https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2353

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT ELDORET** **CAUSE NO. E054 OF 2025** *(Before Hon. Lady Justice Maureen Onyango)* **DR. MOSES ELVIS OBURAH………………..…………... CLAIMANT** **VERSUS** **PROF. KUREMU TENGE MBS.......................1ST RESPONDENT** **PROF. WINSTONE NYANDIKO…………………2ND RESPONDENT** **PROF. SYVESTOR KIMAIYO………………….…3RD RESPONDENT** **AMPATH EXECUTIVE DIRECTOR(S)** **RESEARCH & CARE……………………………….4TH RESPONDENT** **CHAIRPERSON AMPATH** **DISCIPLINARY COMMITTEE……………………5TH RESPONDENT** **JUDGMENT** 1. The 1st Respondent is described in the Claim as a member of the AMPATH Executive Sub-Committee who was responsible for approving the Sub-Committee’s findings and executing the Claimant’s letter of termination. 2. The 2nd Respondent is described as the Executive Director–Research, who was involved in the oversight and decision-making process that culminated in the termination of the Claimant’s employment. 3. The 3rd Respondent is described as the Executive Director–Care, who was similarly involved in the oversight and decision-making process leading to the termination of the Claimant’s employment. 4. The 4th Respondent is described as the Executive Director–Research, who was involved in the oversight and decision-making relating to the Claimant’s employment. 5. The 6th Respondent, acting through its Disciplinary Committee and Chairperson, is stated to have been responsible for conducting the disciplinary proceedings against the Claimant, which culminated in the termination of his employment. **The Claimant’s case** 1. Vide a Statement of Claim dated 12th September 2025, the Claimant challenged the termination of his employment alleging that it was unlawful, procedurally unfair and substantively unjustified. 2. The Claimant averred that he was employed by the 3rd and 4th Respondents as a Pharmacist stationed in Eldoret from 2017. He maintained that he served the Respondents without receiving any notice to show cause, disciplinary sanction or warning until his employment was terminated on 2nd May 2025. 3. The Claimant contended that the 1st and 5th Respondents, in their capacities as Principal and Chairperson of the AMPATH Executive Sub-Committee, respectively, signed and approved his letter of termination without just cause and without ensuring that he had been accorded a fair process. 4. He further averred that the 2nd, 3rd and 4th Respondents suspended him vide a letter dated 8th November 2024 without first affording him an opportunity to respond to the allegations against him, thereby condemning him unheard in violation of the principles of natural justice. 5. The Claimant alleged that the 6th Respondent, acting through its Disciplinary Committee and Chairperson, conducted the disciplinary proceedings in violation of the rules of natural justice and section 41 of the Employment Act. In particular, he asserted that he was not furnished with sufficient particulars of the allegations in advance, given adequate time to prepare his defence or permitted to be represented at the hearing. He further alleged that the Committee relied upon unsubstantiated and malicious allegations of conflict of interest and misappropriation of drugs. 6. The Claimant stated that, following the termination of his employment, he was invited to an appeal hearing held on 22nd July 2025 and despite the representations made in his appeal, the Respondents upheld the termination and informed him on 1st August 2025 that the decision was final. 7. The Claimant maintained that the Respondents did not establish any valid, fair or justifiable reason for terminating his employment as required under section 43 of the Employment Act. 8. He further contended that the Respondents failed to comply with section 41 of the Employment Act and the requirements of natural justice and procedural fairness by denying him a proper opportunity to be heard and to defend himself. 9. He further averred that the Respondents failed and refused to pay his lawful terminal dues contrary to sections 35, 36 and 49 of the Employment Act. 10. The Claimant therefore sought the following reliefs: 11. A declaration that the termination of his employment on account that he failed to declare a conflict of interest , that he engaged in exploiting patients and misappropriation of drugs was unlawful, unprocedural and unfair and in breach of the Employment Act and the Constitution of Kenya. 12. A certificate of service 13. Reinstatement to his position without loss of benefits 14. Payment of requisite compensation for unfair termination 15. Terminal dues as follows:- 16. One month’s salary in lieu of notice ……Kshs. 277,128 17. 12 months’ salary as compensation for unfair termination…………………….Kshs 3,325,536 ***The Respondents’ case*** 1. The Respondents opposed the Claim through a Reply to the Statement of Claim dated 17th November 2025. 