Nyabuta v Moi University (Cause E065 of 2025) [2026] KEELRC 1757 (KLR) (25 June 2026) (Judgment)

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT ELDORET** **CAUSE NO. E065 OF 2025** *(Before Hon. Lady Justice Maureen Onyango)* **JEREMIAH S.O. NYABUTA ……………..………….…….... CLAIMANT** **VERSUS** **MOI UNIVERSITY ……….………………................... RESPONDENT** **JUDGMENT** 1. The Claimant has described himself in his Memorandum of Claim as an active and duly elected official of the Universities Academic Staff Union (UASU), Moi University Chapter, serving as the Organizing Secretary pursuant to Article 20 of the UASU Constitution. 2. The Respondent is a public university established under the provisions of the Universities Act. **The Claimant's Case** 1. In the Memorandum of Claim dated 3rd December 2025, the Claimant avers that the Respondent and the Universities Academic Staff Union (UASU) are parties to a valid and subsisting Recognition Agreement entered into between the Inter-Public Universities Councils Consultative Forum (IPUCCF) and UASU, under which the Respondent is expressly listed in Schedule A as one of the universities bound by the Agreement. 2. The Claimant further avers that the Respondent and UASU are parties to a duly registered Collective Bargaining Agreement (CBA), which expressly provides that the Respondent may terminate an employee's appointment only upon issuance of the requisite notice, save where lawful grounds for summary dismissal exist. 3. It is the Claimant’s case that on 10th September 2025, UASU issued a strike notice to all universities covered by the Recognition Agreement and the CBA, including the Respondent herein. 4. The Claimant avers that as the Organizing Secretary, part of his mandate during the strike period entailed mobilizing union members, organizing conferences and undertaking publicity activities on behalf of the Union. 5. The Claimant further avers that his actions on 6th October 2025 including mobilizing academic staff to refrain from administering examinations, were undertaken solely in his capacity as a union official during an active strike. 6. It is the Claimant’s contention that during the pendency of the strike, the Respondent irregularly issued him with a Show Cause Letter and Suspension Letter dated 9th October 2025, followed by a Notice of Disciplinary Hearing dated 29th October 2025 inviting him to attend a disciplinary hearing scheduled for 7th November 2025. 7. The Claimant avers that he duly responded to the Show Cause Letter through letters dated 13th October 2025 and 21st October 2025, denying any wrongdoing and maintaining that his actions were undertaken in the discharge of his union duties and were protected by law. 8. The Claimant further avers that on 5th November 2025, the Inter-Public Universities Councils Consultative Forum (IPUCCF) and UASU executed a Return-to-Work Formula (RTWF), which waived all disciplinary actions arising from the strike, suspended any ongoing disciplinary proceedings and guaranteed the non-victimization of employees and union officials. 9. The Claimant states that on 7th November 2025, the Return-to-Work Formula was adopted as an Order of the Court in *Nairobi ELRC Cause No. E214 of 2025*, *Inter-Public Universities Councils Consultative Forum (IPUCCF) v Universities Academic Staff Union (UASU) & Others (2025)*, thereby rendering its terms binding upon the Respondent. 10. The Claimant avers that notwithstanding the said Court Order, the Respondent issued him with a second Notice of Disciplinary Hearing dated 19th November 2025, in blatant disregard of the Return-to-Work Formula and that the disciplinary hearing was scheduled for 25th November 2025. 11. The Claimant states that he attended the disciplinary hearing accompanied by UASU National Officials, including the Secretary-General, Dr. Constantine Wasonga, who advised the Respondent that the disciplinary proceedings were in violation of the Court Order and the Return-to-Work Formula, both of which had waived disciplinary action arising from conduct undertaken during the strike. 12. The Claimant further states that on the same day, 25th November 2025, the Respondent proceeded to issue him with a letter of summary dismissal, terminating his employment without notice, on allegations of gross misconduct allegedly committed during the strike period. 13. According to the Claimant, the summary dismissal violated the Return-to-Work Formula, the Court Order, the Collective Bargaining Agreement, the Recognition Agreement, the Employment Act and Articles 36, 41 and 47 of the Constitution. 14. The Claimant contends that the Respondent's actions amounted to victimization on account of his union activities, bad faith, procedural unfairness and contempt of court. 15. The Claimant further avers that the disciplinary process and subsequent termination were undertaken in contravention of a subsisting Court Order, thereby rendering the termination unlawful, illegal, null and void. 16. In addition, the Claimant avers that the disciplinary proceedings and termination violated Sections 5(3) and 46(c), (e), and (i) of the Employment Act, as well as Section 79 of the Labour Relations Act. 17. The Claimant thus maintained that the Respondent breached Sections 41, 43, 45 and 47 of the Employment Act by failing to provide valid and fair reasons for termination, failing to adhere to due process, acting contrary to the provisions of the Collective Bargaining Agreement and dismissing him without notice or payment in lieu thereof. 