https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2124

 **REPUBLIC OF KENYA** **IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT** **NAIROBI** (ON Makau J on 23rd July 2026) **ELRC CASE NO. E885 OF 2023** **ERICK MUNENE NZAU………..…………………………….CLAIMANT** **-VERSUS-** **EVEREST PRODUCTION CORPORATION** **KENYA LIMITED…………..……….….…………………RESPONDENT** **JUDGMENT** **Introduction** 1. The Claimant was employed by the Respondent from August 2018 to 6th November 2020 when he was summarily dismissed for alleged misconduct. By a Memorandum of Claim dated 1st November 2023, he sued the Respondent for unfair termination of his employment and prayed for the following reliefs:- 2. ***A declaration that the Claimant's termination was unlawful and/or unfair;*** 3. ***Payment in lieu of 1 months' notice;*** 4. ***Payment for 10 untaken leave days and 6 days worked in November, 2020;*** 5. ***12 months' compensation for unlawful and/or unfair termination;*** 6. ***An order for service pay;*** 7. ***An order for issue of Certificate of Service;*** 8. ***Any other or further relief that this Honorable court may deem fit and just to grant.*** 9. ***Costs of this suit and interest at court rates.*** 10. The Respondent filed a Statement of Defence dated 25th July 2025 admitting the employment but denying that the dismissal of the Claimant was unlawful. It averred that the Claimant was summarily dismissed on 6th November 2020 for acts constituting gross misconduct, after fair disciplinary process. It further averred that the claimant was fully paid all his terminal dues and secured another employment. Therefore it prayed for the suit to be dismissed with costs. **Evidence** 1. The Claimant testified as CW1 and adopted his written statement dated 27th October 2023 as his evidence in chief. He also produced a bundle of 13 documents in the list dated 1st November 2023, as exhibits. 2. In brief, his evidence was that he was employed as a news anchor at Ebru TV in 2018 and was promoted to the position of Head of News in 2019. During his tenure as a newsroom manager, he found himself caught between conflicting directions from two different offices, the CEO of Turkish origin and the Operations Manager, a Kenyan, who held contrasting views. The CEO, Murat Kesign, had three compatriots who headed different departments: Mr. Tarik managed the technical department, Mr. Enes oversaw the digital media department and Mr. Tuncay was in charge of the graphics department. The four individuals did not share the same perspective as the Operations Manager, Mrs. Anab Mohamed. Unfortunately, Mrs. Mohamed created a toxic work environment and fostered a belief among the employees that the Turkish managers were not acting in the company's best interests, which belief was unfounded. 3. The Claimant further stated that Mrs. Mohamed made it exceedingly difficult for employees, regardless of their Kenyan or Turkish background, to collaborate effectively. She consistently alleged, without providing any supporting evidence, that employees were redirecting advertisement revenues into their personal accounts. In an attempt to refute this baseless claim, she was asked to explain how advertisement fees meant for the station had ended up in individual accounts when the alleged advertisements had not been broadcast on the station. She never provided a satisfactory explanation. 4. In his role as the Head of the News Department, the Claimant stated that he often felt obligated to consult Mrs. Mohamed, the Operations Manager, whenever the CEO called him to his office. Mrs. Mohamed accused anyone who engaged in official or unofficial discussions with the CEO or other managers of conspiring to undermine the company. The Claimant emphasized that he was an industrious employee of Ebru TV, always going the extra mile to find solutions to the difficulties the media industry was facing. He proposed the launch of a caller ring back tone service, commonly known as Skiza Tunes, which was successfully implemented and significantly contributed to the company's profits. 5. The Claimant stated that despite his dedication, Mrs. Mohamed devised what he described as a standardized process for terminating employees with whom she disagreed. When it came to such terminations, other senior managers were marginalized. The Claimant frequently disagreed with her regarding the termination of employees without sufficient grounds. These disagreements led her to issue him a warning letter on 14th July 2020. 