Ngari v Office of the Auditor-General (Employment and Labour Relations Cause E719 of 2025) [2026] KEELRC 2142 (KLR) (23 July 2026) (Judgment)

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT & LABOUR RELATIONS COURT** **AT NAIROBI** **ELRC CAUSE NO. E719 OF 2025** ***(Before Hon. Lady Justice Hellen Wasilwa, J)*** **JOSEPH NDWIGA NGARI....………………………..........…CLAIMANT** **VS** **OFFICE OF THE AUDITOR-GENERAL………..……..…RESPONDENT** **JUDGMENT** 1. The Claimant instituted this claim vide a Memorandum of Claim dated 25th July 2025 and prays that this Court grants him an award as follows: 2. *A declaration that the Respondent’s refusal to pay the Claimant his terminal dues, pension, and provident fund benefits is oppressive, unfair, and unlawful.* 3. *An order directing the Respondent to compute and pay the Claimant his terminal dues and pension benefits per paragraph 7 above.* 4. *An order directing the Respondent to authorize Zamara Actuaries, Administrators & Consultants Ltd to pay the Claimant his provident fund benefits per paragraph 7 above.* 5. *Payment of Ksh. 1,416,636/= per paragraph 9 above, with interest at court rates from the filing date of the suit until payment in full, and issuance with a Certificate of Service.* 6. *General damages for unfair labour practices per paragraph 8 above.* 7. *Costs and interest at the court rates.* **Claimant’s Case** 1. The Claimant avers that he was employed by the Respondent on 5th May 2008 as a driver following a competitive recruitment process. During the interview he submitted his academic certificates, including his KCSE certificate, all of which were verified by the Respondent before his appointment. 2. The Claimant states that sometime in early 2024, the Respondent alleged that he had forged his KCSE certificate to secure employment and was therefore liable for dismissal. 3. He avers that he possessed a valid driving licence, the requisite qualifications, certifications and experience as a driver, and had performed his duties diligently, competently and professionally without any complaints. 4. The Claimant further avers that following the said allegations, the Respondent created a hostile and toxic work environment for him and other drivers facing similar accusations. 5. He states that being 54 years old and due to retire in 2030, he could not cope with the toxic work environment and consequently sought early retirement by his letter dated 15th March 2024. 6. It is the Claimant’s case that although the Respondent accepted his request for early retirement, it unlawfully withheld his terminal dues, pension benefits and Provident Fund benefits managed by Zamara Actuaries, Administrators & Consultants Ltd, citing the alleged forgery of his KCSE certificate as the reason for withholding the said payments, thereby giving rise to the present claim. 7. The Claimant further avers that he was a victim of favoritism, nepotism, negative ethnicity, harassment, discrimination and bias practised by the Respondent in the workplace. 8. He contends that the said acts constituted unfair labour practices contrary to Article 41(1) of the Constitution, and therefore seeks general damages to be assessed by the Court. 9. The Claimant further states that the early retirement was forced upon him by the Respondent’s unfair labour practices and the toxic work environment and therefore amounted to constructive dismissal. Consequently, he seeks one month's salary in lieu of notice in the sum of Kshs.108,972 and compensation equivalent to twelve months’ salary under Section 49 of the Employment Act amounting to Kshs.1,307,664. 10. The Claimant avers that despite issuing a demand and notice of intention to sue, the Respondent failed to admit liability, necessitating the filing of the present suit. 11. He further states that this Court has jurisdiction to hear and determine the claim and that there are no previous or pending proceedings between the parties over the same subject matter. **Respondent’s Case** 1. The Respondent never entered appearance in the matter, thus, the Court directed on 29th April 2026 that the matter proceeds ex-parte by way of documentary evidence. **Claimants’ Submissions** 1. The Claimant submitted on three issues: whether the Respondent unlawfully withheld the Claimant’s terminal dues, pension and provident fund benefits; whether the Respondent violated the Claimant’s right to fair labour practices; and whether the Claimant is entitled to the relief sought. 2. On the first issue, the Claimant submitted that he voluntarily applied for early retirement vide a letter dated 1st March 2024, which request was accepted by the Respondent. Upon acceptance of the retirement request, the employment relationship lawfully came to an end and the Claimant became entitled to his terminal dues and accrued retirement benefits. However, the Respondent unlawfully withheld these benefits on the basis of a mere allegation of forgery, and that terminal dues and retirement benefits. 3. It is the Claimant’s submission that terminal dues and retirement benefits are accrued rights arising from contract of employment and pension scheme contributions and cannot be arbitrarily withheld without legal justification. The Respondent did not demonstrate any lawful order, contractual clause or pension scheme provision authorising the withholding of the Claimant's accrued benefits. 