https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2318

Nyamolo v One Acre Fund (Cause E021 of 2025) [2026] KEELRC 2318 (KLR) (30 July 2026) (Judgment) Neutral citation: [2026] KEELRC 2318 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Kakamega Cause E021 of 2025 DN Nderitu, J July 30, 2026 Between Nancy Atieno Nyamolo Claimant and One Acre Fund Respondent Judgment I. Introduction 1.The Claimant commenced this cause through Elvis Nanda, Weke & Co. Advocates by way of a memorandum of claim dated 21st May 2025, seeking for various reliefs –a)A declaration be and is hereby made that the termination of the claimant’s employment was wrongful. Unfair, unconditional and unlawful.b)An order be and is hereby issued for the immediate reinstatement of the claimant to her employment on the same terms as she was as of 26th October, 2023 without loss of any privilege and/or benefit that she was entitled to at the time of her unlawful termination.c)An order be and is hereby made that the claimant be paid all her unpaid salaries, allowances and benefits and statutory entitlements or terminal benefits under the law.d)An order be and is hereby issued for compensation of the claimant for wrongful, unfair and unlawful termination calculated as follows: -i.Payment of twelve (12) months’ gross salary being Kshs.56,619 x 12 = Kshs.679.428ii.Payment of a one (1) month’s salary in lieu of notice being Kshs.56,619 x 1 = Kshs.56,619Total ………….…..Kshs.736,047/=iii.Payment of unpaid leave days in the sums of Kshs.e)General damages for breach of the claimant’s constitutional right to fair labour practices.f)Costs of this suit.g)Interests on all the payment above at court rates from the date of this suit until payment in full.h)Any other or further relief that the Court may deem fit to grant in the interest of justice. 2.The memorandum of claim was accompanied with a verifying affidavit, a list of documents and copies of the listed documents, and a witness statement by the Claimant. 3.Upon service, the Respondent through J. G. Menezes & Co. Advocates entered appearance and filed a statement of response to the claim dated 7th October 2025. The Respondent also filed a list of documents and copies of the listed documents, alongside a list of witnesses and, the written witness statement of Titus Masinde, the Human Resources Coordinator of the Respondent. II. The Claimant’s Case 4.The Claimant’s case is expressed in the memorandum of claim, the oral and documentary evidence that she adduced as CW1, and the written submissions by her Counsel. 5.It is pleaded that the Claimant was at all material times engaged on a fixed-term contract as a Senior Fleet & Quality Control Supervisor in the Department of Logistics, commencing on 9th December 2019. It is pleaded that based on her exemplary service the Claimant was promoted to the position of a Fleet Supervisor, a position she held as at the time of her dismissal. 6.It is pleaded that on or about 26th October 2023, the Respondent, unfairly, unlawfully, and without any just or reasonable cause, summarily dismissed the Claimant. It is stated that the Claimant was so dismissed on alleged misconduct based on charges of fraud and theft. 7.It is pleaded that as at the time of the dismissal the Claimant was earning a consolidated monthly salary of Kshs56,619/=. 8.It is pleaded that the dismissal was un-procedural, wrongful, unfair, and unlawful as the Claimant was denied a fair hearing both in substance and procedure against the provisions of Articles 41 & 47 of the Constitution and Sections 35, 43, 45, & 46 of the Employment Act. 9.In her testimony in court on 3rd February 2026, the Claimant adopted her filed written statement and stated that she served the Respondent for a period of three years and 11 months. She also produced her filed documents as exhibits 1 to 8. 10.In cross-examination, the Claimant admitted that she was served with a show-cause letter dated 13th October 2023 and that she responded to the same vide her letter dated 19th October 2023. She admitted attending a virtual disciplinary hearing thereafter. She stated that she was summarily dismissed vide a letter dated 26th October 2023. She further stated that her appeal upon the dismissal was dismissed. She conceded that she was issued with a certificate of service. 11.In re-examination, the Claimant clarified that the disciplinary hearing was virtual and maintained that the hearing was not fair because she was not supplied with the evidence against her in advance and, that the Respondent had no anti-fraud policy in place that she was accused of breaching and or violating. III. The Respondents’ Case 12.The Respondent’s case is based on the statement of response to the claim, the documentary and oral evidence adduced through Titus Masinde (RW1), and the written submissions by Counsel. 