2. The 2nd , 3rd , 4th , 5th and 6th Respondents denied that they had employed the Claimant in their individual capacities as alleged. They contended that they had been improperly joined to the proceedings in their individual capacities as they had acted solely in their official capacities. They further maintained that the Claimant had not sued any registered legal entity. According to them, the identity of the Claimant’s employer was expressly disclosed in his successive fixed-term contracts, which were renewed from time to time upon expiry. 3. The Respondents further averred that by a letter dated 8th November 2024, the Claimant was suspended pending disciplinary proceedings and that during the period of suspension, he continued to receive house allowance and retained access to the Moi University–AMPATH medical cover. 4. It is the Respondents’ case that the suspension letter also informed him that he would appear before the Disciplinary Committee on a date to be communicated to him. 5. The Respondents maintained that the Claimant was accorded a fair hearing and afforded several opportunities to defend himself before the decision to terminate his employment was made. In particular, they averred that, on 8th January 2025, the Claimant appeared before the seven-member AMPATH Staff Disciplinary and Advisory Committee. Upon considering the matter, the Committee found him culpable, recommended the termination of his employment and informed him of his right to appeal within 14 days. 6. That thereafter, the Claimant was heard on appeal before the AMPATH Executive Sub-Committee on 22nd July 2025 where he submitted written responses dated 29th January 2025 and 20th May 2025. According to the Respondents, the Claimant did not complain during those proceedings that he had been denied an opportunity to be heard or the right to be represented. 7. The Respondents therefore prayed that the Claim be dismissed with costs. ***The Evidence*** 1. At the hearing of the suit, the Claimant testified on his own behalf, while the Respondents called three witnesses in support of their case. 2. The Claimant testified as CW1 and adopted the witness statements he filed in court as his evidence in chief. He also relied on the bundle of documents he filed in support of his case. 3. It was the Claimant’s evidence that the termination of his employment on 2nd May 2025 was unfair and unjustified. He disputed the allegations levelled against him in the termination letter of the same date and challenged the findings contained in the audit report appearing at page 9 of the Respondents’ bundle of documents. 4. Regarding the first charge of failing to disclose a conflict of interest, the Claimant testified that he was a duly registered pharmacist. He maintained that the charge was untrue because his intention was to ensure that the patient received the required medication. He further stated that, throughout his employment, the Respondents had neither sensitised him on conflict of interest nor asked him to make a declaration concerning any possible conflict. 5. On the second charge of exploiting patients, the Claimant stated that he was not given an opportunity to question the complainants or challenge the audit report during the two disciplinary hearings. He testified that he had never met any of the complainants. 6. The Claimant stated that Hydroxyurea costs Kshs. 35 per capsule at Moi Teaching and Referral Hospital and between Kshs. 35 and Kshs. 60 per capsule at other pharmacies. He admitted that a patient was charged Kshs. 1,500 for the medication but denied that this amounted to exploitation. He explained that Hydroxyurea had been unavailable at the hospital from 14th August 2024 and that he had only assisted the patient to obtain the medication elsewhere. 7. The Claimant testified that he was suspended before being issued with a notice to show cause and was not given an opportunity to explain himself before the suspension. According to him, the Disciplinary Committee acknowledged during the hearing that he had not been issued with a notice to show cause. He maintained that he did not exploit the patient because the patient had merely asked him where else the medication could be obtained. 8. Regarding the charge of defrauding the hospital of 400 packets of Hydroxyurea, the Claimant maintained that the medication had been procured as a stopgap measure and supplied to the hospital on 25th July 2024. He stated that out of the 400 packets received, 250 were issued to the AMPATH Revolving Fund Pharmacy, 30 were transferred to Homa Bay County Referral Hospital and 120 were dispensed through the pharmacy. It was his testimony that payments for the medication dispensed at the pharmacy were made through a designated till number. 