https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1919

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT & LABOUR RELATIONS COURT AT NAIROBI** **CAUSE NO. E709 OF 2023.** **DAVID IGNATIUS ODEMBO……….…….……………...………CLAIMANT** **VERSUS** **SAPCONE TURKANA PEOPLE ORGANIZATION………...RESPONDENT** **JUDGMENT** **Introduction** 1. In a Memorandum of Claim dated 21st August, 2023 and filed on 1st September, 2023, the Claimant sued the Respondent, alleging unfair termination of his contract and seeks the following remedies: - 2. A declaration that the Respondent did not follow fair procedure as prescribed in the Employment Act, No. 11 of 2007, in terminating the Claimant's employment. 3. A declaration that the termination of the Claimant’s employment by the Respondent was unfair and unlawful. 4. A declaration that the Claimant's fundamental and basic rights of employment under the provisions of the Employment Act No 11 of 2007 and the Constitution have been infringed and trampled upon by the Respondent with impunity. 5. Damages in the sum of Kshs.1,838,367 for unfair termination. 6. Cost of the suit. 7. Interests 8. The Respondent entered an appearance and subsequently filed a Response to the Claimant’s claim dated 13th October, 2023, denying the Claimant’s Claim. 9. The Claimant’s Case was heard on 1st July, 2025, when the Claimant testified in support of his case, adopted his witness statement, and produced his list and bundle of documents as exhibits in the matter, which were admitted as the Claimant’s exhibits no. 1-10. 10. The Respondent’s case was subsequently heard on 17th December, 2025, when David Enyinyi and Ruth Arii Ligoi testified in support of the Respondent’s case. They equally adopted their witness statements dated 21st November, 2025, as their evidence in chief. 11. Submissions were filed for both parties and have been duly considered. **The Claimant’s Case** 1. The Claimant’s case is that he, at all material times, was employed by the Respondent as a Livelihood Officer. He avers that he was employed by the Respondent as a Livelihood Officer under a one-year contract commencing on or about 1st July 2022, subject to a three-month probation period and confirmation upon satisfactory completion. 1. The Claimant contends that he diligently performed his duties until 18th August 2022, when his employment was unlawfully terminated through a communication made to his wife, without any reasons being provided for the termination. 2. The Claimant further states that the Respondent terminated his employment without issuing a notice of the intended termination, providing reasons for the dismissal, or according him a hearing in the presence of a fellow employee or union representative of his choice. 3. It is his case that the Respondent unlawfully deducted **Kshs.43,167** from his July 2022 salary as PAYE, despite his tax-exempt status arising from his disability, and failed to remit the deducted amount to the relevant tax authority. 4. The Claimant avers that at the time of the termination of his employment, he was earning a gross monthly salary of Kshs.132,000. He contends that his claim against the Respondent is a total of Kshs.1,838,367, comprising Kshs.1,584,000 being compensation equivalent to twelve months' salary for the unlawful termination, Kshs.43,167 being PAYE deducted from his salary but allegedly not remitted, Kshs.79,200 as unpaid salary for the days worked in August 2022, and Kshs.132,000 being one month's salary in lieu of notice. 1. The Claimant, on examination in chief, told the court that he suffers from bipolar disorder and has registered as a person with disability and had submitted his registration card to the Respondent. 2. It is his position that he suffered a relapse on 18th August, 2022, due to keeping his medication at the wrong temperature in Lodwar, where temperatures are beyond 34 degrees Celsius. He maintains that his registration card and the tax exemption waiver were evidence that the employer/Respondent was aware of his case. 3. It is the Claimant’s case that he learned of his dismissal when he was discharged from the hospital, and that he could not communicate with the Respondent earlier since he was admitted to a mental hospital. 4. On cross-examination, the Claimant told the court that he did not inform the Respondent about the medication he was on and the required temperature. 5. The Claimant further confirmed that his contract was for 9 months from what the Respondent told him, since he did not have a formal employment contract. 6. It is his testimony that he did attempt to report to work, but the human resources person told him to wait to be called. He stated that he had no hospital record of his illness before court, and neither did he have a doctor’s statement. 7. The Claimant prays that the court allow his claim as drawn. **The Respondents’ Case** 1. The Respondent denies the claimant’s assertion that he was employed on 1st July 2022, maintaining that his employment commenced on 12th July 2022. It further denies the allegations of unlawful termination, asserting that the Claimant habitually reported to work while intoxicated and, on the material day, he arrived drunk and carrying empty alcohol bottles and a Maasai rungu, which he insisted on keeping on his office desk. 2. The Respondent contends that notifying the Claimant's wife of the dismissal was done out of caution, as it believed the Claimant's judgment was impaired. The Respondent, however, admits the allegations relating to the PAYE deduction, but maintains that the deduction was justified. 3. The Respondent denies that the Claimant earned a gross monthly salary of Kshs.132,000, asserting instead that his gross salary was Kshs.131,200. The Respondent further states that it responded to the Claimant's demand letter through his advocates, but denies the Claimant's computations and entitlement to the monetary claims and all the reliefs sought in the Memorandum of Claim. 