18. He therefore sought for the following orders: - 19. Declaration that the Respondent's summary dismissal of the Claimant on 25th November 2025 was illegal, unfair, unconstitutional and in violation of the Return -To-Work Formula and Court Order. 20. An order nullifying and setting aside the termination letter dated 25th November 2025. 21. An order for reinstatement of the Claimant without loss of salary, benefits, seniority, or continuity of employment, pursuant to Sections 49 and 50 of the Employment Act. 22. In the alternative maximum compensation for unfair termination under Section 49(1)(c). 23. A declaration that the Respondent engaged in prohibited union victimization contrary to the Constitution and Labour Relations Act. 24. Costs of the claim. ***The Respondent’s case*** 1. The Respondent filed a Response to the Memorandum of Claim dated 16th January 2026 in which it averred that the Claimant failed to adhere to the laid down internal disciplinary procedures stipulated in the UASU CBA by refusing to participate in the disciplinary proceedings. 2. In response to the Claimant's averment that he merely mobilized academic staff to refrain from administering examinations in the discharge of his duties as a union official during an active strike, the Respondent contends that the Claimant's actions on 6th October 2025 were undertaken in his capacity as an employee of the Respondent and not as an official of UASU. The Respondent further asserts that, in the course of those actions, the Claimant engaged in unlawful conduct by: 3. Harassing staff members who had been assigned the responsibility of administering the examinations. 4. Intimidating students who were sitting for the special examinations and causing anxiety among them. 5. Circulating personal information and making disparaging remarks against staff members who were on duty. 6. The Respondent avers that the conduct complained of, which gave rise to the disciplinary proceedings, constituted unlawful acts that are not protected under the Labour Relations Act or the Return-to-Work Formula. 7. In response to the Claimant's allegation that he was irregularly issued with a Show Cause Letter and Suspension Letter dated 9th October 2025, the Respondent maintains that the notices were lawfully issued and clearly set out the allegations against him, which amounted to gross misconduct. 8. It is the Respondent’s case that following the invitation to attend a disciplinary hearing issued on 29th October 2025, the Claimant neither communicated any intention not to attend nor provided any justification for his absence, but deliberately failed to attend the disciplinary proceedings scheduled for 7th November 2025. 9. According to the Respondent, by a letter dated 13th November 2025, the Claimant demanded the withdrawal of the Show Cause Letter and Suspension Letter on the basis of the Return-to-Work Formula. The Respondent states that it responded by a letter dated 14th November 2025 clarifying that the matters under investigation did not relate to the Claimant's discharge of his duties as a UASU official, but rather concerned allegations of harassment of students, disruption of special examinations and circulation of personal information on social media. 10. The Respondent further avers that it afforded the Claimant a second opportunity to be heard by inviting him to attend a disciplinary hearing scheduled for 25th November 2025 through a letter dated 19th November 2025. 11. The Respondent contends that the Claimant attended the disciplinary hearing on 25th November 2025 in the company of UASU national officials but declined to participate in the proceedings. 12. According to the Respondent, despite the Chairperson's clarification that the proceedings concerned the Claimant in his capacity as an employee and not as a union official, the Claimant and the accompanying union officials elected to walk out of the hearing. 13. The Respondent avers that upon considering the allegations against the Claimant, the witness statements, documentary evidence and the nature of the offences alleged, the disciplinary committee resolved to terminate the Claimant's employment and accordingly issued him with a termination letter dated 25th November 2025. 14. The Respondent further states that upon receipt of the termination letter, the Claimant had a right of appeal under the applicable Human Resource Manual and the Moi University Statutes but failed to pursue the available internal appellate mechanisms. 15. It is the Respondent’s position that the allegations against the Claimant were unrelated to the industrial strike and therefore fell outside the scope of the Return-to-Work Formula. In this regard, the Respondent contended that the Labour Relations Act does not shield employees from disciplinary action or prosecution for conduct that constitutes an offence merely because such conduct occurred during the course of an industrial action. 