9. The Claimant testified that a total of Kshs. 456,558 was collected against an expected amount of Kshs. 225,000. He maintained that no medication or money was lost and that a detailed explanation had been provided to the programme lead. He stated that he had also sent an email explaining that weaknesses in the control and documentation systems could result in some medication not being properly recorded and increase the possibility of human error. 10. Referring to the audit report, the Claimant denied that 340,000 tablets had been issued to him personally. He stated that he had received 400 packets under the stopgap procurement arrangement. He further stated that the auditor had identified discrepancies involving medication distributed among different facilities, some of which were outside his control. He testified that he had never been charged with any criminal offence relating to the alleged loss of medication. 11. The Claimant also maintained that he was not accorded a fair hearing because he was not given an opportunity to read the minutes of the proceedings or question the witnesses whose complaints were relied upon by the Disciplinary Committee. 12. The Claimant further testified about concerns relating to the quality and authenticity of Hydroxyurea supplied to the Respondents. He stated that he had been asked to examine a certificate of analysis relating to Hydroxyurea during a procurement process. According to him, an earlier procurement had been undertaken in 2022 where the supplier who was expected to deliver 1,000 units of medication supplied only half of the required quantity with different descriptions. 13. The Claimant stated that nine patients reacted adversely to the medication, leading the Respondents to introduce pharmacovigilance measures. He explained that safeguards were required to monitor the quality and safety of the medication. In the Claimant’s view, the Respondents could have adopted the system used by the hospital, under which medication was obtained through a request rather than a tender process. 14. The Claimant testified that, when the supplier presented a sample for examination, he requested two documents being a certificate of analysis and proof that the medication had been registered. He averred that the supplier did not provide the requested documents and that the matter was discussed in several meetings involving the Principal Investigator where it was agreed that the regulator would be asked to confirm the origin and authenticity of the medication. 15. According to the Claimant, the Pharmacy and Poisons Board later confirmed that the medication had not been registered. He averred that its use was therefore stopped, although it remained in stock. It was his testimony that his disciplinary problems began because he questioned the origin and authenticity of the medication. 16. The Claimant urged the Court to grant the reliefs sought in his Statement of Claim. 17. During cross-examination, the Claimant stated that his letter of appointment bore three logos, those of Moi University, Moi Teaching and Referral Hospital and AMPATH. He stated that his employment was contractual and that renewal of his contract was subject to appraisal. He stated that his last contract commenced on 1st July 2024 and was due to end on 31st August 2025. 18. The Claimant denied operating a private pharmacy but admitted that he knew Monabu Enterprises having assisted it in its registration. He stated that the enterprise had a principal proprietor and that his own name also appeared in its registration records. He admitted that, on 25th October 2024, he did not disclose his association with Monabu Enterprises as a possible conflict of interest. He maintained, however, that he did not own the enterprise. 19. Regarding the allegation that he referred patients to Monabu Enterprises, the Claimant stated that the patient had visited AMPATH to find out whether Hydroxyurea was available. He initially referred the patient to Eldobase Pharmacy. He later referred the patient to Monabu Enterprises because its medication was cheaper than that sold by other pharmacies. 20. The Claimant stated that he did not participate in the procurement or management of Monabu Enterprises. He also averred that the medication was delivered to the patient by a rider. He maintained that he did not personally direct the patient to Monabu Enterprises and that the payment details were communicated to the patient’s caregiver over the telephone by one Vincent Saina of Monabu Enterprises. He further stated that private practice was permitted among doctors. 21. The Claimant admitted that he was invited to and attended the disciplinary hearings. He stated that he was informed that he could bring a witness and was afforded an opportunity to respond to the allegations against him. He however maintained that he was not given the reasons for the termination of his employment. He also stated that he had never been issued with the Respondents’ Human Resource Manual or sensitised on its provisions relating to conflicts of interest. 