https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1788

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT VOI** *(Before Hon. Lady Justice Monica Mbarũ)* **CAUSE NO. E001 OF 2025** **GEOFFREY BANDA NZYOKI CLAIMANT** ***VERSUS*** **KENYA SAFARI LODGES AND HOTELS LIMITED RESPONDENT** **AND** **KENYA UNION OF DOMESTIC, HOTELS, EDUCATIONAL** **INSTITUTIONS, HOSPITALS AND ALLIED WORKERS** **(KUDHEIHA) INTERESTED PARTY** **JUDGMENT** The claimant is a male adult. The respondent is a limited liability company. The interested party is a trade union under which the claimant was unionised. The respondent employed the claimant on 1 February 1990 as an accounts’ clerk/receptionist. He submitted his O-level and A-level school academic certificates. Through a circular dated 19 October 2023, the Public Service Commission (PSC) required the respondents to conduct an audit of academic and professional certificates of all newly appointed officers in the last 10 years in Ministries, departments and state corporations. Based on the PSC circular, the claim was not covered under the audit. By 19 October 2022, he had served the respondent for 32 years. A similar circular had been issued on 27 June 2012, and still, it did not cover the claimant. He had then worked for the Respondent for 22 years. The claim is that the respondent, actuated by malice, sought that the PSC conduct an audit of all employees who are beyond the 10-year mark. In a letter dated 21 December 2022, the PSC allowed the respondent to extend the audit timeline to cover all employees to whom the officers were appointed, redesignated, or promoted. The claim is that, based on the PSC guidance, he had not been redesignated or promoted for the entire duration of his service. His employment remained under the certificates as submitted for O and A levels only. The allegations that he obtained employment based on a forged Diploma Certificate dated 10 November 2000 are not correct. It was done out of malice to bring such a matter against him, resulting in a summary dismissal that is unwarranted and unfair. The claim is that the Diploma Certificate found in his file was used for a job application he never secured. The Diploma certificate found in his personal file was not beneficial to the claimant. In 2010, the claimant applied for promotion as an assistant manager at Voi Safari Lodge, but he failed to secure the position. He retained his original employment, and it was unfair to use the certificate to justify a summary dismissal. Upon summary dismissal, the respondent has denied the claimant his terminal dues despite the PSC directing payment. In a letter dated 21 October 2022, the court declared that a person or employee dismissed from service, regardless of the modality of the exit, is entitled to their pension, gratuity, and accrued benefits as of the date the matter is concluded. The claim is that upon his summary dismissal, the interested party trade union engaged the respondent and the County Labour Officer, who held a meeting on 7 February 2024, but the respondent failed to attend, citing that the Ethics and Anti-Corruption Commission (EACC) and the Director of Criminal Investigations had urged them not to, which is not true. The claimant is seeking orders declaring the respondent's summary dismissal, effected by the letter dated 20 December 2023, unfair. The claimant is also seeking the following: 1. *3 months in lieu of notice.* 2. *Gratuity at 25 days for 33 years worked.* 3. *House allowance at 25 days for 33 years.* 4. *Pension benefits for monthly deductions of 5% of basic pay for 33 years.* 5. *Employer's contribution to pension at 5% of the basic pay for 33 years.* 6. *Certificate of service.* 7. *Costs of the suit.* The claimant testified at length about his case and admitted that, upon being employed by the respondent in February 1990 as an accounts clerk, he worked diligently until his termination on 20 December 2023. T based on his O and A-level certificates. The claimant admitted that in 2010, the respondent advertised for the position of Assistant Manager, which he applied for using a Diploma Certificate dated 10 November 2000. He did not get the employment. The document was not properly obtained from the University of Nairobi as indicated. He has not used it again and remains employed as an accountant/receptionist. The claimant admitted that the questioned certificate never formed the basis of his employment with the respondent. The alleged forged certificate did not benefit him at all. He was denied his terminal benefits unfairly, and the orders sought in the claim should be issued to allow him to retire with dignity. In response, the respondent states that the respondent employed the claimant on 1 February 1990 as an accountant. However, his employment was terminated on 20 December 2023 for justified reasons. He was issued a notice to show cause setting out the charges against him. He was invited to a disciplinary hearing but was unable to provide a proper explanation for submitting a forged diploma certificate, and he denied the allegations. The response is that the respondent subjected the documents submitted by the claimant in his employment to verification by the issuing body, the University of Nairobi. The result was that the certificate was not authentic. The respondent is thus bound by the communications from the PSC and the EACC to the effect that any employment produced based on forged documents is null and void ab initio. The