https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2175

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT & LABOUR RELATIONS COURT** **AT NAIROBI** **ELRC CAUSE NO. E186 OF 2024** ***(Before Hon. Lady Justice Hellen Wasilwa, J)*** **JOHN JAGONGO OBARA……….....………………………....CLAIMANT** **VS** **THE TECHNICAL UNIVERSITY OF KENYA………...…RESPONDENT** **JUDGMENT** 1. The Claimant instituted this claim vide a Statement of Claim dated 4th March 2024 and seeks prayers against the Respondent: 2. *A declaration that the Respondent constructively dismissed the Claimant,* 3. *Damages for constructive dismissal;* 4. *General damages;* 5. *Terminal dues in the sum of Kshs. 11,031,160.50;* 6. *Costs of this suit;* 7. *Interest at court’s rate on b, c and d above;* 8. *Certificate of Service; and* 9. *Any other remedy that this Honourable court may deem fit to award.* **Claimant’s Case** 1. The Claimant avers that he was engaged by the Respondent as Chief Security Officer in the administration vide a letter dated 22nd December 2009, with effect from 1st January 2009. 2. He avers that on account of his satisfactory and excellent performance, the contract was subsequently renewed on several occasions on similar and better terms, the last renewal being dated 14th September 2022, effective 1st January 2023 to 31st December 2024. 3. The Claimant avers that he served the Respondent actively and faithfully from 22nd December 2009 through to 11th December 2023, distinguishing himself professionally in the security and intelligence sector without blemish. 4. The Claimant avers that on 11th December 2023, the Respondent issued him a purported interdiction letter, thereby unlawfully and unfairly terminating his employment in a manner that was predetermined. It stated: *“During the period of your interdiction, which shall start with IMMEDIATE EFFECT from the date of this letter, you shall receive half of your basic salary and this shall not include your house allowance and medical allowance.* *Please note that the handing over shall be conducted in the presence of the undersigned to the Security Officer that will be designated to perform the duties of the Chief Security Officer.* *You will be required to report personally and sign at the Office of the Director, Human Resource Services every MONDAY at 8.00am pending further disciplinary action.”* 1. The Claimant avers that he was greatly aggrieved by the harsh conditions contained in the interdiction letter and, through his advocates, tendered his resignation vide a letter dated 13th December 2023, which stated: “*As a result of your letter herein, our client has suffered losses including but not limited to constructive dismissal from his employment and he is not in a position to work with you in this toxic environment as a result of this kind of lack and style of leadership from yourself.”* 2. He avers that his resignation was due to constructive dismissal meted out against him by the Respondent. As a result, the Respondent owes him terminal dues totaling Kshs.11,031,160.50 and a certificate of service. 3. The Claimant avers that despite demand and notice of intention to sue made on 18th January 2024, the Respondent has refused, failed and/or neglected to admit liability or settle his claim. 4. It is the Claimant’s case that there is no other suit pending between the parties over the same subject matter, and that this Court has jurisdiction to hear and determine the matter. **Respondent’s Case** 1. In opposition to the Claim, the Respondent filed a Statement of Defence dated 8th May 2024. 2. The Respondent avers that the Claimant was engaged as Chief Security Officer in the administration, but denies that his performance was satisfactory and excellent up to the last contract renewal of 14th September 2022. It avers that the Claimant severally acted contrary to the terms of service and the Employment Act, 2007. 3. The Respondent particularizes the alleged misconduct as follows: that on 24th November 2023, the Claimant wrote a memorandum to the Finance Officer requesting payment for sixty-four (64) security guards from Canon Security Services Kenya Limited, knowing that the actual contracted number was fifty-eight (58). 4. It avers that payment for sixty-four (64) guards was in fact been perpetuated as far back as 27th July 2022, as evidenced by the processed Authority to Incur Expenditure of even date. A head-count conducted at a meeting with Canon Security Services Kenya Limited on 8th December 2023 established that only twenty-one (21) security personnel were actually serving the Respondent, with twenty (20) guards who had already left service nonetheless having been paid for the months of July to November 2023. 5. The Respondent further avers that, as per the testimony of one Mr. Ilalo Abdi Diba, the Claimant authorized unapproved structures on the Respondent's land at South B, Nairobi, resulting in unauthorized occupancy that posed a security risk and caused the Respondent financial loss through unauthorized utilization of electricity and water, as confirmed by a report dated 21st August 2023 and a response of 22nd August 2023. 