22. The Claimant reiterated that Hydroxyurea was unavailable at the hospital when he referred the patient to another pharmacy. He stated that the medication was last dispensed at the hospital on 14th August 2024 and was unavailable until 30th October 2024. He further stated that the last consignment procured as a stopgap measure had been delivered on 25th July 2024 and that other medication remained in the store awaiting the necessary documentation. He testified that the medication was placed in quarantine after it was rejected on 2nd September 2024 and that its use was only authorised on 8th November 2024. 23. On re-examination, the Claimant explained that he sued the four Respondents because AMPATH was an umbrella organisation working with several entities. He described it as a consortium that supported research in partnership with Moi Teaching and Referral Hospital, Moi University and various donors from the United States of America. 24. The Claimant denied operating Monabu Enterprises. He explained that his name appeared in the CR12 solely for licensing purposes because one of the directors of the pharmacy was required to be a qualified pharmacist. He maintained that he was not the principal proprietor and did not participate in the management of the pharmacy. 25. The Claimant further denied that he had failed to discharge his duties impartially, as alleged in the suspension letter. He stated that he advised the patient to purchase the medication from Monabu Enterprises because it was unavailable at the hospital and was more expensive at other pharmacies. 26. Regarding the alleged misappropriation of 10,128 tablets, the Claimant stated that his written response contained a full account of the medication, together with the M-Pesa statements relating to the 400 packets. 27. For the Respondents, Dr Samson Ndege testified as RW1 and introduced himself as the Chairman of the 6th Respondent. He adopted his witness statement dated 18th November 2025 as his evidence in chief and relied on the documents filed by the Respondents. 28. RW1 testified that the Claimant was suspended by a letter dated 8th November 2024 following allegations that he had failed to disclose a conflict of interest, referred patients to Monabu Enterprises, a pharmacy with which he was associated and caused patients to purchase medication from that pharmacy. 29. According to RW1, the first incident occurred on 1st October 2024, when the husband of one of the patients paid Kshs. 1,100 to Monabu Enterprises for medication and the second incident occurred on 25th October 2024, when the mother of a patient paid kshs. 1,100 through a pay bill number belonging to Monabu Enterprises. 30. RW1 stated that the Claimant was invited to and attended a disciplinary hearing where he admitted referring a patient to Monabu Enterprises and acknowledged that he was a director of the enterprise. RW1 averred that the Claimant had explained that he assisted the patient to obtain medication from Monabu Enterprises because the medication was unavailable at the hospital. 31. RW1 further testified that after the hearing, the Claimant was requested to submit an additional written statement and that in that statement, he explained the circumstances in which he had attended to the patient’s caregiver and admitted that he was a passive partner in Monabu Enterprises. 32. Regarding the alleged loss of medication, RW1 testified that the Claimant acknowledged the existence of discrepancies in the pharmacy records but attributed them to omissions by interns who assisted at the pharmacy. The Respondents’ witness averred that the available records did not establish that all the medication had been dispensed and the unaccounted-for medication ought to have remained in stock. 33. During cross-examination, RW1 stated that the suspension letter informed the Claimant that he would be required to appear before the Disciplinary Committee. He admitted that the complainants and other witnesses were not called to testify during the disciplinary hearing. Instead, the Committee relied on the audit report and the Claimant’s statements. He stated that the Claimant did not request the Committee to call the witnesses. RW1 further admitted that the Claimant was not given an opportunity to question the complainants or other witnesses, explaining that the Committee considered this unnecessary because the Claimant had admitted the allegations against him. 34. It was his evidence that although the Claimant stated that Hydroxyurea was unavailable at the hospital, no evidence was presented to establish the alleged shortage or justify the referral of patients to Monabu Enterprises. 35. On re-examination, RW1 stated that the decision to terminate the Claimant’s employment was made after he had been afforded an opportunity to be heard and a further opportunity to appeal. 