13.In the response to the claim, the Respondent admits the particulars of the employment relationship as pleaded by the Claimant but denies that the Claimant was on permanent employment. While it is admitted that the Claimant was engaged as a senior fleet and quality control supervisor, it is denied that the Claimant was at any point elevated to a fleet supervisor. 14.It is pleaded that as is stated in the show-cause letter, the Claimant was found to have violated the Respondent’s Tupande Anti-Fraud and Theft Policy as established in an investigation report dated 5th October 2023. It is pleaded that it was lawful and justified for the Respondent to summarily dismiss the Claimant on the basis of her allegedly established fraudulent activities. 15.It is denied that the Claimant’s last monthly salary was Kshs56,619/=. 16.It was pleaded that the Respondent afforded and accorded to the Claimant both substantive and procedural fairness and gave her a fair hearing in accordance with the law. It is pleaded that the Respondent complied with Sections 43, 44, & 45 of the Employment Act culminating in a fair and justified dismissal of the Claimant. It is denied that the Respondent violated the Claimant’s constitutional rights under Articles 41 or 47 of the Constitution or any other provisions. 17.It was pleaded that the Claimant was supplied with all the details of the charges and allegations against her as per the show-cause letter and, in any event, no further details or particulars were sought by the Claimant. 18.On without prejudice basis to the foregoing, the Respondent pleaded that the Claimant was initially engaged vide a contract dated 2nd December 2019 as a senior fleet and quality control supervisor at a consolidated gross salary of Kshs41,581/=. It was pleaded that the contract was subsequently extended from time to time, for different and varied periods, and the last such contract was to run from 1st May to 31st December 2023. 19.However, it was pleaded that in an investigation report dated 5th October 2023 the Claimant was allegedly found to have committed fraudulent gross misconduct leading to a disciplinary process that culminated in the summary dismissal of the Claimant vide a letter dated 26th October 2023. 20.It was further pleaded that the Claimant appealed the dismissal but the dismissal was upheld and the Claimant issued with a certificate of service. 21.It was further pleaded that the dismissal was fair and just and in accordance with the law. 22.In the circumstances, the Respondent denied that the Claimant is entitled to any of the reliefs sought. It was pleaded that the Claimant took all her annual leaves and that she was paid a sum of Kshs17,028.85 for the 2023 leave that she had not taken as at the time of her dismissal. 23.In his testimony in court on 3rd February, 2026, RW1, a human resource coordinator, adopted his filed witness statement dated 5th November 2025. Further, he relied on the documents filed and produced the same as exhibits 1 to 12. He emphasized that the Claimant was accorded a fair hearing culminating in her summary dismissal. 24.In cross-examination, RW1 stated that the disciplinary action against the Claimant was initiated based on the investigation report alluded to above. He stated that the action was based on fraudulent activities by the Claimant that breached the Tupande Anti-Fraud and Theft Policy. He stated that this policy was in force since 2019, but admitted that a copy of the same was not filed in court. 25.RW1 further stated that as at the time of her dismissal, the Claimant was stationed at Chavakali, Vihiga County. He stated that he is the one who signed the show-cause letter to the Claimant. He insisted that all the details and particulars of the allegations and charges against the Claimant were provided for in the show-cause letter. He stated that the disciplinary hearing was conducted on 23rd October 2023 and, thereafter, a decision was made to have the Claimant dismissed. 26.RW1 admitted to not having employment records of the Claimant and reluctantly conceded that the monthly salary of Kshs56,619/= claimed by the Claimant was correct. He stated that the Claimant had pending leave days as at the time of dismissal, which were paid for, and that no other terminal dues were paid to the Claimant as she was entitled to none. 27.He stated that he did not know who EL, the accomplice of the Claimant, was and that he did not know the position held by that employee or whether he/she was under supervision of the Claimant. He admitted that the alleged text messages between the Claimant and EL that essentially prompted the investigation were not availed in court and, that the same were not contained in the investigation report. VI. Submissions by Counsel 28.Mr. Nanda for the Claimant filed written submissions dated13th April 2026. Counsel identified the following issues for determination by the court – Whether the termination of the claimant was fair, lawful and procedural; and, Whether the claimant is entitled to the reliefs sought. 