6. It avers that on 17th November 2023 the Claimant neglected his duties and failed to act on reported thefts at the Respondent's main campus and hostels, per a report of 7th November 2023. 7. It avers that the Claimant was paid Kshs.179,000 for walk-through metal detectors that were never delivered. He surrendered various imprests for an analogue radio system, security apparatus, and radio dry cells without proof of the purchased items. 8. The Respondent further avers that vide a letter dated 27th January 2017, the Claimant was adversely mentioned by the National Police Service's Internal Affairs Unit as having engaged in fraudulent accounting, using the name of the Kenya Police as a conduit to siphon money from the institution. 9. It avers, finally, that the Claimant neglected, disregarded, failed and/or refused to abide by the terms of his interdiction requiring him to report on Mondays, as specified in the interdiction letter of 11th December 2023. 10. The Respondent avers that upon the foregoing matters being brought to its attention, it deemed it fit to place the Claimant under interdiction pending further investigation, before any show cause or disciplinary process would commence depending on the outcome. 11. It is the Respondent’s case that these incidents amount to negligence of duty and non-compliance with the Claimant's terms of service and the Code of Conduct and Ethics for Public Universities, 2023, as well as section 44(4)(c) of the Employment Act, and that pursuant to clause 12.2.1 of its Terms of Service, its principal is authorized to interdict an employee where there is good cause pending investigation. 12. The Respondent denies that it terminated the Claimant's services and contends that interdiction is a normal procedure applied to any employee where good cause exists to warrant investigation, and does not connote termination or constructive dismissal. 13. It asserts that the Claimant has never been issued with any termination letter, and that the act of interdicting him was consistent with the rationale of pausing his duties to allow investigation. 14. The Respondent states that rather than adhering to the terms of his interdiction, the Claimant served it with letters dated 13th and 15th December 2023 through his advocates, demanding withdrawal of the interdiction letter failing which he would sue for defamation, and indicating that he was no longer interested in working with the Respondent, 15. The Respondent denies that the Claimant ever issued it with a resignation letter and puts him to strict proof to the contrary. The Claimant's advocates served a further demand letter dated 18th January 2024 seeking payment of terminal dues and a certificate of service. 16. The Respondent denies the terminal dues claimed and puts the Claimant to strict proof thereof, stating that it could not accede to the Claimant's demands because he was interdicted procedurally in accordance with the terms of service, and is therefore not entitled to any terminal dues. 17. The Respondent admits that there is no other suit pending between the parties over the same subject matter, and admits that this Court has jurisdiction to hear and determine the matter. **Evidence in Court** 1. The Claimant (CW1) adopted his witness statement dated 4th March 2024 as his evidence in chief and produced his list of documents dated 4th March 2024 and supplementary list of documents dated 24th September 2024 as his exhibits. 2. During cross-examination, CW1 testified that he was interdicted before his junior vide a letter dated 11th December 2023 which he considered as constructive dismissal. 3. He testified that the interdiction letter required him to report to HRD every Monday morning which he found humiliating as his position was at the same level with HRD, thus, it was irregular. 4. CW1 testified that vide his demand notice dated 18th January 2024, he stated that he was not amenable to interdiction because she was on contract. 5. CW1 testified that he was served with a Notice to Show Cause (NTSC) on 7th March 2024 but this was after he had already filed this claim. Therefore, he did not attend any disciplinary hearing as the matter was already in court and both parties were aware of the same. 6. He testified that he did not receive the termination notice and did not appeal the matter. 7. The Respondent’s witness, Ruth Kirwa (RW1), she adopted her witness statement dated 15th October 2024 as her evidence in chief and produced the Respondent’s list of documents and supplementary list of documents as her exhibits. 8. Upon cross-examination, RW1 testified that before 11th December 2023, the Claimant was not issued with a NTSC. 9. RW1 testified that the interdiction letter talk of failure to perform duties. He states that this was to be explained at a later date as the letter did not explain any particular action or inaction. 10. RW1 testified that the loss of property is enumerated in the NTSC wherein it was established that there was a loss of over 12 million. The Claimant had engaged security agents without any contract. 