36. RW1 maintained that, since the Claimant was responsible for receiving and dispensing medication at the pharmacy, he was required to keep proper records of all medication received and dispensed. According to RW1, maintaining proper records formed part of the Claimant’s duties. 37. It was RW1’s evidence that the security officer’s report showed that Hydroxyurea was available at the hospital at the relevant time and also, that the audit report showed that not all the medication received had been dispensed. 38. Patrick Kipkemboi Kirui testified as RW2 and introduced himself as the Director of Audit and Risk Services. He adopted his witness statement dated 18th November 2025 as his evidence in chief. 39. RW2 testified that AMPATH was a project involving Moi Teaching and Referral Hospital, Moi University and Indiana University. He stated that he conducted a special audit of AMPATH at the request of the Chief Executive Officer of Moi Teaching and Referral Hospital. 40. According to RW2, the findings of the audit agreed with the findings of the Disciplinary Committee. The audit found that the Claimant had failed to disclose a conflict of interest. RW2 stated that the Claimant operated a pharmacy with his wife, referred patients to that pharmacy and charged them very high prices for medication. He averred that the audit also found that some medication could not be accounted for. 41. He testified that the audit did not find any problem with the quality of the Hydroxyurea supplied to the hospital and did not find that Hydroxyurea was out of stock at the hospital during the period in question. 42. RW2 stated that the hospital had received a total of 340,000 Hydroxyurea tablets during the period covered by the audit. Of these, 111,559 tablets were issued to patients, 90,000 tablets were supplied to the Eldoret Revolving Fund Pharmacy, 83,000 tablets were distributed to Homa Bay County Referral Hospital and 45,227 tablets remained in stock. 43. According to RW2, there was a difference of 10,148 tablets which could not be accounted for. He valued the missing tablets at Kshs. 151,920, based on a price of Kshs. 15 per tablet. 44. During cross-examination, RW2 stated that the special audit revealed differences between the medication received, distributed and remaining in stock. He explained that the discrepancies arose from weaknesses in the Respondents’ internal control systems. He admitted that no criminal charges had been brought against the Claimant in relation to the alleged loss of medication. 45. On re-examination, RW2 stated that, as the pharmacist in charge, the Claimant was responsible for reconciling the medication received, dispensed, transferred and remaining in stock. He maintained that the Claimant should not have referred patients to a pharmacy with which he was associated, particularly because Hydroxyurea was available at the hospital pharmacy. 46. Mr. Wilson Nyandiko, the 2nd Respondent, testified as RW3. He adopted his witness statements dated 17th November 2025 and 16th January 2026 as his evidence in chief. 47. RW3 testified that he participated in the disciplinary process as a member of the Appeals Committee. RW3 stated that, in considering the appeal, the Committee reviewed the Claimant’s earlier statements, the audit report and the record of the proceedings before the Disciplinary Committee. He maintained that the Claimant was taken through a fair disciplinary process and was given several opportunities to explain himself. His appearance before the Appeals Committee gave him a further opportunity to challenge the decision to terminate his employment. 48. According to RW3, the Appeals Committee found that there were discrepancies in the pharmacy stock records which had exposed the Respondents to possible financial loss. The Committee considered the Claimant’s conduct to amount to fraud and misconduct and therefore upheld the decision to terminate his employment. 49. RW3 denied the Claimant’s claim that Hydroxyurea was unavailable at the hospital during the relevant period. He stated that the procurement and pharmacy records showed that a supply of Hydroxyurea had been received on 24th July 2024 and that some of that medication remained available during the period in question. 50. During cross-examination, RW3 stated that the medication supplied between August and November was different because Riborea was supplied later. He also stated that the Claimant’s contract of employment did not contain a specific provision dealing with conflicts of interest 51. At the close of the Respondents’ case, the parties were directed to file written submissions. The Claimant’s submissions are dated 18th May 2026, while the Respondents’ submissions are dated 2nd June 2026. **Determination** 1. I have considered the pleadings, the evidence presented by the parties and their respective submissions. In my view, the issues that fall for this court’s determination are: - 2. Whether the Respondents were properly sued, 3. Whether the Respondents had a valid and fair reason for terminating the Claimant, 4. Whether due process was followed in terminating the Claimant’s employment, 5. Whether the Claimant is entitled to the reliefs sought. *Whether the Respondents were properly sued* 1. The Respondents 2nd, 3rd, 4th, 5th and 6th Respondents have maintained that they were wrongly sued in their individual capacities because they did not personally employ the Claimant. They maintained that they acted only in their official capacities and that the Claimant failed to sue the legal entity identified as his employer in his successive contracts of employment. 