29.On the first issue, it was submitted that the Claimant was not subjected to a fair hearing based on Rules of natural justice. It was further submitted that the Respondent violated Sections 41, 42, 43, 44, 45, & 47 of the Employment Act. In support of that submission, Counsel cited the decision of the Court of Appeal in Pius Machafu Isindu V Lavington Security Guards Limited (2017) eKLR to the effect that it is upon an employer to justify grounds of dismissal and prove that procedural fairness was administered based on the law. 30.It was submitted that the Claimant was not served with the evidence against her prior to the date of the disciplinary hearing and that the Respondent ambushed Claimant without offering her a chance to prepare her defence. It was submitted that the alleged text message exchanged between the Claimant and another employee, EL, was not supplied to the Claimant and the entire extract was not contextualised as to lay the basis of the nexus between the message and the alleged fraud and or theft. 31.It was further submitted that the said communication between the Claimant and EL was not availed in court for scrutiny by the Court. 32.It was submitted that the investigation report dated 5th October 2023 contained a predetermined conclusion that the Claimant be terminated and hence the shadowy disciplinary hearing was a cosmetic attempt to rubberstamp a decision that had already been arrived at to dismiss the Claimant. 33.It was submitted that the Respondent failed to justify or prove the reason for the dismissal as demanded under Section 43(2) of the Employment Act. It was submitted that no fraudulent intent was proved based on the communication between the Claimant and the employee identified as EL and, that the purported Tupande Anti-Fraud & Theft Policy was not availed in court. 34.The Claimant’s case is that there was no such policy as at the time of her dismissal and or the material times to the cause. It was further submitted that if such policy came into force after the fact, the same could not apply reactively to the Claimant. 35.It was submitted that the Respondent violated the rights of the Claimant under Articles 47 & 50 of the Constitution and Section 4(3) of the Fair Administrative Actions Act. It is emphasized that the Claimant was not served with the evidence against her in advance and even the investigation report relied upon by the Respondent was not duly signed by the team that allegedly investigated the purported fraud and or theft. 36.On lack of both substantive and procedural fairness, Counsel for the Claimant cited Walter Ogal Anuro V Teachers Service Commission (2013) eKLR and the decision of the Court of Appeal in Kenfreight (EA) Limited V Benson K. Nguti (2016) eKLR. It was submitted that no legally valid or justifiable reason was demonstrated and that the procedure applied was unfair to the Claimant. It was submitted that the Respondent approached the disciplinary hearing with a predetermined mind aimed at dismissing the Claimant. 37.It was submitted that no audit report was presented to court to prove that indeed some products or properties entrusted with the Claimant had been stolen or compromised. It was emphasized that the Claimant’s performance and execution of duties was not questioned. 38.For all the foregoing, Counsel for the Claimant concluded that the dismissal was un-procedural, wrongful, unfair, and unlawful. 39.On the reliefs, Counsel submitted that the last monthly salary of the Claimant was Kshs56,619.20 and that since this was not contested the same should form the basis for any awards/reliefs made by the Court. 40.On compensation for wrongful, unfair, and unlawful dismissal, Counsel submitted that the Claimant should be awarded an amount equivalent to 12 months of her gross consolidated salary under Section 49 of the Employment Act. 41.Further, the court is urged to allow the plea for reinstatement as the claim decision of the Court shall be rendered within the three-year period within which that remedy may be ordered. 42.Citing Gumbe V Vice-Chancellor, Technical University of Kenya & Another (2026) KEELRC 18 (KLR), Counsel submitted that the Claimant is entitled to compensation for the violation and breach of her constitutional and statutory rights as summed up in the foregoing paragraphs. It is submitted that the Respondent violated those rights under Articles 41, 47, & 50 of the Constitution and the various provisions of the Employment Act cited. 