11. She testified that the Respondent have an investigation report but it has not been produced in Court. The investigation was conducted by the security office through the Ag Chief Security Officer. **Claimants’ Submissions** 1. The Claimant submitted on four issues: whether the Claimant was constructively dismissed from employment by the Respondent; whether the Respondent is in breach of the contract dated 22nd December, 2009 and the renewal of contract dated 14th September, 2022; whether the Claimant is entitled to damages and terminal dues in the matter, and the proper computation thereof; and whether the Claimant is entitled to costs. 2. On the first issue, the Claimant submitted that the Black's Law Dictionary (10th Edition) defines constructive dismissal as: *“An employer’s creation of working conditions that leave a particular employee or group of employees little or no choice but to resign, as by fundamentally changing the working conditions or terms of employment; an employer’s course of action that, being detrimental to an employee, leaves the employee almost no option but to quit.”* 3. It was submitted that the doctrine of constructive dismissal applies where an employer's conduct fundamentally breaches an express or implied term of the contract, signaling a clear intention no longer to be bound by it, thereby leaving the employee with no choice but to resign or exit. It is recognized as a form of unfair termination under section 45 of the Employment Act, anchored on the right to fair labour practices under Article 41(1) of the Constitution. 4. He further submitted that the doctrine was illustrated by Lord Denning MR in ***Western Excavating (ECC) Ltd v Sharp (1978) 2 WLR 344***, *“If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any further performance. If he does so, then he terminates the contract by reasons of the employer’s conduct. He is constructively dismissed. The employee is entitled in those circumstances to leave at the instant without giving any notice at all or, alternatively, he may give notice and say he is leaving at the end of the notice.”* 5. It was submitted that the Claimant was a qualified security professional of thirty-two (32) years' standing with the NIS and a further fifteen (15) years seconded to the Ministry of Foreign Affairs, responsible as Chief Security Officer for the safety of over 14,000 students, over 1,000 staff, and assets worth millions, reporting directly to the Vice-Chancellor whom he had briefed on the very morning of 11th December 2023, the day he was interdicted. 6. It was submitted that the particulars of the charge levelled against him, that he failed to perform his duties on unspecified dates in September, October and November 2023, leading to unquantified massive losses to property and assets, were vague, undated and unproven, 7. It is the Claimant’s submissions that his interdiction was a breach of his contract, with one year remaining, and the resulting environment was punitive and toxic. 8. The Claimant submitted that the locus classicus on constructive dismissal is the Court of Appeal decision in [***Coca Cola East & Central Africa Limited v Maria Kagai Ligaga [2015] eKLR***](https://new.kenyalaw.org/akn/ke/judgment/keca/2015/394/eng%402015-09-25)**,** which established the test and principles for ascertaining constructive dismissal as follows: *“The key element in the definition of constructive dismissal is that the employee must have been entitled or have the right to leave without notice because of the employer’s conduct. Entitled to leave has two interpretations which gives rise to the test to be applied. The first interpretation is that the employee could leave when the employer’s behavior towards him was so unreasonable that he could not be expected to stay - this is the unreasonable test. The second interpretation is that the employer’s conduct is so grave that it constituted a repudiatory breach of the contract of employment - this is the contractual test.”* 9. It is the Claimant’s submissions that for constructive dismissal to be construed, it is incumbent that the Claimant proves that the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, the breach must be fundamental as to be considered a repudiatory breach, the employee must immediately leave the employment with or without notice after the breach has taken place, otherwise the Court may find the breach waived. He argued that he acted with extreme celerity, not reporting to work and instructing his advocates to write within two days of the interdiction, thereby avoiding any waiver of the breach. 10. Relying on [***Lear Shighadi Sinoya v Avtech Systems Limited [2017] eKLR***](https://new.kenyalaw.org/akn/ke/judgment/keelrc/2017/347/eng%402017-06-29)**,** wherein it was held that the test for constructive dismissal requires identification of a breached contractual term and an assessment of whether that breach was sufficiently serious. The Claimant submitted that he met this test, having been called away from his morning briefing with the Vice-Chancellor and handed the interdiction letter in front of his subordinates at 11 a.m. 11. The Claimant argued that he was accused of negligence of duty leading to massive loss which no audit/ valuation report on the loss was produced and given to him nor before this Court; he was not given a memo or notice of the loss and it was big surprise having worked for 14 years with other vice chancellors yet the new one was just 2 months old at the institution. 