6. He stated that, two months after the said warning letter, Mrs. Mohamed, in an apparent acknowledgment of his performance, renewed his contract one year. She further approved this application for a vehicle loan facility from Stanbic Bank, stating that he was not under notice of resignation or facing any disciplinary action. She even indicated in the letter that in the event of his relationship with Ebru TV being terminated, the company would settle any claims owed to the bank. However, she never she kept her word after the dismissal, auctioneers took aggressive measures against him. 7. The Claimant stated that despite his termination letter stating that he would receive his dues until the last day of his termination, he did not receive any payment from the company at the end of November 2020. 8. At no point was he subjected to any disciplinary proceedings. He was simply issued with the summary dismissal letter and asked to leave when all along, he had served the Respondent diligently. He urged the Court to intervene and protect his rights as enshrined under the Law. 9. On cross examination, he reiterated that he was the head of news. He also reiterated that he received a warning letter in July 2020 but on 1st September 2020 his contract was renewed for one year. He admitted that the contract provided for a termination clause. He contended that the contract was terminated on 6th November 2020 but he was not paid any money for notice. 10. In re-examination, he stated that after the warning in July 2020, his contract was terminated in November 2020 on allegation of theft. He was not given his disciplinary hearing. 11. The Claimant called Mr. Ayub Mutua Mwangi, as his witness. He testified as CW2 and adopted his written statement dated 26th October 2023 as his evidence in chief. 12. In brief he stated that he worked for EBRU TV for 4 years and was present when the Claimant was dismissed in a general staff meeting where he was accused of stealing from the company. After the meeting, the Claimant was served with a dismissal letter. 13. In re-examination, he stated that no proof was given of the alleged stealing by the Claimant. 14. The Respondent called its Operations Manager, Anab Mohamed, as its only witness. She testified as RW1 and adopted her written statement dated 25th July 2025 as evidence in chief. She also produced 4 documents in the list dated 25th July 2025, which were marked as exhibit D1 - D4 respectively. 15. In brief, RW1 confirmed that she was the Operations Manager for respondent. She also confirmed that the Claimant was employed by the Respondent as an Assignment Editor in the News Department from August 2018 and with effect from 1st April 2019, he was promoted to Head of the News Department. 16. She further stated that the respondent has always maintained a well-structured and efficient management system to ensure proper workflow, accountability, and adherence to company policies by all employees, including the Claimant. 1. She contended that the salary adjustment of 15% effected on 1st April 2020 was a company-wide measure applied to all employees earning above Kshs. 35,000, and it was due to the economic challenges posed by the COVID-19 pandemic. 2. She further contended that the Claimant persistently engaged in acts of insubordination and misconduct, including refusal to cooperate with supervisors, incitement of colleagues and unauthorized alterations of company content which earned him a formal warning letter dated 14th July 2020. Despite the said warning, the Claimant failed to correct his behavior and continued with the same misconduct, which disrupted the company's operations. 3. She stated that, as a result of these repeated acts of gross misconduct, the Claimant's employment was lawfully and summarily terminated on 6th November 2020 in accordance with Section 44 of the Employment Act, 2007 and the terms of his employment contract. 4. All terminal dues lawfully owed to the Claimant, including accrued leave, were paid in full and there were no outstanding payments due to him. The Claimant is not entitled to service pay, damages, or any of the reliefs sought, as the termination of his employment was justified, lawful and carried out in full compliance with both the law and company policies. She urged the court to do justice according to the evidence. 5. The Claimant and his Counsel did not attend the defence hearing and therefore Respondent closed its defence case without any cross examination of its witness. **Submissions** 1. After the hearing the parties filed written submissions. The Claimant filed his written submissions dated 20th March 2026. In brief, he submitted that the warning letter dated 14th July 2020 accusing the Claimant of insubordination and general office misconduct but there was no evidence to substantiate the allegations. He was also not given any opportunity to respond to the allegations contained in the warning letter but on 1st September 2020, his contract of employment was renewed for one year. 2. He further submitted that the summary dismissal letter dated 6th November 2020, stated that the Claimant interfered with business income and diverted the revenue of the station, incited workmates and recruited them to indulge in theft, non-performance on several occasions, non-submission of reports and increasing leave days without permission from the office. He was also accused of impersonating the company brand to interfere with the marketing department and conducting fraud. However, he maintained that none of the said allegations was supported by any evidence. 