2. The Claimant stated that his letter of appointment bore the logos of Moi University, Moi Teaching and Referral Hospital and AMPATH. On re-examination, he explained that he sued the Respondents because AMPATH was an umbrella organisation comprising Moi University, Moi Teaching and Referral Hospital and other local and international partners. I have looked at the Claimant’s letter of appointment and it has only the words, “ampath”. It is not indicated whether it is a limited liability or the nature of its registration. 3. RW1 identified Moi University and Moi Teaching and Referral Hospital as the Claimant’s employers, while RW2 described AMPATH as a project involving Moi Teaching and Referral Hospital, Moi University and Indiana University. The evidence therefore indicates that AMPATH is a programme or consortium rather than a separate registered legal entity. 4. Section 2 of the Employment Act defines an employer as any person, public body, firm, corporation or company that has entered into a contract of service to employ an individual. The definition also includes an agent, foreman, manager or factor acting on behalf of such a person or entity. 5. The evidence shows that the Respondents were directly involved in managing the Claimant’s employment and disciplinary process. They participated in his suspension, the disciplinary proceedings, the decision to terminate his employment and the determination of his appeal. They were therefore not strangers to the events giving rise to the Claim. 6. Although it would have been preferable for the Claimant to join the entity or entities named as his employer in the contract of employment, the Respondents acted as agents or managers of the employer. They therefore fall within the wider definition of an employer under section 2 of the Employment Act. 7. In the circumstances, I find that the Respondents were not improperly sued merely because they acted in their official capacities. Their objection to the Claim on that ground consequently fails. *Whether the Respondents had valid and fair reasons for terminating the Claimant’s employment* 1. Sections 43 and 45 of the Employment Act require an employer to prove the reason or reasons for terminating an employee’s employment and to demonstrate that those reasons were valid and fair. The reasons must relate to the employee’s conduct, capacity or compatibility, or arise from the employer’s operational requirements. 2. Under section 43(2) of the Act, the Court is required to consider the reason which the employer genuinely believed to exist at the time of termination and which caused it to terminate the employee’s services. 3. The Claimant’s letter of termination dated 2nd May 2025 identified three grounds for the termination of his employment, namely: - 4. Failure to disclose a conflict of interest 5. Exploitation of patients 6. Misappropriation or failure to account for Hydroxyurea. 7. On the first ground, the Claimant in his testimony admitted that he is registered as one of the directors of Monabu Enterprises. He explained that his name appeared in the CR12 because it is a statutory requirement that one of the directors of a pharmacy be a qualified pharmacist. He maintained that he was not the principal proprietor and did not take part in the day to day management of the pharmacy. 8. He stated that he referred the patient to Monabu after finding out the cost of Hydroxyurea tablets at Eldo Base and Eldoret Hospital and that the patient requested him to refer him to a place where the drug was the cheapest, which happened to be Monabu. 9. During cross-examination, the Claimant reiterated that he was affiliated with Monabu Enterprises and that he had not disclosed that association as a possible conflict of interest. He also admitted referring a patient to the pharmacy and asking the patient to pay Kshs. 1,500 for medication. He testified that it was part of his role to ensure patients got the medication they required and this is what he did in the case under reference. He stated that he was never given an opportunity to declare conflict of interest. Further, that he was never sensitized about the same in the 7 years that he worked for the Respondent. 10. The Claimant further explained that private practice was permitted among doctors. 