12. It was submitted that requiring him to report weekly to Human Resource, despite being supervised by the Vice-Chancellor, was humiliating and undermined his dignity, rendering it impossible for him to continue working. He relied on [***Mwathi v Koko Networks Limited [2025] KEELRC 3478 (KLR)***](https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/3478/eng%402025-12-01), for the holding that subjecting an employee to a predetermined, malicious or sham disciplinary process constitutes a repudiatory breach of the implied duty of trust and confidence, entitling the employee to treat himself as constructively dismissed. 13. He submitted that during cross-examination, RW1 admitted that no notice was issued prior to the interdiction; that no acts of omission or commission were stated in the interdiction letter; that the value of the alleged massive loss was never stated; that no valuation or quantitative report was ever prepared for the disciplinary committee or filed in court; that no investigation report was filed; and that the disciplinary committee sat a day after the Response to the Claim was filed. 14. The Claimant submitted that the disciplinary trial was conducted in May 2024, after the suit was filed, and although the Respondent listed five witnesses, only one testified before the Respondent closed its case. He argued that this was malicious and evidenced a predetermined decision and personal vendetta creating a harsh working environment. Therefore, he is was fully justified in treating himself as constructively dismissed. 15. On the second issue, the Claimant submitted that the Respondent committed a multiple-pronged fundamental breach by publishing malicious and defamatory claims against a long-serving officer, and by unlawfully halving his contractual salary without a prior impartial hearing, which it was submitted constituted an economic squeeze meant to force an exit. He cited [***Joseph Ndung’u v Mastermind Tobacco (K) Ltd [2014] eKLR***](https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/1125/eng%402014-07-09), where the Court held that an employee cannot be kept on suspension indefinitely and that continued suspension amounts to constructive dismissal, awarding twelve months' compensation and one month's notice pay. 16. It was submitted that the interdiction letter's particulars of charge, quoted as alleging failure to perform duties *"on various dates in September, October and November, 2023... leading to massive losses to property and assets,"* did not specify the dates, the duties breached, or the massive losses to property and assets. 17. The Claimant submitted that he could not be kept on indefinite suspension, could not be kept on indefinite suspension, that he was condemned unheard, and that it was absurd for the Respondent, after entering appearance on 26th March 2024, to serve a backdated Notice to Show Cause dated 7th March 2024 on 22nd March 2024, followed by an invitation to a disciplinary committee on 30th April, 2024, minutes of a committee held on 9th May, 2024, and a termination letter dated 29th May, 2024; notwithstanding that the matter was already *sub judice* and that the Claimant was no longer an employee, having already resigned by the letter of 13th December, 2023. 18. It is the Claimant’s submission that the Respondent thereby breached the contracts, which had renewed his term "with effect from 1st January, 2023 up-to and until 31st December, 2024," by unlawfully terminating the same through the interdiction letter. 19. On damages and terminal dues, the Claimant submitted that under Section 49 of the Employment Act an employee who suffers unfair termination or constructive dismissal is entitled to reliefs redressing the economic injury suffered. He argued that he was on a fixed-term contract to 31st December 2024 and he had a legitimate expectation of earning his salary and benefits to the end of that term, and was accordingly entitled to the salary he would have earned for the remainder of the contract. 20. The Claimant submitted that the Claimant was never given prior notice or memo, an itemized list of the alleged lost assets, particulars of any investigation, or criminal charges to date. 21. On a last drawn gross monthly salary of Kshs. 277,863, it was submitted that the Claimant's terminal dues were computed as: unpaid half salary for December 2023, January 2024 and February 2024 at Kshs. 416,794.50; the remainder of the contract (13 months) at Kshs. 3,612,219; six months' pay in lieu of notice at Kshs. 1,667,178; damages for wrongful dismissal (12 months) at Kshs. 3,334,356; gratuity at 24 months x 30% at Kshs. 2,000,613; and a certificate of service, totalling Kshs. 11,031,160.50. 