3. He submitted that Section 43 of the Employment Act places a burden of proving the reasons for termination of employees contract on the employer, who must demonstrate by sufficient evidence that the reason genuinely existed. Section 45(2) of the Employment Act further provides that termination of employment by an employer is unfair if the employer fails to prove that the reason for the termination is valid, that the reason is fair, and that the employment was terminated in accordance with fair procedure. 4. He submitted that for fair summary termination, there must be both substantive justification and procedural fairness. He maintained that his summary dismissal failed both tests. He reiterated that the respondent did not adduce evidence to support the allegation and no investigation report was produced as evidence. 5. He further submitted that the respondent did not dispute the fact that he was not taken through any form of disciplinary process and he was not called upon to respond to the allegations made against him. 6. For emphasis he relied on the case of **Cooperative Bank of Kenya Limited v. Yator [2021] KECA 95 (KLR)** where it was observed that even where an employee had committed gross acts of misconduct which warranted summary dismissal, the law required that before such sanction was undertaken, an employer had to ensure procedural fairness to the employee by allowing the employee to give his defence. 7. Finally, he submitted that he is entitled to the reliefs sought in his Claim. 8. The Respondent filed its written submissions dated 1st April 2026 and 5th May 2026. In brief it submitted that that the termination of the Claimant was lawful, justified, and in full compliance with the provisions of the Employment Act, 2007, as the Respondent had valid and fair reasons to terminate. 9. It acknowledged that under Section 43(1) of the Employment Act, an employer is required to prove the reason or reasons for terminating an employee's contract while under Section 45(2)(a) and (b), termination is unfair if the employer fails to prove that the reason for termination was valid, fair and related to employee's conduct, capacity, compatibility, or based on the operational requirements of the employer. 10. It further submitted that the Claimant held a position of trust and managerial authority requiring a high level of professionalism, discipline and adherence to organizational policies but he persistently engaged in acts of insubordination, disregard for established communication protocols and interference with editorial content without authorization, thereby undermining operational structure and managerial authority constituting serious and uncongenial misconduct. 11. It submitted that Section 44(4)(e) of the Act provides that an employer may summarily dismiss an employee where the employee knowingly fails or refuses to obey a lawful and proper command issued by a person placed in authority over him by the employer. 12. The Respondent relied on the case of **Kenfreight (EA) Limited v.Benson K. Nguti [2016] eKLR**, where the Court of Appeal emphasized that an employer must demonstrate valid reasons for termination and such reasons must relate to the employee's conduct or operational requirements. It also relied on **Judicial Service Commission v. Gladys Boss Shollei & Another [2014] eKLR**, where the Court of Appeal affirmed that insubordination, misconduct and conduct incompatible with the duties of an employee can constitute valid grounds for termination. 13. It further relied on **Co-operative Bank of Kenya Limited v. Banking Insurance & Finance Union (Kenya) [2017] eKLR**, where the Court of Appeal reiterated that the test is whether the employee's dishonesty gave rise to a breakdown in the employment relationship. It also relied on **Bank of Baroda (Kenya) Limited v. Timwood Products Limited [2019] eKLR**, where the Court emphasized that the employment relationship is founded on mutual trust and confidence and where that trust is fundamentally breached, the employer is entitled to terminate the relationship. 14. As regards procedure, the Respondent submitted that it adhered to Section 41 of the Employment Act, which requires an employer before terminating employment to inform the employee of the allegations against him in a language he understands and allow him an opportunity to respond to those allegations in the presence of another employee or union representative of choice. It relied on the case of **Ngila v. Kenya Breweries Ltd [2025] KEELRC 455 (KLR)**, where the Court emphasized that under Section 41, employers must clearly inform employees of allegations and give them a fair chance to respond. 