16. The court was thus urged to dismiss the Claimants suit with costs. 17. When the matter came up for hearing on 20th January 2026, Ms. Akinyi, appearing for the Claimant, informed the Court that Counsel Mengich for the Respondent had proposed that the matter be disposed of by way of written submissions. The proposal was adopted and the parties were advised to convert their witness statement into sworn witness statements or file witness affidavits. The parties duly complied and also filed their respective written submissions. **The Claimant’s submissions** 1. The Claimant in his submissions dated 29th January 2026 identified the issues for determination to be:- 2. Whether the Claimant's termination by the Respondent was unfair and unlawful 3. Whether the Claimant is entitled to the reliefs sought in the Claim 4. On the issue whether the Claimant's termination by the Respondent was unfair and unlawful, the Claimant submitted that the evidence before the Court demonstrates that the nationwide UASU strike declared on 10th September 2025 remained in force as at 6th October 2025. According to the Claimant, although the Respondent alleged the existence of a court order suspending or prohibiting the strike on that date, no such order was produced before the Court. The Claimant avers that on his part, he placed before the Court correspondence from the UASU National Office confirming that the strike dispute remained active and that no declaration of illegality had been made. In support of this position, the Claimant relied on the decision in **Maseno University v Universities Academic Staff Union (2015) KECA 235 (KLR)** 5. The Claimant submitted that as at 6th October 2025, no court order had suspended the strike or declared it unlawful. The Claimant therefore submitted his actions were undertaken in furtherance of the strike, and that as such, it could not lawfully form the basis of disciplinary action where the impugned process was substantially connected to his participation in the industrial action rather than any independently established misconduct. 6. It was therefore submitted that the Claimant's actions, being in furtherance of an ongoing strike, were lawful and insulated from disciplinary sanction. 7. The Claimant further submitted that the instrument that formally brought the strike to an end was the Return-to-Work Formula executed on 5th November 2025. 8. On the second issue, the Claimant submitted that the Respondent had improperly attempted to characterize the Claimant's conduct as personal misconduct divorced from union activity which position according to the Claimant, is inconsistent with Article 41(2)(c) of the Constitution, which guarantees every worker the right to participate in the activities and programs of a trade union 9. According to the Claimant, the mobilization of members, enforcement of a strike decision and reporting on compliance with union resolutions are core trade union functions protected by the Constitution. On this basis, the Claimant submitted that the constitutional protections cannot be undermined merely because an employer elects to label such activities as misconduct. 10. The Claimant further submitted that the Respondent's own evidence demonstrated that the impugned acts were undertaken collectively by four UASU officials. However, only the Claimant was subjected to disciplinary action and eventual termination. The Claimant averred that the witness statements referred to "four UASU officials" and that the screenshots relied upon by the Respondent bore the caption "UASU MU Chapter." 11. It was further submitted that the Claimant merely posted the disputed information within a restricted UASU forum comprising union members. The Claimant submitted that such conduct constituted legitimate trade union activity and fell within the exceptions recognized under data protection law. In particular, it was submitted that no breach of personal data occurred as the individuals referred to were members of the same group and were already known to one another. 12. The Claimant therefore asserted that the selective punishment against him violated Article 27 of the Constitution and amounted to discriminatory and unequal treatment. The Court of Appeal decision in ***Thomas De La Rue (K) Ltd v David Opondo Omutelema [2013] eKLR*** was cited in support of this position. The Claimant also cited ***Kenya County Government Workers Union v Kericho Water and Sanitation Company Limited, Cause E012 of 2025 [2025] KEELRC 1863 (KLR)*** and submitted that the Claimant was acting not as a lecturer performing personal duties but as a union official implementing collective union resolutions. 13. The Claimant also submitted that the Respondent does not dispute the existence of the Return-to-Work Formula executed on 5th November 2025 between UASU and the Inter-Public Universities Councils Consultative Forum (IPUCCF), nor does it dispute that the Formula was adopted as an order of the Court on 7th November 2025. 