respondent had reasonable cause to terminate the claimant's services, which were communicated to him in the notice to show cause. The claimant has admitted that the documents submitted to the respondent were forged. There is no trust and confidence in him, and the summary dismissal from employment was justified. The claim should be dismissed with costs. In evidence, the respondent, Ronald Simiyu, the general manager, testified that on 19 October 2022, the PSC issued a circular to all government agencies, including the respondent, regarding the verification and authentication of employee certificates for newly employed officers over the last 10 years. The respondent wrote to the PSC seeking clarification on whether the exercise to verify certificates could be extended to all employees, and the PSC approved this in a letter dated 21 December 2022. Simiyu testified that the respondent wrote to the University of Nairobi Examination Centre by letter dated 29 November 2022, attaching the Diploma Certificate presented by the claimant for verification. The Academic Registrar, in a letter dated 22 December 2022, responded, confirming that the University of Nairobi did not issue the certificate and stating that the claimant was not a student of the institution. Consequently, the claimant was issued with a notice to show cause dated 10 January 2023. He responded on 15 January 2023 and admitted to the forgery he perpetrated when an opportunity arose in Voi, but his application was unsuccessful. The respondent convened a disciplinary committee and invited the claimant on 15 and 17 November 2023. The claimant attended with his representative, a shop steward, Daniel Wekesa. At the disciplinary hearing, the claimant admitted to having forged the certificate and to never having attended the University of Nairobi. He asked for forgiveness. Guided by the PSC circular and the EACC, and the fact of the forged certificate found in the claimant’s file, summary dismissal was justified. The claims made are without merit and should be dismissed with costs. The respondent reported the matter to the Director of Criminal Investigations (CID) and EACC for further investigations. Simiyu testified that the allegations that the summary dismissal was the result of malice and a witch hunt are incorrect, since the claim was issued with notice to show cause, and he admitted that he had submitted a forged certificate. The respondent cannot trust or have confidence in him as an employee. At the close of the hearing, parties filed written submissions, which are included in the findings. **Determination** The claimant is seeking the payment of his terminal dues on the basis that his employment was secured through his O and A-level certificates, but during his employment, he applied for a promotion and attached a forged document. He did not secure employment; hence, the foundation of his employment with the respondent was not lost. The respondent asserts that the claimant was taken through the due process and found to have used a forged document seeking a promotion. Such was a breach of trust and confidence, and his summary dismissal is justified. The issues which arise for determination are: Whether the employment was lawfully or unfairly terminated. Whether the claimant is entitled to his terminal dues, including gratuity and pension. Whether costs are due. Through a notice dated 20 December 2023, the respondent terminated the claimant’s employment through summary dismissal. The reasons were that, following a verification by the University of Nairobi of the Diploma Certificate in Business Administration, the claim had been submitted on 10 November 2000, and the document was found to be forged. Under the Code of Conduct for the respondent, this was defined as dishonesty and the PSC, through a circular dated 19 October 2022, had directed of such verification. This thus formed the basis for the termination of employment. The same being presumed on forged documents was null and void; *“... Hence, your employment is declared null and void from the date of appointment, and further, you shall not be entitled to any form of* *benefit, including pension or unpaid leave and accrued leave. …”* The essence of the employment relationship is trust and confidence between parties. It secures goodwill even when the written terms and conditions do not address such matters directly. Hence, where trust and confidence are lost, the employment relationship is fundamentally tainted. The claimant readily admitted that he used a forged document to seek a promotion. This arose in 2010 when the respondent advertised for a higher position, assistant manager Voi, and, to support the application, he used a forged certificate dated 10 November 2000 purporting to be from the University of Nairobi. He did not secure the promotion. He remained the accountant. In balancing rights at the shop floor, the employer is allowed to keep all work records under section 10(6) and (7) of the Employment Act (the Act) for up to 5 years: ***(6) The employer shall keep the written particulars prescribed in subsection (1) for a period of five years after the termination of employment.*** ***(7) If in any legal proceedings an employer fails to produce a written contract or the written particulars prescribed in subsection (1) the burden of proving or disproving an alleged term of employment stipulated in the contract shall*** ***be on the employer.