15. The Respondent submitted that it issued the Claimant with a warning letter which constituted an initial disciplinary intervention intended to give the Claimant an opportunity to reform his conduct before further disciplinary action. Despite the Respondent's efforts, the Claimant persisted in the conduct constituting gross misconduct. 16. For emphasis itt relied on **Postal Corporation of Kenya v. Andrew K. Tanui [2019] eKLR**, where the Court of Appeal clarified that an employer must demonstrate that the employee was notified of the specific allegations against him, given an opportunity to respond, and allowed to make representations before a decision to terminate employment was made. It also relied on **Walter Ogal Anuro v. Teachers Service Commission [2013] eKLR**, where the Court clarified that fairness in termination rests on two key pillars: substantive justification and procedural fairness. 17. As regards the issue of temporary salary reduction implemented in April 2020 was a lawful variation of the Claimant's employment contract and constituted a reasonable and necessary managerial measure adopted to preserve employment and ensure business continuity. It argued that Section 10(5) of the Employment Act permits an employer to vary the terms of a contract of employment provided that the employer consults and notifies the employee of the charge in writing. 18. The Respondent relied on **Kenya Airways Limited v. Aviation & Allied Workers Union Kenya & 3 Others [2014] eKLR**, where the Court of Appeal acknowledged that employers are entitled to make operational decisions aimed at ensuring the survival of the business. It also relied on **Hesbon Ngariyya Waigi v. Equatorial Commercial Bank Limited [2013] eKLR**, where the Court held that changes in employment conditions may occur as part of legitimate management decisions, particularly where such measures are necessitated by economic realities and applied across the workforce. It further relied on **Thomas De La Rue (K) Ltd v. David Opondo Omutelema [2013] eKLR**, where the Court of Appeal recognized that employers may introduce organizational changes where necessary for operational efficiency. 19. As regards the issue of the reliefs sought, the Respondent submitted that the Claimant is not entitled to the same contending that the termination was lawful. It relied on **CFC Stanbic Bank Limited v. Danson Mwashako Mwakuwona**, where the Court of Appeal held that an employer is justified in terminating an employee where the employee's conduct demonstrates persistent disregard for managerial authority and internal procedures. 20. It also relied on **Kenya Ports Authority v. Festus Kipkorir Kiprotich [2014] KEELRC 63 (KLR)** where the Court emphasized that damages should not amount to unjust enrichment where the employee has mitigated any alleged loss through subsequent employment. **Analysis** 1. Having considered the pleadings, evidence, and submissions, it is common ground that the Claimant was employed by the Respondent in its Eburu TV station under fixed term contract. It is also common ground that the claimant’s contract was renewed for one year from 1st September 2020 but the Respondent dismissed the Claimant on 6th November 2020 for alleged gross misconduct. The main issues for determination are : - 2. Whether the dismissal of the Claimant was unfair and unlawful. 3. Whether the reliefs sought are merited. **Unfair and unlawful dismissal** 1. The Claimant contended that the termination of his employment was unfair and unlawful, but the Respondent was of a different view. Section 45(2) of the Employment Act provides that termination of employment is unfair if there is no valid reason and/or that fair procedure was not followed. The said provision is copied below: - ***“(2) A termination of employment by an employer is unfair if the employer fails to prove:*** ***(a) that the reason for the termination is valid;*** ***(b) that the reason for the termination is a fair reason---*** ***(i) related to the employee's conduct, capacity or compatibility; or*** ***(ii) based on the operational requirements of the employer; and*** ***(c) that the employment was terminated in accordance with fair procedure.”*** **Reason** 1. RW1 testified that the Claimant was dismissed after he persistently engaged in acts of insubordination and misconduct, including refusal to cooperate with supervisors, incitement of colleagues, and unauthorized alterations of company content. He was issued with a formal warning letter dated 14th July 2020, but he failed to correct his behavior and continued with the same misconduct, which disrupted the company's operations. The Claimant denied the alleged offence in his evidence herein. 