43.Mr. Fundi for the Respondent submitted that the Claimant admitted to receiving a show-cause letter dated 13th October 2026, that she responded to the same on 19th October 2026, that she was invited to a disciplinary hearing via an email dated 12th October 2023 informing her of the time, date, venue, and manner of the hearing, that she attended the disciplinary hearing and, that she was informed of her summary dismissal vide a letter dated 26th October 2026. It was further submitted that the Claimant appealed the dismissal but the same was upheld and the appeal dismissed. 44.It is further submitted that as at the time of her dismissal, the Claimant was on a seven-month fixed-term contract running from 1st May to 31st December, 2023. It was further submitted that after the latter date the contract was to lapse by effluxion of time. 45.It was submitted that the Claimant was procedurally found to have engaged in fraud as evidenced in her communication with EL, whereby, the Claimant was alleged to have warned EL not to remove fertilizer from the Chavakali Warehouse as the fraud in Kisii had ben discovered. It was submitted that the Claimant was either involved in fraud and or failed to report the same knowing that EL was involved. It was submitted that the Respondent investigated the matter culminating in the report dated 5th August 2023 wherein the Claimant was implicated. 46.It is submitted that upon the investigation report being prepared, the Claimant was taken through the disciplinary process and hearing as stated above culminating in her summary dismissal and the appeal arising therefrom was dismissed. 47.Counsel for the Respondent isolated the issues for determination by the Court as – Whether the termination of the Claimant’s employment was unfair? And; Appropriate remedies. 48.On the first issue, it was submitted that the Respondent complied with both the substantive and procedural fairness (fair hearing) culminating in the summary dismissal of the Claimant. In buttressing the foregoing, Counsel cited Anthony Mkalla Chitavi V Malindi Water & Sewerage Company Limited. 49.It is further submitted that in taking the disciplinary action, the Respondent genuinely and honestly believed that the Claimant had engaged in fraudulent activities and as such the Respondent acted within the provisions of Section 43(2) of the Employment Act. In support to the foregoing, Counsel cited the decision in British Leyland Limited V Swift (1981) IRLR 91. 50.It was submitted that the Respondent complied with the law throughout the disciplinary process, to wit, Sections 35, 43, & 45(2) of the Employment Act. 51.On the remedies, it is submitted that the Claimant was fairly and lawfully dismissed and as such no compensation was due or payable to her. 52.On notice-pay, it is submitted that Claimant was summarily dismissed and as such no notice was applicable to her and no payment may be ordered for the same. 53.On leave-pay, it is submitted that the claim on the same for the period from 2019 to 2023 is barred under Section 90 (now Section 89) of the Employment Act. It was further submitted that the Claimant was paid Kshs17,028.85 on account of leave not taken. 54.It was further submitted that the summary dismissal was fair and lawful and hence the court should not declare otherwise. 55.It was further submitted that the Claimant did not prove violation or breach of her constitutional rights and as such the compensation sought in that regard is misplaced and not awardable. 56.The Court is urged to dismiss the claim with costs to the Respondent. VII. Issues for Determination 57.The court has carefully and dutifully gone through the memorandum of claim, the attached documentary evidence, the oral evidence by the Claimant (CW1), and the submissions by her counsel. Likewise, the court has studied the response to the claim, the oral and documentary evidence adduced by the Respondent through RW1, as well as the written submissions filed by the Counsel therefor. 58.There are several factual issues that are either not contested or stand unchallenged based on the pleadings and the oral and documentary evidence adduced from both sides. Firstly, it is the evidence on record that the Claimant was engaged by the Respondent on a variety of fixed-term contracts for the period between 2nd December 2019 and October 2023. Secondly, it is also not deniable that as at the time of her summary dismissal on 26th October 2023, the Claimant was on a seven-month contract running from 1st May to 31st December, 2023. Thirdly, it is not contested that the last consolidated salary for the Claimant was Kshs56,619/=. 