22. The Claimant submitted that the procedure did not conform to Sections 40 and 41 of the Employment Act, and reliance was placed on [***Mbukua v Water Services Trust Fund [2022] KEELRC 1209 (KLR)***](https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/1209/eng%402022-05-27), where the Court ordered payment of severance and compensation for unfair termination. It was submitted that RW1 while under cross-examination, admitted that the Claimant had never been paid any terminal dues, and that the Respondent offered no counter-computation to challenge the figures. 23. On costs, it was submitted that costs follow the event, and that Section 27 of the Civil Procedure Act grants the court full discretion over costs, a successful party not to be deprived of costs save for good reason. Reliance was placed on Kuloba's Judicial Hints on Civil Procedure (2nd Edition), for the proposition that costs are awarded at the court's discretion but must follow the event unless the court has good reason to order otherwise; he further relied on ***Cecilia Karuru Ngayu v Barclays Bank of Kenya & another [2016] eKLR***. It was submitted that the Claimant was forced into litigation by the Respondent's absolute refusal to address internal grievances or heed the Demand Notices dated 13th December 2023 and 18th January 2024, and was fully entitled to the costs of the suit. **Respondent’s Submissions** 1. The Respondent submitted on eight issues: whether the Claimant has proved, on a balance of probabilities, that he was constructively dismissed by the Respondent; whether the Claimant’s resignation was clear, unequivocal, and valid in law; whether the Respondent’s interdiction of the Claimant was lawful, procedurally fair, and in accordance with the Claimant’s terms of service; whether the Claimant lawfully submitted himself to the Respondent’s disciplinary process before rushing to court; whether the Respondent’s disciplinary process was conducted in accordance with the rules of natural justice and Section 41 of the Employment Act, 2007; whether the Claimant ever appealed his termination to the Respondent’s internal appeals body; whether the Claimant is entitled to any of the terminal dues and damages claimed in the sum of Kshs. 11,031,160.50; who bears the costs of this suit. 2. On the first issue, the Respondent submitted that although the Employment Act does not expressly define constructive dismissal, the Court of Appeal in [***Coca Cola East & Central Africa Limited v Maria Kagai Ligaga [2015] eKLR***](https://new.kenyalaw.org/akn/ke/judgment/keca/2015/394/eng%402015-09-25)adopted the contractual test set out in ***Western Excavating (ECC) Ltd. -v- Sharp [1978] ICR 222 or [1978] QB 761***, as follows:*“If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any further performance. If he does so, then he terminates the contract by reason of the employer’s conduct.”* 3. The Respondent submitted that the guiding principles for determining constructive dismissal from that case required, among other things: a fundamental or repudiatory breach going to the root of the contract, an objective test, a causal link between the breach and the resignation, and that the burden of proof lay on the employee. 4. It is the Respondent’s submission that the Claimant could not point to any word in the interdiction letter communicating termination. The letter, quoted as directing that during interdiction he would receive half salary and report weekly to the Director of Human Resource Services pending further disciplinary action, was a suspension pending investigation and not a termination letter. 5. Relying on [***Dzila v Kwale County Assembly Service Board & 6 others [2025] KESC 33 (KLR)***](https://new.kenyalaw.org/akn/ke/judgment/kesc/2025/33/eng%402025-05-23), where the Supreme Court held that administrative suspension pending investigation is a preliminary measure distinct from removal and does not by itself terminate the employment relationship. It was submitted that the Claimant's argument that the interdiction amounted to termination was therefore fundamentally flawed in law. 6. The Respondent further submitted that, applying the objective test in [***Coca Cola East & Central Africa Limited v Maria Kagai Ligaga [2015] eKLR***](https://new.kenyalaw.org/akn/ke/judgment/keca/2015/394/eng%402015-09-25), a reasonable employee interdicted for serious financial irregularities would not consider the environment so intolerable as to resign within two days. 7. It further cited [***Joseph Mumali Barasa v Otieno Odongo & Partners Consulting Engineering Limited [2019] KEELRC 882 (KLR)***](https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/882/eng%402019-09-20)for the proposition that the court must look at the conduct of the employer that led to the resignation; the Respondent submitted that a lawful interdiction letter was not such conduct. 8. It is the Respondent’s submission that the Claimant's subjective discomfort at being investigated by juniors was not, per [***Joyce Sang v Sumaria Industries Limited [2019] eKLR***](https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1973/eng%402019-03-22), a ground for constructive dismissal absent an objective repudiatory breach. 