2. The Respondent produced the warning letter dated 14th July 2020 and the summary dismissal letter dated 6th November 2020 as exhibits. The warning letter accused the Claimant of insubordination and general office misconduct. The summary dismissal letter accused the Claimant of interfering with business income and diverting the revenue of the station, inciting workmates and recruiting them to indulge in theft, non-performance on several occasions, non-submission of reports and increasing leave days without permission from the office. He was also accused of impersonating the company brand to interfere with the marketing department and conducting fraud. 3. The Claimant's witness, CW2 Ayub Mutua Mwangi, testified that during the staff meeting on 6th November 2020, the Operations Manager accused the Claimant of stealing from the company by diverting advertising revenue that was meant for the station. Both the claimant and his witness stated that there was no evidence presented by the company to support the allegations of theft that led to the dismissal of the Claimant. CW2 further stated that no documents or any other proof was provided during the general staff meeting on 6th November 2020. 4. I have considered the evidence on record and noted that the Respondent did not produce any investigation report, witness statements from the alleged victims, financial records, or any other documentary evidence to support the serious allegations of theft, diversion of revenue, incitement of colleagues, or fraud. The only documents produced were the warning letter and the summary dismissal letter. The Respondent's witness did not provide any specific details of the alleged misconduct or how the investigations were conducted. I am not satisfied that the Respondent has proved on a balance of probability the reason for the summary dismissal of the Claimant. 5. Section 43(1) of the Employment Act provides that in any claim arising out of 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. In the instant case, the Respondent has failed to prove the reasons for the termination of the Claimant's employment. 6. Furthermore, I note that the Claimant's contract was renewed on 1st September 2020 for one year, barely two months before the dismissal. This renewal was enough proof that the Respondent was satisfied with the Claimant's performance and conduct at that time. The Respondent's contention that the Claimant's conduct persisted despite the warning letter is therefore not convincing. 7. Besides, the allegations in the warning letter were used to dismiss the Claimant, which amounts to double jeopardy. An employer is not entitled to dismiss his employee for the same allegations contained in a warning letter since the warning. **Procedure** 1. Section 45(2)(c) of the Employment Act places on the employer the burden of proving that termination of employment contract was done in accordance with fair procedure. Section 41 of the Act then sets out the procedure for terminating employment for misconduct as follows: - ***“(1) subject to section 42(1), an employer shall, before terminating the employment of an employee, on the grounds of misconduct, poor performance or physical incapacity explain to the employee, in a language the employee understands, the reason for which the employer is considering termination and the employee shall be entitled to have another employee or a shop floor union representative of his choice present during this explanation.*** ***(2) Notwithstanding any other provision of this Part, an employer shall, before terminating the employment of an employee or summary dismissing an employee under section 44 (3) or (4) hear and consider any representations which the employee may on the grounds of misconduct or poor performance, and the person, if any, chosen by the employee within subsection (1), make.”*** 1. The above procedure is mandatory and the bare minimum is that before terminating the services of an employee on account of misconduct, the employer must accord the employee an oral hearing. During the hearing, the employer is required to explain the misconduct to the employee in a language he/she understands. The employee is entitled to have another employee present during the explanation and both the employee and his companion are entitled to respond to the allegations. Finally, the response by the employee and his/her companion must be considered before the verdict is made, which must be communicated to the employee in a fair manner. 2. In the instant case, the Claimant testified that he was not given a disciplinary hearing. CW2 corroborated this by stating that the Claimant was dismissed in a general staff meeting and thereafter served with a dismissal letter. The Respondent did not produce any minutes of a disciplinary hearing or any evidence to prove that the Claimant was given an opportunity to respond to the allegations before the dismissal. 