14. It is the Claimant’s submission that the Respondent was bound by the Return-to-Work Formula and had expressly undertaken not to discipline or terminate employees on account of their participation in the strike. Consequently, the Claimant maintained that the termination of his employment on 25th November 2025 was founded upon an invalid and unlawful reason. Reliance was placed on ***Kenya Plantation & Agricultural Workers Union v Maji Mazuri Flowers Ltd [2012] KEELRC 218 (KLR)*, *Kenya Plantation & Agricultural Workers Union v Unilever Tea (K) Ltd [2016] KEELRC 133 (KLR)*** and ***Teachers Service Commission v KNUT & 2 Others [2015] eKLR*.** 15. The Claimant maintained that the Respondent's decision to continue with disciplinary proceedings after the adoption of the Return-to-Work Formula was unlawful, null and void and amounted to a deliberate disregard of a binding court order. 16. Lastly, on the issue whether the Claimant is entitled to the reliefs sought, the Claimant submitted that he was dismissed after the Return-to-Work Formula had been executed and adopted by the Court. The Claimant thus urged the court to grant him the reliefs he sought in his Memorandum of claim. The court was also urged to condemn the Respondent to pay the costs of the claim on the basis that it unlawfully punished a trade union official for discharging protected union duties during an industrial action, contrary to statute, collective labour agreements and a binding court order. ***The Respondent’s submissions*** 1. On its part, the Respondent in its submissions dated 16th February 2026 framed the issues for determination to be; 2. Whether the Return-To-Work-Formula (RTWF) supersedes the statutory regulations 3. Whether the Respondent can dismiss or take disciplinary action against the Claimant's misconduct including harassment, intimidation and circulation of personal data under the Labour Relations Act 4. Whether the Claimant misconducts amounts to an offence sanitized by the RTWF 5. Whether the Claimant was lawfully terminated 6. Whether the Claimant is entitled to the prayers sought 7. On the first issue, the Respondent submitted that a Return-to-Work Formula is a negotiated settlement between an employer and a trade union following industrial action and constitutes a collective agreement within the meaning of the Labour Relations Act. While binding upon the parties, the Respondent asserted that a Return-to-Work-Formula remains subordinate to statutory provisions and cannot override the Employment Act, the Labour Relations Act, the Employment and Labour Relations Court Act or any applicable subsidiary legislation and public service regulations. 8. On whether the Respondent was entitled to discipline or dismiss the Claimant despite the existence of the Return-to-Work-Formula, the Respondent relying on section 79 of the Labour Relations Act submitted that the statutory protection accorded to employees participating in a protected strike extends only to lawful conduct undertaken in contemplation or furtherance of such strike. 9. The Respondent submitted that while section 79(3) prohibits an employer from dismissing or disciplining an employee for participating in a protected strike or engaging in lawful conduct connected thereto, section 79(5) expressly excludes conduct that constitutes an offence from such protection. 10. According to the Respondent, the Claimant was subjected to disciplinary proceedings on account of acts of intimidation, harassment, and circulation of personal data, which amounted to offences under Kenyan law and were therefore excluded from the statutory protections afforded by section 79 of the Labour Relations Act. 11. The Respondent submitted that the conduct attributed to the Claimant constituted intimidation within the meaning of section 238(2) of the Penal Code and was therefore capable of attracting criminal sanction. In support of this position, the Respondent relied on the decision in ***South African Commercial Catering and Allied Workers Union v Massmart Holdings Ltd & Others JA119/2022*** and ***Lomati Mill Barberton v Paper Printing Wood & Allied Workers Union & Others (1997).*** 12. On the third issue whether the Claimant's conduct could be sanitized by the Return-to-Work-Formula, the Respondent submitted that the Return-to-Work-Formula was never intended to operate as a blanket amnesty for all misconduct committed during a strike. It was argued that conduct amounting to an offence falls outside the scope of protection contemplated under section 79(5) of the Labour Relations Act and cannot be legitimized merely because it occurred during industrial action. 13. The Respondent therefore maintained that the Return-to-Work-Formula, being subordinate to statute, could not override the express provisions of the Labour Relations Act and to allow the Claim herein would lead to absurd results by shielding employees from accountability for unlawful conduct committed during a strike. 14. On the issue whether the Claimant was lawfully terminated, the Respondent submitted that it established both substantive and procedural fairness as required under sections 41, 43 and 45 of the Employment Act in terminating the Claimant’s employment. 