59.There are also other issues that are not in contest. The Claimant was served with a show-cause letter, she was invited for a disciplinary hearing that was conducted virtually, she indeed took part in those proceedings and, thereafter, the Claimant was summarily dismissed. She appealed the dismissal but the appeal was declined. 60.It is also not in dispute that the investigation against the Claimant was prompted by a text message exchanged between the Claimant and a co-worker identified as EL, both based at the Chavakali Depot of the Respondent. The Respondent read fraudulent intention in the said message and initiated the investigation and the disciplinary process detailed in the foregoing paragraphs, culminating in the summary dismissal of the Claimant. 61.In my considered view, based on all the foregoing, the following issues commend themselves to the court for determination –a)Was the summary dismissal of the Claimant wrongful, unfair, and unlawful?b)If (a) above is in the affirmative, is the Claimant entitled to the reliefs sought?c)Who should bear the costs of the cause? IV. Merits of the Cause 62.It is the Claimant’s case that her summary dismissal was wrongful, unfair, and unlawful, both in substance and procedure. It is her case that she was denied a fair hearing as demanded by the various constitutional and statutory provisions cited elsewhere in this judgment. 63.The law and the jurisprudence on what constitutes or fails to satisfy a fair hearing, based on what are broadly referred to as the Rules of natural justice, is now somehow settled. This Court (ELRC) has also pronounced itself on this matter in a multitude of decisions – see Walter Ogal Anuro V Teachers Service Commission (2013) eKLR, David Gichana Omuya V Mombasa Maize Millers Limited (2014) eKLR and, Kenfreight (EA) Limited V Benson Nguti (2016) eKLR. 64.In terms of the substance of the summary dismissal, the reason or decision for taking the disciplinary action against the Claimant was based on an investigation report dated 5th October 2023. In a relevant part of the report, it stated that – The report established that Nancy Nyamollo was aware of the fraudulent activities at Chavakali warehouse as evidenced here – In a conversation between Nancy and Edel, Nancy warned Edel not to remove the fertilizer from the warehouse as Kisii warehouse has been discovered. The report established that Nancy was aware of Edel’s involvement in the fraudulent activities at Chavakali warehouse and failed to escalate it to the relevant channels for investigation. 65.The report recommended that the Claimant, alongside other employees who were subject of investigation, be issued with a letter of termination. The copy of the investigation report availed in court is neither signed nor dated by the named panellists. 66.Subsequently, the Claimant was issued with a show-cause letter dated 13th October 2023. In a relevant part, the charges/allegations against the Claimant were framed as follows – Tupande Anti Fraud and Theft Policy Breach: The investigation report dated October 5, 2023 established that you were aware of the fraudulent activities at Chavakali warehouse as evidenced in the conversation between yourself and EL, you warned EL not to remove the fertilizers from the warehouse as Kisii warehouse fraud had been discovered. The report also established that you were aware of EL’s involvement in the fraudulent activities at the Chavakali warehouse and failed to escalate it to the relevant channels for investigation. 67.The letter directed the Claimant to show-cause in seven days and further informed the Claimant to attend a virtual disciplinary hearing slated for 20th October 2023. She was informed of her right to call co-worker witness(es) of her choice during the hearing. 68.The Claimant responded to the show-cause letter vide her detailed letter of 19th October 2023 and denied each and every allegation contained in the show-cause letter. She also requested that she be supplied with the investigation report for her reading in preparation of an appropriate defence. She further stated in her said response that the isolated text message between her and EL did not make sense as the preceding and subsequent messages were not supplied as to create a proper and an understandable context. She requested that she supplied with the entire relevant conversation with the EL. She added that EL was neither her supervisee nor was she working in her department. She insisted that if there was ever such a communication between the two, the same was only meant to inform EL not to make any transfer of products to Kisii warehouse as the same was not operational. The intention was to avoid unnecessary costs of transferring and moving the products to Kisii only for the same to be returned. 69.She stated in the said response that in her recollection, the alleged Anti-Fraud and Theft Policy was signed in January 2023, long after the alleged fraud or theft. 