*** However, when addressing workplace misconduct, the employer may draw on the entire work record under section 45(5) of the Act. The court, too, in assessing whether the employer has acted fairly or unfairly, must consider the employee's record. The circular by the PSC dated 19 October 2022 directed the respondent, among other things: *“… to authenticate academic and professional certificates prior to appointments and promotional decisions in respective Ministries/Departments and State Corporations.”* Thus, to maintain the integrity of the public service, the PSC directed the respondent as follows: * *To undertake an audit of academic and professional certificates of all newly appointed officers for the last ten years in Ministries/Departments and State Corporations and submit a report of the exercise by 31 January 2023.* * *To continuously validate academic and professional certificates prior to appointment and promotions, and file the same through the Compliance and Quality Assurance quarterly (M&E) and Annual reports to the Commission.* * *To dismiss from the service in accordance with the provisions of the Public Service Act, the Public Officer Ethics Act and the Leadership and Integrity Act, any officer found in possession of forged certificates.* The severity of these guidelines and directions by the PSC is to secure the public service and ensure integrity. Verification and authentication apply to those seeking employment and those seeking promotions. The claimant’s admission that he used a forged certificate while seeking a promotion to the position of assistant manager at Voi placed him in conflict with the PSC circular. He cannot justify the fact that he did not secure the employment, and hence, he is not bound. Fundamentally, the claimant, as an accountant, is professionally aware of what submitting forged documents entails. It comprises a transition. Indeed, in [**Celina Nadite & 19 others v National Police Service Commission [2019] KEELRC 2120 (KLR)**](https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/2120/eng%402019-03-07)**,** the court held that the lack of financial probity goes to the foundation of trust and integrity. This position is reiterated in **Otieno & 37 others v Union of Kenya Civil Servants & 3 others [2024] KEELRC 99 (KLR),** where the court emphasised that lack of financial probity taints a relationship. Indeed, certain professions, such as accounting, are highly regulated and require a higher standard of integrity and probity. In **Agnes Murugi Mwangi v Barclays Bank of Kenya Limited [2013] KEELRC 910 (KLR),** the court held that, in banking, the business of handling other people's money requires banks to demonstrate a high degree of integrity and financial probity to maintain customer confidence. The claimant, too, as an accountant, should have had integrity as his currency. Submissions of forged documents to secure a promotion tainted his career. His claim that he did not receive the employment because of such forged documents is not plausible. The respondent, as a public entity regulated by the PSC, is bound. The application of the directives, therefore, on the circular dated 19 October 2022 and the further clarifications thereon to extend to all employees was well-founded. The claimant's termination of employment was justified. The PSC addressed his admissions that he used a forged document to seek a promotion in its circular. The record of forged certificates constitutes the work records for the claim and cannot be ignored under section 45(5) of the Act. This must be read with the Public Officer Ethics Act and the Leadership and Integrity Act. On the claim, notice pay is not due in the given circumstances where summary dismissal is justified. On the claims for payment of gratuity, although the claimant was an interested party, there was no appearance. There's no response, save that the claimant filed the applicable collective agreement (CBA). Under clause 27 of the CBA, gratuity is payable in accordance with the Salaries and Remuneration Guideline at 31% for every year of service. However, the SRC guidelines must be weighed against the PSC circular. Cumulatively, where a summary dismissal is justified, gratuity pay is not due. On the claim for pension at 1% of the employee contribution and 5% of the employer contribution, indeed, as submitted by the claimant, the pensions due are regulated under a different regulatory regime. His contributions to the pension scheme at 1% should not be lost on the basis that, since his employment from 1 February 1990 to 2010, when he submitted the forged certificate, he had honestly served without any record. For pensions due, the applicable rules and regulations shall be complied with, and the respondent shall assist the claimant to secure his contributions accordingly. This shall be paid for the duration of employment and based solely on the claimant’s contributions and the rules and regulations of the pension entity, which should be separate and distinct from the respondent. On costs, as analysed above, each party should meet its costs. **Accordingly, the claim is found to be without merit; the respondent shall facilitate the claimant's clearance to obtain his pension contributions for the period of employment. The rules governing the pensions shall apply to the 1% basic pay contributions. Each party to bear its costs.** **Delivered in open court this 29th day of June 2026** **M. MBARŨ** **JUDGE** **In the presence of:** **Court Assistant: Samuel Maruga** …………………………………… and ……………………………………….