15. The Respondent contended that the reasons for the termination were clearly communicated to the Claimant and related to allegations of intimidation, harassment and circulation of personal information, which the Respondent considered to constitute gross misconduct. 16. With regard to procedural fairness, the Respondent submitted that the Claimant was afforded ample opportunity to be heard but he declined to participate in the proceedings and subsequently walked out of the meeting. 17. The Respondent therefore argued that it fully complied with the requirements of section 41 of the Employment Act and that any failure by the Claimant to take advantage of the opportunity to be heard could not be attributed to the Respondent. The case of ***Mumo Nzuki v South Eastern Kenya University & 20 Others*, ELRC Cause No. E032 of 2024, *Mathew Lucy Cherusa v Poverelle Sisters of Bergamo t/a Blessed Louis Palazzolo Health Centre* [2015] eKLR** and ***Energy Regulatory Commission v John Sigura Otido [2021] KECA 1060 (KLR),*** were cited in support of this position. 18. In addition, the submitted that if dissatisfied with the outcome of the disciplinary process, the Claimant ought to have invoked the appellate mechanisms provided under the Moi University Human Resource Policy Manual instead of prematurely approaching the Court. 19. Consequently, the Respondent urged the Court to dismiss the Claim in its entirety with costs. **Determination** 1. From the pleadings on record, the submissions of the rival parties as well as the authorities relied upon by the parties, the issues that fall forthis Court’s determination are; - 2. Whether the Return-to-Work Formula and Court Order of 7th November 2025 barred the Respondent from continuing with disciplinary proceedings against the Claimant. 3. Whether the termination of the Claimant’s employment was unfair and unlawful? 4. Whether the Claimant is entitled to the reliefs sought. *Whether the Return-to-Work Formula and Court Order of 7th November 2025 barred the Respondent from continuing with disciplinary proceedings against the Claimant* 1. It is common ground that on 5th November 2025, the Inter-Public Universities Councils Consultative Forum (IPUCCF) and the Universities Academic Staff Union (UASU) executed a Return-to-Work Formula (RTWF) to bring to an end the industrial action that had commenced on 10th September 2025. It is also undisputed that the Return-to-Work Formula was subsequently adopted as an order of the Court on 7th November 2025 in *Nairobi ELRC Cause No. E214 of 2025.* 2. The Claimant contends that by virtue of the Return-to-Work Formula and the ensuing Court Order, the Respondent was precluded from pursuing any disciplinary proceedings arising from actions undertaken during the strike period. According to the Claimant, the disciplinary proceedings culminating in his dismissal were founded on conduct undertaken in furtherance of the strike and therefore fell within the protection afforded by the Return-to-Work Formula 3. The Respondent, on the other hand, maintains that the disciplinary proceedings were not predicated upon the Claimant's participation in the strike but upon allegations of harassment, intimidation, disruption of examinations and circulation of personal information. It is the Respondent's position that such conduct constituted offences and therefore fell outside the protection contemplated under both the Return-to-Work Formula and section 79 of the Labour Relations Act. 4. A Return-to-Work Formula is a negotiated industrial relations instrument intended to facilitate the resumption of normal working relations following industrial action. Once adopted as an order of the Court, its terms become binding upon the parties in the same manner as any other court order. 5. As was stated in cases cited by the parties that a Return-to-Work Formula ordinarily protects employees from victimization, disciplinary action, or retaliation on account of their participation in a strike. 6. However, the protection afforded by a Return-to-Work Formula is not without limitation. The Court must interrogate the nature of the conduct that formed the basis of the disciplinary proceedings and determine whether it was merely participation in, or conduct in furtherance of, the strike, or whether it constituted independent misconduct falling outside the ambit of the industrial dispute. 7. A careful review of the Show Cause Letter dated 9th October 2025 shows that the allegations against the Claimant arose directly from events that occurred during the subsistence of the strike and in the context of his efforts to mobilize members and enforce compliance with the Union's strike directive. The allegations against the Claimant in the show cause letter related to interference with examinations, engagement with staff who had reported to work and communications made within the union structures were all inextricably linked to the ongoing industrial action. 8. The Claimant further filed witness affidavits by Dr. Paul Busolo Wegesa, the elected Secretary of the Universities Academic Staff Union (UASU), who deposed that during the strike he accompanied the Claimant together with other union officials in carrying out official union mobilization duties. That on the said date the Respondent had allowed ongoing examinations to proceed in violation of the strike and contrary to the union directives that all academic staff cease teaching and examination duties. 