70.A copy of the minutes of the disciplinary hearing availed by the Respondent – pg. 27 of the bundle – indicates that the disciplinary hearing took place on 23rd October 2023. The minutes show that the Claimant did not call any witnesses but gave a detailed defence based on her response to the show-cause letter as alluded to above. That Claimant maintained that her communication with EL was a caution to the latter not to remove product or make an inventory to Kisii warehouse because the same was not operational. She denied of any involvement or knowledge of fraudulent activities by EL or indeed any other person. The Claimant admitted that EL was her friend and as such there was nothing unusual in them communicating, including through text messages. 71.The copy of the minutes availed in court by the Respondent is not signed by the panellists. 72.In a letter dated 26th December 2023, the Claimant was summarily dismissed with immediate effect. The letter in part stated that “we have concluded that this is a breach of OAF HR policies and procedure manual specifically in relation to Tupande Anti Fraud and Theft Policy”. In other words, the panellists found the Claimant guilty as charged in the allegations contained in the show-cause letter. 73.It is in the foregoing context that the Court has to determine if the substance of the allegations was proved against the Claimant. In other words, was there good and probable reason or cause for the Respondent to summarily dismiss the Claimant? My answer is an emphatic no for the reasons below. 74.The Court fully appreciates that a disciplinary hearing is not a court trial. The Court does not expect the panellists in a disciplinary hearing to apply the technical rules of procedure and adduction of evidence as trial courts do. However, such hearing should adhere to the basic Rules of natural justice. The standard of proof, as elucidated in British Leyland UK Limited V Swift (supra) is that of a reasonable man. 75.Section 43 of the Employment Act provides as follows –(1)In any claim arising out of the 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. 76.That above law places a burden on an employer to prove the reason for termination or dismissal. In other words, once an employee establishes a termination or dismissal, or the fact thereof is not in dispute as in this cause, the burden of proof shifts to the employer to justify the same. However, it is germane to note that the reason for the termination or dismissal must be based on genuine believe that the employee is guilty of the charges/allegations made and hence guilty of the alleged misconduct. 77.As much as the Respondent may have had a suspicion that the communication between the Claimant and EL was intended to defraud and or was in furtherance of fraudulent activities, the Claimant fully addressed and responded to their concerns in her response to the show-cause letter. She explained that the impugned text message was intended to caution any transfer of products, or inventory as they called it, to the Respondent’s warehouse at Kisii as the same was not operational. In fact, the investigation report confirmed that the warehouse at Kisii had been closed at the time material to the investigations. 78.In my considered view, no matter how strong the suspicion was on the part of the Respondent against the Claimant of her alleged involvement of fraudulent activities or theft, such suspicions were deflated by the detailed response by the Claimant to the show-cause letter. At that point, the Respondent ought to have either reconsidered its position or ordered further investigations into the matter before summoning the Claimant to a disciplinary hearing. 79.The court finds and holds that there were no reasonable or probable grounds upon which the Respondent proceeded against the Claimant as it did. There is no evidence that the Claimant was called for an interview or interrogation by the panel that carried out the investigation. There is also no evidence that an audit was carried out to establish that any products or inventories had been stolen or removed from the Chavakali warehouse un-procedurally. Therefore, the action by the Respondent was not based on an honest and genuine believe that the Claimant had committed any misconduct. The action was cynical, whimsical, unreasonable, unfair, and unjustified. 80.There is no evidence establishing that the communication between the Claimant and EL was intended or was in furtherance of fraud or theft. The Respondent overstretched its imagination and arrived at the wrong decision in taking the disciplinary action. 81.The Respondent failed to prove or justify the reason for the summary dismissal of the Claimant as demanded by the law cited above. 