11. RW1 testified that the reason the Claimant was charged with conflict of interest was because he did not prove that there were no drugs in the hospital pharmacy at that time, even though the Claimant stated that the drugs were last dispensed in the hospital pharmacy on 14th August, 2024 and were not replenished until 31st October, 2024. This evidence was not controverted by the Respondent. 12. Further, RW3 admitted during cross examination that the Claimant’s contract did not contain a special provision dealing with conflict of interest. Further, RW3 admitted that the Claimant’s contract of employment did not contain a specific provision dealing with conflicts of interest. 13. The Claimant also testified that he had not been issued with the Human Resource Manual or sensitized on its provisions relating to conflicts of interest. The Claimant further testified that the letter of 14. I therefore find that the Respondents did not prove, on a balance of probabilities, that the Claimant was guilty of conflict of interest or that he was required to disclose conflict of interest for being a co-owner of Monabu Pharmacy. I however find that he out to have disclosed to the patients that while referring patients he ought to have disclosed to them that he has an interest in the pharmacy as failing to do so constituted a conflict of interest in terms of the Conflict of Interest Act. Considering the nature of his duties as a pharmacist and the trust placed in him by the employer and the patients, this constituted a valid and fair reason for disciplinary action. 15. On the second ground, the Respondents alleged that the Claimant exploited patients by referring them to Monabu Enterprises and charging them excessive prices for Hydroxyurea. RW1 referred to two payments of Kshs. 1,100 made to Monabu Enterprises on 1st and 25th October 2024. The Claimant, on the other hand, acknowledged that a patient was charged Kshs. 1,500 for the medication. However, the complainants were not called to testify before the Disciplinary Committee or this Court. There was therefore no direct evidence explaining the quantity of medication purchased, the price quoted to the patients or the circumstances in which the payments were made. The Respondents also did not provide evidence to show that the patients were charged an excessive price or deliberately exploited. 16. I therefore find that the allegation that the Claimant exploited patients was not proved on a balance of probabilities. 17. On the third ground of misappropriation of Hydroxyurea, the Respondents in support of this allegation relied mainly on the audit report. RW2 testified that a total of 340,000 tablets was received. Of these, 111,559 tablets were issued to patients, 90,000 were supplied to the Eldoret Revolving Fund Pharmacy, 83,000 were transferred to Homa Bay County Referral Hospital and 45,227 remained in stock. He stated that 10,148 tablets, valued at Kshs. 151,920, could not be accounted for. 18. The figures presented in evidence did not agree. The quantities identified by RW2 add up to 329,786 tablets, leaving a difference of 10,214 tablets rather than 10,148 tablets. Further, at Kshs. 15 per tablet, the stated value of Kshs. 151,920 represents 10,128 tablets. 19. The Claimant maintained that the 400 packets received under the stopgap arrangement were fully accounted for. He stated that 250 packets were issued to the AMPATH Revolving Fund Pharmacy, 30 were transferred to Homa Bay County Referral Hospital and 120 were dispensed through the pharmacy. He further referred to M-Pesa statements and stated that Kshs. 456,558 was collected against an expected amount of KShs. 225,000. 20. The audit evidence established that there were weaknesses in record-keeping and an unexplained difference in the stock. The Claimant testified that he had brought the issue of weaknesses in the systems which made I agree with the Respondents that as the pharmacist in charge, the Claimant was responsible for ensuring that proper records were maintained and that all medication received, dispensed, transferred or retained in stock was properly accounted for. However, although the audit report established shortcomings in the management and reconciliation of the pharmacy records, it did not prove that the Claimant personally misappropriated the Hydroxyurea. 21. The fact that the Respondents did not prove all three grounds set out in the termination letter does not necessarily render the termination unfair. It is sufficient if at least one of the reasons relied upon by the employer is proved and is sufficiently serious to justify the termination. 22. The Claimant’s failure to disclose his association with Monabu Enterprises, together with his referral of patients to that pharmacy, placed him in a clear conflict of interest. This was a serious matter because he occupied a position of trust and advised vulnerable patients on where and how to obtain medication. 