3. The Respondent relied on the case of **Postal Corporation of Kenya v. Andrew K. Tanui [2019] eKLR** to argue that procedural fairness was followed. However, in that case, the Court of Appeal held that an employer must demonstrate that the employee was notified of the specific allegations against him, given an opportunity to respond, and allowed to make representations before a decision to terminate employment was made. In this case, the Respondent did not demonstrate that these procedural requirements were met. 4. In the case of **Cooperative Bank of Kenya Limited v. Yator [2021] KECA 95 (KLR)**, which the Claimant relied on, the Court observed that even where an employee had committed gross acts of misconduct which warranted summary dismissal, the law required that before such sanction was undertaken, an employer had to ensure procedural fairness to the employee by allowing the employee to give his defence. This court has held countless times that even where an employee's offence is obvious, the law entitles him/her to a fair hearing before dismissal or other disciplinary action is decided. 5. In this case, the reason for dismissing the Claimant was not substantiated and he was not accorded a fair hearing. Consequently, I hold that his summary dismissal was unfair and unlawful within the meaning of section 45 of the Employment Act. **Reliefs** 1. In view of the foregoing conclusion, I find that the Claimant is entitled to declaration that his dismissal was unlawful and unfair. Flowing from the said declaration I find that the Claimant is entitled to salary in lieu of notice and compensation for unfair termination under section 49 of the Employment Act. 2. The Claimant’s contract provided for one month's notice before termination or payment of salary in lieu of notice. Therefore I award him one month salary in lieu of notice being Kshs. 123,000/-. 3. The Claimant prayed for payment for 10 untaken leave days and salary for 6 days worked in November 2020. The Respondent averred that all terminal dues owed to the Claimant, including accrued leave for November 2020, were fully paid and settled as reflected in the final payslip. However, the Respondent did not produce the final payslip or any other document to demonstrate that the leave days and days worked were paid. I therefore award the Claimant payment for 10 untaken leave days and 6 days worked in November 2020. 4. Based on the monthly salary of Kshs. 123,000, the salary for the 6 days worked in November is Kshs. 24,600 The total award for leave days is Kshs. 41,000. 5. The Claimant prayed for 12 months' compensation for unlawful and/or unfair termination. The Claimant worked for the Respondent from August 2018 to November 2020, a period of about 2 years and 3 months. He never contributed to his dismissal through his conduct although I note that he had received a warning letter dated 14th July 2020. In the circumstances of the case and award the Claimant 3 months' gross salary as compensation for unfair termination, being Kshs.123,000 x 3 = Kshs.369,000. 6. The Claimant prayed for an order for service pay but he did not compute the same. Section 35(5) of the Employment Act entitles an employee to payment of service pay. The claimant was a member of the NSSF and his employer contributed for him save for a few months. However, the default was minimal and it can be remedied by directing the employer, which I hereby do, to remit the outstanding remittance forthwith. In view of the foregoing direction to the respondent, I decline to grant the prayer for service pay. 7. The Claimant prayed for an order for issue of Certificate of Service which I grant without any hesitation since it his right under Section 51 of the Employment Act. 8. The Claimant also prayed for costs of this suit and interest at court rates. Costs follow the event unless the court for a good cause directs otherwise. Since the Claimant has succeeded in his claim and is entitled to costs and interest. **Conclusion** 1. I have found that the dismissal of the Claimant was unfair and unlawful within the meaning of section 45 of the Employment Act. I have further found that the Claimant is entitled to some of the prayers sought. Consequently, I enter judgment for the Claimant against the Respondent as follows: - 2. A declaration that the Claimant's termination was unlawful and/or unfair. 3. Notice Kshs. 123,000/- 4. Compensation 3 months' gross salary Kshs. 369,000/- 5. Leave of 10 days Kshs. 41,000 6. Unpaid salary for 6 days Kshs. 24,600 **Total Kshs.557,600** 1. The award is subject to statutory deductions. 2. The Respondent to issue the Claimant with a Certificate of Service forthwith. 3. The Claimant is awarded costs and interest at court rates from the date of this Judgment. **DATED, SIGNED AND DELIVERED VIRTUALLY IN OPEN COURT AT NAIROBI THIS 23RD DAY OF JULY, 2026.** **ONESMUS MAKAU** **JUDGE** **Appearance:** Kariuki for Claimant Mbua for Respondent