82.On procedural fairness, it is the evidence on record that the Claimant was issued with a show-cause letter to which she responded and thereafter attended a virtual hearing. She was informed of her right to bring along a co-worker as a witness, if she had one. It is notable that the Respondent tried to accord the Claimant a fair hearing. 83.However, the Respondent failed to comply with one very fundamental and basic procedural step. In her response to the show-cause letter, the Claimant requested that she be supplied with the evidence against her and more so the investigation report, so as to prepare for an appropriate defence. The Claimant stated in court that she only gained access of the investigation report when a copy was filed in court by the Respondent. In the era of disclosure in substantive and procedural fairness, due process of essence dictates that the Claimant was entitled to a copy of the report before attending the virtual disciplinary hearing. It is important to note that the Claimant was not interviewed and or interrogated during the investigation and she was thus in complete darkness as to what the evidence against her was all about. It is also important to note that no witnesses were called, more so the person who investigated the alleged fraud, as to be subjected to cross-examination by the Claimant. 84.It is the finding and holding of the Court that, inasmuch as the Respondent attempted to accord due process to the Claimant, the procedure was unfair for non-disclosure of evidence and material facts as requested by the Claimant in her response to the show-cause letter. It is a cardinal rule of fair hearing that the Claimant ought to have been supplied not only with the particulars of the allegations and charges, but also with the supporting evidence. The Respondent failed in that regard. 85.In the circumstances, and in view of all the above, the Court finds and holds that the Claimant was denied both substantive and procedural fairness and hence the summary dismissal was wrongful, unfair, unjustified, and unlawful. V.Reliefs 86.The Court has found and held above that the summary dismissal of the Claimant was wrongful, unfair, unjustified, and unlawful in contravention of Sections 35, 42, & 43 of the Employment Act and a declaration shall hence issue to that effect in line with prayer (a) of the memorandum of claim. 87.Prayer (b) is for reinstatement of the Claimant to the position that she held before the dismissal without loss of salaries, allowances, and other benefits and privileges, as if she never left. Reinstatement, like any other remedy or relief under Section 49 of the Employment Act is discretionary. It is in the nature of an order of specific performance or a mandatory injunction. This is a remedy that the court has to be careful awarding and more so in cases of personal service such as employment. It must also be borne in mind that a court should not make or issue orders in vain or make or issue orders that it may be called upon to supervise implementation thereof as courts may lack in that capacity – see Geilla V Cassman Brown. 88.Furthermore, it is not farfetched to liken an employment relationship to a marriage wherein parties may not be forced to remain together when the relationship is irretrievably broken down for lack of trust or other valid reasons. The Claimant left employment with the Respondent in October 2023 on charges and allegations of fraudulent misconduct. Of course, the court has found and concluded that the said allegations were baseless and dismissed them. As the Claimant stated in her pleadings and oral testimony, the Respondent appears to have had a predetermined intent to summarily dismiss her. To say the least, the trust between the two parties was at that point irretrievably broken down. In any event, the Claimant was on a fixed-term contract that was to end by December 2023. The term within which the Claimant would have served, bar renewal of the contract, expired on that date. It would be absurd for the court to order that the Claimant goes back to serve the two months that remained in her contract after now being out of that job for over two and a half years. 89.For all the above reasons, the request for an order of reinstatement is hereby denied. 90.Prayer (c) is for payment of the salaries, allowances, and benefits due as at the time of her dismissal. The said dues are neither specifically pleaded nor quantified in the pleadings and or in the submissions by her Counsel. The court has gone through the demand notice produced by the Claimant in court addressed by her Counsel to the Respondent and, again, the said dues are neither specified nor quantified. The court has no business imagining or assuming what really the Claimant meant in this prayer. Parties are bound by their pleadings and, the Court can only grant that which is properly pleaded and proved. If it is salary arrears, for what period? If it is about allowances or other benefits, what are they and what are the amounts purportedly due and payable? What are those so-called terminal benefits and what is their value? This prayer is denied. 