Social Security Fund (NSSF), and Section 35(6)(d) of the Employment Act excludes employees who are members of NSSF from claiming service pay. Analysis and determination 59.I have carefully considered the pleadings, evidence and submissions by the parties, and the following issues emerge for determination;a.Whether the summary dismissal against the Claimant was unfair.b.Whether the Claimant is entitled to the reliefs sought. 60.It now trite that for a termination of an employee’s employment, to pass the fairness test, it must be demonstrated that it was procedurally fair and substantively justified. In Pius Machafu Isindu v Lavington Security Guards Limited [2017] eKLR, the Court of Appeal emphasized that employers bear a heavy obligation to justify termination and to comply with procedural fairness.“There can be no doubt that the Act, which was enacted in 2007, places heavy legal obligations on employers in matters of summary dismissal for breach of employment contract and unfair termination involving breach of statutory law. The employer must prove the reasons for termination/dismissal (section 43); prove the reasons are valid and fair (section 45); prove that the grounds are justified (section 47(5) ... A mandatory and elaborate process is then set up under section 41 requiring notification and hearing before termination.” 61.Section 41 of the Employment Act, 2007, sets out a mandatory procedure that any employer contemplating terminating an employee’s employment or summarily dismissing an employee must follow. The procedure set out in that section encompasses three ingredients. All of them must be present in the process leading to the decision to terminate or summarily dismiss. The absence of any of them shall render the termination/summary dismissal procedurally unfair. 62.The employer must inform the affected employee of their intention to take disciplinary action against them, the reasons and basis for the intended action, afford them an adequate opportunity to make representations on those grounds, and consider those representations before making a final decision on the matter. 63.In Anthony Mkala Chitavi–Vs- Malindi Water & Sewerage Co. LTD- Mombasa Industrial Cause No. 64 of 2012 (2013) eKLR, the Court aptly addressed procedural fairness, thus,“The ingredients of procedural fairness, as I understand it within the Kenyan situation, are that the employer should inform the employee as to what charges the employer is contemplating using to dismiss the employee. This gives a concomitant statutory right to be informed to the employee.Secondly, it would follow naturally that if an employee has a right to be informed of the charges, he has a right to a proper opportunity to prepare and to be heard and to present a defence/state his case in person, writing or through a representative or shop floor union representative if possible.Thirdly, if it is a case of summary dismissal, there is an obligation on the employer to hear and consider any representations by the employee before making the decision to dismiss or give another sanction.” 64.It is not in dispute that by a letter dated 19th December 2019, the Respondent invited the Claimant to a disciplinary hearing that was slated for 23rd December 2019. The letter outlined the allegations against him and informed him of his right to call witnesses. The Claimant admitted attending the first disciplinary hearing and signing the minutes. 65.The Respondent convened a second disciplinary hearing on 24th February 2020 to enable the Claimant to present his witnesses. The Claimant acknowledged receipt of the invitation letter dated 17th February 2020 and admitted that his witnesses gave evidence before the disciplinary panel. He also admitted receiving the termination letter and being informed of his right of appeal, which he never exercised. 66.By reason of the foregoing premises, one can easily be tempted to conclude that the Respondent duly complied with the edicts of procedural fairness as contemplated in law. However, it is here that I must point out, as I have time and again, that the stipulations of section 41 of the Employment Act cannot be read in isolation from constitutional stipulations that speak to procedural fairness, more particularly Articles 47 [the right to fair administrative action], and 50[the right to a fair hearing], and the tenets of natural justice. 67.Procedural fairness in disciplinary processes involving employees is now a constitutional imperative and cannot be disregarded by an employer. See Chief Registrar of Judiciary & 2 others v LMN [2025] KESC 53[KLR]. 