9. The Respondent submitted that the Claimant resigned only two days after interdiction, before any investigation, show-cause notice or hearing had taken place. Although ***Western Excavating*** required an employee to act promptly, the conduct complained of was not sufficiently serious to justify immediate resignation, such that the Claimant had jumped the gun. 10. It was submitted that the Claimant failed to discharge his burden of proving constructive dismissal, that the allegations of a toxic environment were baseless, and that he resigned prematurely without allowing the Respondent to complete its investigations. 11. On the second issue, the Respondent submitted that it never received a formal resignation letter, and that the letter of 13th December, 2023 was captioned a demand letter, not a resignation letter. The letter, quoted *"As a result of your letter herein, our client has suffered losses including but not limited to constructive dismissal from his employment and he is not in a position to work with you in this toxic environment…”* However, thesame letter simultaneously demanded withdrawal of the interdiction and threatened a defamation suit, which the Respondent argued is inconsistent with a claim of resignation. 12. It is the Respondent’s submission that a demand letter written amid a brewing dispute could not constitute valid resignation under Section 35 of the Employment Act. 13. Relying on [***Ochola v Devine Homes Resort Limited [2024] KEELRC 2247 (KLR)***](https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2247/eng%402024-09-23)for the principle that a resignation must be express, clear and unambiguous, and it was submitted that the Claimant could not now characterize the demand letter as a resignation to found his claim. 14. On the third issue, it was submitted that Clause 12.2.1 of the Respondent's Terms of Service, undisputedly signed by the Claimant, expressly authorized interdiction for good cause pending investigation. The requirement to report weekly to the Director of Human Resource Services, rather than the Vice Chancellor, was itself provided for under that clause and was applied uniformly to all interdicted employees regardless of seniority, as testified by the Respondent's witness, Ruth Kirwa. 15. On the adequacy of particulars at the interdiction stage, reliance was placed on [***Kenya Ports Authority v Andrew Ochieng Odongo [2017] KECA 25 (KLR)***](https://new.kenyalaw.org/akn/ke/judgment/keca/2017/25/eng%402017-05-25), where the Court of Appeal held that interdiction is a preliminary measure distinct from termination and that full particulars of charges may be furnished later, such as through a show-cause letter. 16. It was submitted that the Respondent's Notice to Show Cause dated 7th March 2024 duly furnished detailed particulars, including allegations of requesting payment for 64 security guards when only 21 were serving, authorizing unapproved structures on the Respondent's land, neglecting reported thefts, surrendering imprests without proof of purchase, and adverse mention by the National Police Service's Internal Affairs Unit regarding fraudulent accounting. It argued that the interdiction was lawful and the reporting requirement neither unreasonable nor discriminatory. 17. On the fourth issue, the Respondent submitted that the Claimant was invited to a disciplinary hearing on 9th May 2024 but failed to attend, citing the pendency of the suit, which it argued was not justifiable absent a court order staying the disciplinary process, none having been sought. It cited [***Agamu v Kenya Civil Avaitation Authority [2024] KEELRC 13250 (KLR)***](https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/13250/eng%402024-11-26), where the Court held that a pending suit does not strip an employer of its managerial authority to continue disciplinary proceedings, and that an employee must seek a stay or conservatory order rather than unilaterally refusing to attend. It maintained that the Claimant voluntarily boycotted the process and could not now complain of unfairness. 18. On the fifth issue, the Respondent submitted that Section 41(1) of the Employment Act, quoted as requiring the employer to explain the reasons for contemplated termination and to allow the employee to have a representative present, was complied with through the Notice to Show Cause and the invitation to the disciplinary hearing. The Claimant having chosen not to appear, could not complain of a violation of Section 41, relying again on ***Agamu***. 19. It submitted that the Disciplinary Committee met on 9th May 2024 in his absence and found him guilty of gross misconduct and negligence under Section 44 of the Employment Act read with Section 63 of the Universities Act, leading to his termination by letter dated 29th May 2024. 20. On the sixth issue, the Respondent submitted that the Claimant admitted under cross-examination that he never appealed the termination despite an internal appeal mechanism under the Respondent's Human Resource Policies. It cited [***Hassan v County Government of Wajir & another [2025] KEELRC 1120 (KLR)***](https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1120/eng%402025-04-08), where the Court struck out a claim for failure to exhaust internal remedies absent exceptional circumstances, and it was submitted that failure to exhaust internal remedies was fatal to the Claimant's claim. 