9. Dr. Paul Busolo Wegesa further deposed that he personally witnessed and participated in engaging members and informing them that examinations could not lawfully continue during the strike and that such activities constituted a breach of the union’s collective position. 10. He further deposed that he was aware that the Claimant made communication on the official UASU Moi University Chapter WhatsApp group reporting on compliance and non-compliance, within his mandate as Organizing Seretary, whose mandate includes internal reporting, mobilization and enforcement of union resolutions. That at all times the Claimant acted strictly within his mandate as Organizing Secretary under Article 20 of the UASU Constitution. 11. Similar averments are made in the witness affidavit of Dr. Richard Bosire Ochanda Okero, the Chairperson of the Universities Academic Staff Union (UASU), Moi University Chapter. 12. The Respondent did not place before the Court any evidence demonstrating that the Claimant had engaged in any activities. It did not even specify the provisions of the law that create the offences that the Claimant is alleged to have committed. The Respondent's characterization of the conduct as amounting to offences cannot, without more, remove the conduct from the protection ordinarily afforded to employees participating in industrial action. 13. In the case of [***KENYA PLANTATION & AGRICULTURAL WORKERS UNION V MAJI MAZURI FLOWERS LTD [2012] KEELRC 218 (KLR)***](https://new.kenyalaw.org/akn/ke/judgment/keelrc/2012/218/eng%402012-11-21)***,*** the court held:- *“ From the facts presented before the Court, the grievants were among a group of about 50 employees who were suspected of having participated in an unprotected strike. The strike took place at the behest of the Claimant Union to whom the grievants were members. The strike lasted for a very short time because the matter was resolved through conciliation presided over by the Ministry of Labour.* *One of the primary objectives of the Labour Relations Act, 2007 as derived from the preamble is “promotion of orderly and expeditious dispute settlement”.* *Section 68(1), titled ‘Dispute resolved after conciliation’ provides:-* *“If a trade dispute is settled in a conciliation the terms of the agreement shall be:-* *(a) recorded in writing, and* *(b) signed by the parties and conciliator.”* *The Return to Work Formula dated 5th August, 2011 satisfied all the requirements of Section 68 of the Industrial Relations Act, 2007….* *….. It is the court’s considered view that the Respondent was bound by the terms of the Return to Work Formula entered into on 5th August, 2011.”* 1. The Return-to-Work Formula executed on 5th November 2025 was subsequently adopted as an Order of the Court on 7th November 2025. This Court finds that the Respondent was bound by its terms. The Respondent was therefore under an obligation to discontinue any disciplinary proceedings founded on conduct arising from conduct of the members of the union during and or in furtherance of the industrial action that culminated in the execution of the Return-to-Work Formula. 2. I therefore find that the disciplinary proceedings instituted against the Claimant were substantially connected to his activities as a UASU official during the strike period. *Whether the termination of the Claimant’s employment was unfair and unlawful?* 1. Sections 43 and 45 of the Employment Act place upon an employer the burden of proving the reasons for termination and demonstrating that such reasons were valid and fair. In addition, the employer must establish that the termination was effected in accordance with fair procedure. 2. Having found that the disciplinary proceedings upon which the dismissal was founded should have been discontinued after the execution and adoption of the Return-to-Work Formula, it follows that the reason relied upon by the Respondent to terminate the Claimant's employment was tainted by the Respondent's disregard of a binding industrial settlement and court order. 3. Additionally, the Claimant was an elected UASU official whose duties included mobilizing members and coordinating union activities during the strike. The evidence placed before the Court demonstrate that the actions complained of were undertaken within the broader context of the industrial action and the Claimant's role as a union official. 4. While the Respondent contended that the Claimant's conduct constituted harassment, intimidation and circulation of personal information, the evidence before the Court does not establish that those acts were independent of the strike. 5. I therefore find that the Respondent failed to establish a valid and fair reason for terminating the Claimant's employment within the meaning of sections 43 and 45 of the Employment Act. 6. In addition, although the Respondent afforded the Claimant opportunities to attend disciplinary proceedings, procedural compliance cannot sanitize a process that was itself commenced and continued in contravention of a binding Return-to-Work Formula and Court Order. 