4. The Claimant submitted that pension and provident fund benefits are generally vested contractual and statutory rights which an employer cannot ordinarily withhold merely on the basis of allegations, absent a lawful basis in the scheme rules or a court order, they being vested entitlements earned through years of service and contribution rather than gratuities bestowed at the employer's pleasure. 5. In support thereof, the Claimant cited [***Kyalo & 6 others v Kenya Railways Corporation & 8 others [2025] KEELRC 828 (KLR)***](https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/828/eng%402025-03-11), where it was held that withholding an employee's pension and terminal benefits in similar circumstances is unlawful, and that such action was unconstitutional, null and void. Reliance was further placed on [***Kenfreight (E.A) Limited v Benson K. Nguti [2016] eKLR***](https://new.kenyalaw.org/akn/ke/judgment/keca/2016/409/eng%402016-07-01), in which the Court of Appeal reaffirmed that employees are entitled to remedies where an employer acts contrary to the Employment Act and unfairly interferes with an employee's rights and dues, and emphasized that statutory rights of employees cannot be defeated by arbitrary employer conduct. 6. The Claimant submitted that he has not been convicted of any offence relating to forgery, therefore, the Respondent acted unlawfully, unfairly and unconstitutionally in withholding his retirement benefits, in breach of his contractual and statutory rights. 7. On the second issue, the Claimant submitted that Article 41 of the Constitution guarantees every employee the right to fair labour practices. He has demonstrated that he worked under a hostile work environment characterized by favoritism, nepotism, harassment, discrimination and bias. 8. It was submitted that instead of addressing the Claimant's grievances and processing his retirement benefits, the Respondent resorted to raising allegations after he had already sought retirement. The uncontested evidence being that the Claimant was employed following a competitive recruitment process and faithfully discharged his duties for over sixteen years before the Respondent. In early 2024, the Respondent suddenly accused him of having forged his KCSE certificate and subjected him to a hostile and toxic work environment, eventually compelling him to seek early retirement. 9. He submitted that the Respondent thereafter withheld the Claimant's terminal benefits on the basis of an EACC advisory, despite there being no criminal conviction against him. 10. The Claimant submitted that the timing of the allegations against the Claimant raises a legitimate inference of bad faith and victimization. The Respondent's conduct amounted to unfair labour practice contrary to Article 41 of the Constitution, thereby fundamentally breaching the implied duty of mutual trust and confidence by accusing the Claimant of forgery after over sixteen years of service and subjecting him to a toxic working environment. 11. It was further submitted that the working conditions became unbearable and intolerable to the extent that the Claimant was compelled to apply for early retirement by his letter dated 1st March 2024, and instead of processing the retirement in good faith, the Respondent subsequently issued a show cause letter raising allegations of forgery after the retirement request had already been made. 12. He submitted that withholding an employee's pension and terminal dues and benefits itself amounts to unfair labour practice. 13. On the reliefs sought, the Claimant submitted that based on the strength of the case law cited, he is entitled to the relief sought in the suit. 14. I have examined all the evidence and submissions of the parties herein. This claim proceeded for formal proof, the respondents having been served and having failed to enter any appearance or file any defence. 15. It is therefore largely true that the claimants case remained uncontroverted. From the documents submitted by the claimant, the claimant was an employee of the claimant. It is also true that the claimant sought to retire early from the respondent’s employment vide a letter dated 1/3/2024. Vide a letter dated 10/6/2024, his request to retire early was accepted by the respondents but who informed him that his terminal benefits would be withheld. 16. The respondents have not submitted any evidence before this court that the claimant had been found culpable of forging academic documents. 17. The only evidence before this court is that the claimant chose to retire early and his request was allowed. Any other issue of forgery remains speculative and cannot be relied upon to deny the claimant his benefits. It is therefore my finding that the claimant is entitled to his retirement benefits as prayed for in this claim and which I grant and enter judgment for him as prayed as follows: 18. That the respondents do proceed to process and pay the claimant’s terminal dues, pension and provident fund benefits. 19. An order directing respondents to authorize Zamara Actuaries Administrators and Consultants to pay the claimant his provident fund benefits. 20. In view of the delay occasioned to the claimant in not processing his dues, I order the respondents to pay him 3 month’s salary as compensation for the unfair labour practices meted against him being = 3x108,972= **kshs 326,916/-.** 21. The respondents will pay costs of this suit plus interest at court rates with effect from the date of this judgment. **Dated, Signed and Delivered virtually at Nairobi this 23rd Day of July 2026.** **HELLEN WASILWA** **JUDGE**