68.I have agonised over this. The Claimant was accused of grave misconduct that, in nature, amounted to a criminal offence. His accuser, the person from whom he allegedly solicited and obtained a bribe, was not called to the disciplinary hearing to tender evidence in support of the complaint or to be cross-examined by the Claimant. The Court has not lost sight of the fact that the Claimant was kept in the dark about the investigations conducted against him on the basis of those accusations. I find that the hearing was procedurally unfair, as it violated the Claimant’s right to a fair hearing under Article 50 of the Constitution. 69.I now turn to consider whether the Respondent has established that they had a valid and fair reason to summarily dismiss the Claimant from employment, thereby discharging the legal burden under Section 45 of the Employment Act. In dismissing the Claimant, the Respondent relied principally on the complaint lodged by Jorda Company, the statement allegedly recorded from Simon Waweru Mwangi, and the findings of the disciplinary panel. However, neither the alleged complainant nor the alleged bribe-giver testified during the disciplinary process or before this court. Further, RW1 admitted that there was no direct evidence linking the Claimant to the alleged bribery, including Mpesa statements, bank transfers, cash evidence, or any independent corroboration. 70.The Claimant stated that the truck with registration number KCB 186Y entered the premises at 17:20 and left at 18:00, remaining on the premises for approximately 40 minutes. The Respondent did not rebut this documentary evidence. 71.Although the Respondent relied on the invoice time of 13:38 hours, the Claimant explained that invoices were generated by the customer service department, separate from the operations department, and that there was no evidence indicating when the invoice was actually brought to the operations department for processing. That explanation was not dislodged by the Respondent. 72.The Respondent may have harboured suspicions about the Claimant, but the material before the court fell short of proving, on a balance of probabilities, that the Claimant solicited or received a bribe. The allegations remained largely unsupported by direct evidence. In Naima Khamis v Oxford University Press [2017] eKLR, the court reiterated that reasons for termination must be supported by evidence.“It is necessary to point out that reasons for termination of a contract are matters that an employer at the time of termination of the contract can genuinely support by evidence...” 73.In the upshot, this Court comes to the conclusion that the summary dismissal against the Claimant was both procedurally and substantively unfair.Whether the Claimant is entitled to the reliefs sought One month's salary in lieu of notice 74.The Respondent acknowledged that the Claimant’s dues, including notice pay, had been computed but were allegedly not remitted due to a system failure. The Claimant also denied receiving payment. The Respondent did not produce proof of actual remittance. Consequently, the Claimant is entitled to one month’s salary in lieu of notice in the sum of KShs 148,237.04/=. 2 days worked in April 2020 75.RW1 admitted that the dues had been calculated but not paid. In the absence of proof of payment, the Claimant is entitled to payment for the outstanding leave days and salary for the days worked in April 2020. Compensation for unfair termination 76.Having found that the Respondent’s summary dismissal of the Claimant was both procedurally and substantively unfair, and considering the circumstances of the dismissal, including the manner in which it occurred without adherence to the tenets of procedural and substantive fairness, the length of service [2009-2020] by the Claimant, and the fact that, throughout the history of his employment, he had not had any disciplinary issues, as confirmed by the Respondent’s witness, I am persuaded that the Claimant is entitled to compensation under Section 49 of the Employment Act. He is hereby awarded six months’ gross salary. SUBDIVISION - Service pay 77.The Respondent demonstrated that the Claimant was a contributing member of NSSF. Section 35(6)(d) of the Employment Act excludes employees who are members of NSSF from claiming service pay. The prayer for service is, therefore, declined. 78.The Claimant is also entitled to costs of the suit and interest. 79.In the upshot, judgment is hereby entered for the Claimant in the following terms;a.A declaration that the summary dismissal against him was both procedurally and substantively unfair.b.Compensation pursuant to Section 49[1][c] of the Employment Act, six months’ gross salary, KShs. 889, 482.24.c.One month’s salary in lieu of notice, KShs. 148, 237.04.d.Salary for 2 days worked in April 2020, KShs. 9,882.50.e.Interest on the awarded amounts from the date of this judgment till full payment.f.The Respondent to issue the Claimant a certificate of service within 30 days of this judgment.g.Costs of this suit. READ, SIGNED, AND DELIVERED THIS 28TH DAY OF MAY 2026.OCHARO KEBIRAJUDGE