21. On the seventh issue, the Respondent submitted that each head of the Claimant's claim was without basis: that the claim for unpaid half salary failed because he did not work after resigning on 13th December 2023; that the claim for the remainder of the contract was not automatic under Section 49 of the Employment Act, compensation being discretionary and capped at twelve months where unfair termination is proved, which it was submitted had not occurred; that the claim for six months' notice pay was unsustainable absent any contractual entitlement to six months' notice; that the claim for wrongful dismissal damages duplicated the remainder-of-contract claim; that the gratuity claim had no contractual foundation; and that the certificate of service was improperly listed with a monetary value, amounting to an abuse of process. 22. In support thereof, the Respondent cited [***Joseph Ndung’u v Mastermind Tobacco (K) Ltd [2014] eKLR***](https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/1125/eng%402014-07-09)for the proposition that compensation under Section 49(1)(c) is discretionary and reasonable, not automatic, and it was submitted that since no unfair termination was proved, the Claimant was entitled to nothing. 23. On costs, it was submitted that costs follow the event under Section 27 of the Civil Procedure Act, and reliance was placed on [***Jasbir Singh Rai & 3 others v Tarlochan Singh Rai & 4 others [2014] eKLR***](https://new.kenyalaw.org/akn/ke/judgment/kesc/2014/31/eng%402014-03-04)for the principle that costs, though discretionary, are ordinarily awarded to the successful party. The Claimant has failed in his claim and dragged the Respondent through a full trial at substantial cost, entitling the Respondent to its costs. 24. I have examined all the evidence and submissions of the parties herein. The claimant has averred that he was constructively dismissed by the respondents who interdicted him unfairly. He avers that he chose to resign upon being placed on interdiction. 25. From the evidence of the parties the claimant had served the respondent from 2009 December to December 2023 on various contracts. The last contract was effective January 2023 and was to end in December 2024 a year before its lapse. 26. The claimant has contended that the interdiction was gross and unfair and pushed him to resign hence his contention that he was constructively terminated. 27. I have looked at the interdiction letter served upon the claimant. The letter explained the reason for the interdiction. The interdiction was under section 12.2 of the respondent’s terms of service for Teaching, Senior Technical, Senior Library and Senior Administrative Staff and the Code of Conduct and Ethics from public universities, 2003 and subsequent requirements of the charter of technical University of Kenya 2013. 28. The interdiction was made pending further investigations into the alleged incidents and any other charges that may be proffered against him. 29. The claimant has averred that the interdiction was harsh and unfair and unlawful and was thus a termination of his employment. Despite the claimant indicating that the interdiction was unlawful, he has not pointed out under what provisions of the law and the respondents own internal processes it was against. Neither the claimant nor the respondents produced before this court any HR manual of the respondent that would be a reference document on whether or not the respondent followed its own processes or procedures. 30. An interdiction is indeed a disciplinary process and whether or not it is unfair or not would largely depend on the employment disciplinary processes put in place which has not been exhibited before this court. 31. After the claimant was placed on interdiction, he chose to resign without any evidence on the law and procedure that would aid this court determine that the interdiction was unfair. I find that I cannot fault the respondent for exercising their right to institute any disciplinary process on the face of any report of misconduct. The claimant chose to resign by himself and his contention that he was constructively dismissed on this account cannot stand. 32. The claimant has also sought to be paid his terminal dues. The claimant however failed to explain how he arrived at the terminal dues payable. He sought damages for unfair termination, salary for remainder of contract period which I find is not payable due to the reasons give above. 33. As concerns payment of gratuity, the claimant seeks to be paid salary for 24 months without laying any basis for it. This amount is also pleaded without any particulars nor has the claimant pointed out why he is entitled to the said prayer. 34. The claimant’s case as presented lacks clarity on facts and is not supported by any evidence to support the prayers sought. The claim cannot therefore stand and is thus dismissed with no order of costs. **Dated, Signed and Delivered virtually at Nairobi this 28th Day of July 2026.** **HELLEN WASILWA** **JUDGE**