23. In the circumstances, I find that the undisclosed conflict of interest constituted a valid and fair reason related to the Claimant’s conduct. The Respondents therefore discharged the burden imposed upon them under sections 43 and 45 of the Employment Act. *Whether due process was followed in terminating the Claimant’s employment* 1. Section 41 of the Employment Section 41 of the Employment Act provides as follows: - *“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.”* 1. The Claimant complained that he was suspended on 8th November 2024 before being issued with a notice to show cause or being given an opportunity to explain himself. The Respondents maintained that the suspension letter informed him of the allegations against him and notified him that he would be required to appear before the Disciplinary Committee on a date to be communicated. 2. Suspension pending disciplinary proceedings is ordinarily a temporary measure intended to allow an employer to investigate allegations against an employee. It does not, by itself, amount to a finding that the employee is guilty. The relevant question is whether the Claimant was informed of the allegations and afforded a fair opportunity to respond before the final decision was made. 3. The evidence shows that the Claimant appeared before the AMPATH Staff Disciplinary and Advisory Committee on 8th January 2025. During cross-examination, he admitted that he had been invited to the hearing, informed that he could bring a witness and afforded an opportunity to respond to the allegations against him. 4. From the evidence on record, it is clear that after the hearing, the Claimant was asked to provide a further written statement, which he submitted on 29thJanuary 2025. Following the termination of his employment, he lodged an appeal dated 20th May 2025 and appeared before the Appeals Committee on 22nd July 2025. 5. The Claimant was therefore afforded several opportunities to present his case: first, before the Disciplinary Committee; secondly, through his further written response; and thirdly, during the appeal proceedings. 6. The Claimant complained that he was not allowed to read the minutes of the proceedings, question the complainants or challenge the audit report. RW1 admitted that the complainants and other witnesses were not called before the Disciplinary Committee. He further admitted that the Claimant was not afforded an opportunity to question them. According to RW1, the Committee relied on the investigation and audit reports together with the Claimant’s own statements. 7. An internal disciplinary hearing is not required to follow all the procedures applicable to a trial before a court. The failure to call witnesses for questioning does not automatically make a disciplinary process unfair. The Court must consider whether the employee understood the allegations and was given a genuine opportunity to respond to the material relied upon by the employer. 8. The Claimant herein admitted the main facts forming the basis of the conflict of interest allegation. He admitted that he was associated with Monabu Enterprises, that his name appeared in its registration records, that he had not disclosed that association and that he referred a patient to the pharmacy. The absence of the complainants did not therefore prevent him from answering that allegation. 9. The absence of the complainants was, however, relevant to the separate allegation that the Claimant had exploited patients by charging them excessive prices. As already found, the Respondents failed to prove that allegation because the evidence did not clearly establish the amount charged, the quantity of medication supplied or the circumstances in which the payments were made. Further, the Respondents did not demonstrate that the price of the drugs in question at Monabu Enterprises were higher than in other pharmacies nearer to the Respondents pharmacy and that the referral was to the disadvantage of the patients. 10. Considering the disciplinary process as a whole, I find that the Claimant was informed of the allegations, given adequate time to prepare and afforded several opportunities to respond. The Respondents therefore substantially complied with section 41 of the Employment Act. 11. Having found that the Respondents had a valid and fair reason for terminating the Claimant’s employment and that they followed a fair procedure, I find that the termination was substantively and procedurally fair within the meaning of sections 41, 43 and 45 of the Employment Act. 12. In the result, the Court makes the following orders: 13. The Claim is dismissed, save for the prayer for a certificate of service 14. The Claimant’s employer shall issue him with a certificate of service in accordance with section 51 of the Employment Act 15. Each party shall bear its own costs. 16. Orders accordingly **DATED, SIGNED AND VIRTUALLY AT ELDORET** **ON THIS 30TH DAY OF JULY, 2026** **MAUREEN ONYANGO** **JUDGE**