91.Prayer (d)(i) is for compensation for the wrongful, unfair, and unlawful dismissal equivalent to 12 months gross salary. It is not in dispute that the Claimant’s engagement with the Respondent was to come to an end, by effluxion of time, by 31st December 2023. There is no evidence on record that the parties had agreed on the renewal of the contract or that the Respondent had guaranteed or promised such renewal. In my considered view, there is no basis for the Claimant asking the Court to grant her compensation equivalent to 12 months gross salary. Surely, as much as the court has found and held that the dismissal was wrongful, unfair, and unlawful, there is no basis whatsoever established or proved upon which the court may grant such an order. Bar the dismissal or renewal of the contract, which was in any event not automatic, the Claimant was only guaranteed of a job with the Respondent for a further two months from October 2023. Her contract was expiring on 31st December 2023. This prayer is thus denied. 92.However, the Claimant still had two months to run in her contract. The court having found that she was unlawfully dismissed, there is a good basis for award of salary for the two unserved months as it is the Respondent who denied her the opportunity to complete the contract. In this regard, the Claimant is awarded Kshs56,619/= * 2= Khs113,238/=. 93.Prayer (d)(ii) is payment of one month’s salary in lieu of notice. The Claimant was wrongfully, unfairly, and unlawfully summarily dismissed without notice. She was entitled to a notice and the court shall award her Kshs56,619/= therefor. 94.Prayer (d)(iii) is for “Payment of unpaid leave days in the sums of Kshs”. As the Court has observed and noted above, parties are bound by their pleadings. The leave prayed for is neither disclosed in time or period nor in the value or the sum claimed. The Court has no business filling-in gaps left by the parties in their pleadings or evidence. There is nothing quantified for the court to evaluate and the prayer is thus denied. 95.Prayer (e) is for general damages for breach of the Claimant’s constitutional right to fair labour practices. Counsel cited Gumbe V Vice-Chancellor, The Technical University of Kenya & Another (supra) wherein the petitioner was awarded Kshs500,000/= for breach of constitutional rights under Articles 41 & 47 of the Constitution. It was submitted that the Respondents violated the same rights against the Claimant. 96.The court has to draw a distinction between the decision cited above and this cause. The above decision was rendered in a constitutional petition wherein the substratum of the petition was breach and violation of constitutional rights. As much as the court agrees with the Claimant that her constitutional rights were violated, the court relied on statutory provisions in the Employment Act in finding and holding that she was wrongfully, unfairly, and unlawfully dismissed. 97.But as a matter of fact, and the law, the rights of the Claimant were violated under Articles 41 and 47 of the Constitution. Section 12(3)(vi) of the Employment and Labour Relations Court Act gives this court the discretionary power to award damages in any circumstances contemplated under any written law. The Constitution of Kenya is a written law but, of course, above the statutes and as the grund-norm. 98.Considering the entire circumstances of this cause, the court shall exercise its discretion and award to the Claimant a minimal sum of Kshs200,000/= for the violation of her constitutional rights as alluded to above. 99.The Claimant is also awarded costs of the cause and interest on the awarded amount till payment in full. VI. Orders 100.The court issues orders that -a)A declaration be and is hereby issued that the dismissal of the Claimant by the Respondent was wrongful, unfair and unlawful.b)The Claimant is awarded the following –i.Salary for the two remaining months in the contract ……………… Kshs113,238/=ii.One month’s salary in lieu of notice …… Kshs56,619/=iii.Compensation for violation of Claimant’s constitutional rights ……… Kshs200,000/=Total …………………………… Kshs369,947/=The total award is subject to statutory deductions.c)Costs of the cause to the Claimant.d)The awarded amount shall earn interest at court rates from the date of this judgment till payment in full. DELIVERED VIRTUALLY, DATED, AND SIGNED AT KAKAMEGA THIS 30TH DAY OF JULY 2026.…………………………DAVID NDERITUJUDGE