7. The Court further notes that the Respondent continued with the conduct of the disciplinary proceedings even after the Claimant attended the proceedings with union officials and informed it that the disciplinary proceedings arose from acts that were covered by the Return-to-Work Formula. This does not amount to refusal to attend the disciplinary hearing as averred by the Respondent. 8. Consequently, the Court finds that the Claimant's summary dismissal was both substantively and procedurally unfair and therefore unlawful. *Whether the Claimant is entitled to the Reliefs Sought* 1. Having found that the disciplinary proceedings instituted against the Claimant were contrary to the Return-to-Work Formula and the Court Order of 7th November 2025, and having further found that the termination of the Claimant’s employment was unfair and unlawful within the meaning of sections 43 and 45 of the Employment Act, the Court now turns to consider the appropriate reliefs. 2. The primary remedy sought by the Claimant is reinstatement to his former position without loss of salary, benefits, seniority, or continuity of service. Under section 49(3)(a) of the Employment Act and section 12(3)(vii) of the Employment and Labour Relations Court Act, reinstatement is available where the circumstances of the case justify such relief. 3. In determining whether reinstatement is appropriate, the Court has to consider the factors set out under section 49(4) of the Employment Act, including the circumstances leading to the termination, the practicability of reinstatement, the Claimant's length of service and the conduct of the parties. 4. As already found, the Claimant's dismissal arose from activities undertaken in his capacity as an elected trade union official during an ongoing industrial action. The Court has found that the Respondent proceeded with disciplinary proceedings notwithstanding the existence of a binding Return-to-Work Formula and a subsisting Court Order. The termination was therefore not only unfair but also inconsistent with the industrial relations framework agreed upon by the parties. 5. Industrial action is a right protected under Article 41 of the Constitution and section 76 of the Labour Relations Act. The Respondent has not stated that the strike was declared unprotected. The Respondent has further not denied that the termination was after the Return-to-Work Formula which was binding on it was executed. It was also after the union officials accompanied the Claimant to the disciplinary hearing and besought the Respondent to discontinue the proceedings as agreed in the Return-to-Work Formula. It is evident that the action was deliberate, and in complete derogation of the Return-to-Work Formula. 6. In so far as the Return-to-Work Formula had been adopted as a court order, the action of the Respondents was contemptuous in so far as it constituted a deliberate defiance of the court order. It was further a deliberate violation of the Claimant’s right to participate in the activities and programs of a trade union and to go on strike as enshrined in Article 41(2)(c) and (d) of the Constitution. 7. From the record, the Claimant was terminated from employment on 25th November 2025 and he moved to Court without undue delay. There is no evidence that the employment relationship has irretrievably broken down or that reinstatement would be impracticable. 8. In the circumstances, the Court is satisfied that reinstatement is the most appropriate remedy and will adequately vindicate the Claimant's rights while restoring the position he would have occupied had the unlawful dismissal not occurred. 9. Consequently, the Court hereby orders the reinstatement of the Claimant to his position with the Respondent without loss of salary, benefits, seniority, pension rights, or continuity of service. 10. In view of the order for reinstatement, the alternative prayer for compensation for unfair termination under section 49(1)(c) of the Employment Act is declined. 11. On costs, the general principle is that costs follow the event. The Claimant has succeeded in his claim and there is no reason to depart from that principle. Accordingly, the Claimant is awarded the costs of this suit together with interest thereon at Court rates from the date of taxation until payment in full. 12. In the upshot judgment is hereby entered for the Claimant in the following terms: - 13. A declaration is hereby issued that the Claimant's summary dismissal on 25th November 2025 was unfair, unlawful, and in violation of the Return-to-Work Formula adopted as an Order of the Court on 7th November 2025. 14. The letter of summary dismissal dated 25th November 2025 is hereby quashed and set aside. 15. The Claimant is hereby reinstated to his employment with the Respondent without loss of salary, benefits, seniority, pension rights, or continuity of service. 16. The Respondent shall bear the costs of this suit. 17. Orders accordingly. **DATED, SIGNED AND DELIVERED VIRTUALLY ON** **THIS 25TH DAY OF JUNE, 2026** **M. ONYANGO** **JUDGE**