4. The Respondent's witness states that in August 2022, following a field assignment, the Claimant reported to work carrying empty alcohol bottles, a bottle containing alcohol, a Maasai rungu, and a walking stick, and consumed alcohol while at his office desk. He avers that when questioned, the Claimant reportedly stated that he was acting on a doctor's instructions before becoming hostile and aggressive toward staff. The witness states that the Claimant left the office after staff intervened, prompting the Respondent to notify his wife out of concern. 5. The witness further avers that the Claimant thereafter absented himself from work without notifying his supervisor for approximately one and a half weeks, prompting the Respondent to conduct a search for him in Lodwar. According to the witness, the Claimant's wife later informed the Respondent that he had been found in Eldoret in a distressed state, was taken to the hospital for treatment, and subsequently remained at home due to ill health. The witness further states that in December 2022, the Claimant informed the Respondent that he would not return to work because of his health condition. 6. On cross-examination, the Respondent’s witness told the court that the Respondent had no knowledge of the Claimant’s mental illness. He avers that the Claimant was paid his July 2022 salary less statutory deductions, but did not know whether the Claimant had submitted his tax exemption certificate to the Respondent. 7. RW1 confirmed that the Claimant was terminated within 2 months of the probation period. 8. On her part, RW2 Ruth Arii told the court that the Respondent was not aware of the Claimant’s illness, and that his condition could not allow him to communicate. 9. RW2 could not confirm whether the Claimant was heard before his employment was terminated. She confirmed that the Claimant’s employment was terminated for gross misconduct for having come to work drunk, and the communication was passed to him through his wife due to his condition. 10. The Respondent urges the court to dismiss the Claimant’s suit with costs. **Analysis and Determination** 1. The following two issues fall for determination: 2. Whether the termination of the Claimant's employment was substantively and procedurally fair and lawful. 3. Whether the Claimant is entitled to the remedies sought. **Whether the termination of the Claimant's employment was substantively and procedurally fair and lawful** 1. Sections 43 and 45 of the Employment Act place the burden upon an employer to prove the reason (s) for termination of employment and to show that such reasons were valid, fair, and justified. 2. The Respondent's position is that the Claimant committed gross misconduct by reporting to work while intoxicated, carrying empty alcohol bottles, a bottle containing alcohol, a Maasai rungu and a walking stick, drinking alcohol in the office, and behaving aggressively towards staff. 3. These allegations, where proven, would no doubt amount to gross misconduct under Section 44(4) of the Employment Act and could justify a summary dismissal. 4. The Claimant’s assertion is that he diligently performed his duties until 18th August 2022, when his employment was unlawfully terminated through a communication made to his wife, without any reasons being provided for the termination. 5. The Respondent's own evidence establishes that immediately after the incident, it believed that the Claimant's mental capacity had been impaired. Indeed, RW2 expressly testified that the communication regarding termination was passed to the Claimant's wife due to his condition and inability to communicate. 6. RW1 confirmed that the Respondent searched for the Claimant after learning that his condition had deteriorated, which, in my view, is an acknowledgment by the Respondent that the Claimant was not behaving normally and needed help rather than a hurried dismissal. 7. Further, the Claimant testified that he suffers from bipolar disorder and that he suffered a relapse after his medication was affected by high temperatures in Lodwar. Although he did not produce medical records relating to the August 2022 admission and further admitted that he had not informed the Respondent about the storage requirements of his medication, his explanation substantially corresponds with the Respondent's own account that shortly thereafter he disappeared, was traced in Eldoret in a disturbed mental state, admitted to hospital, and since then remained unwell. 8. The Respondent's evidence therefore corroborates, rather than disproves, that the Claimant experienced a serious mental health episode. 9. The Court is, however, unable to conclude that the Respondent had prior knowledge of the Claimant's bipolar disorder. Although the Claimant asserted that he had submitted his disability registration card and tax exemption documents, RW1 testified that he could not confirm receipt of those documents, while RW2 maintained that the Respondent was unaware of the illness. The Claimant equally admitted in cross-examination that he never informed the Respondent about his medical condition or the medication he was on. 10. Accordingly, the Court cannot fault the Respondent for failing to appreciate beforehand that the Claimant suffered from bipolar disorder. 11. It is, however, my considered opinion that once the Respondent realized that the Claimant's conduct was likely attributable to an impaired mental condition, as evidenced by its decision to communicate through his wife and later search for him after his disappeared, the Respondent ought to have addressed the matter as one involving an employee incapacitated by illness rather than immediately resorting to disciplinary dismissal. 12. The Court therefore finds that although the Respondent had genuine concerns arising from the Claimant's conduct, it failed to establish, on a balance of probabilities, that dismissal for gross misconduct was the appropriate and justified response in the peculiar circumstances presented herein. 13. Accordingly, the Court finds that the Respondent did not discharge its statutory burden of proving a valid and fair reason for terminating the Claimant's employment, which renders the termination substantively unfair and unlawful. 14. On whether the Respondent adhered to fair process when terminating the Claimant’s employment, his position is that the Respondent terminated his employment without issuing a notice of the intended termination, nor according him a hearing in the presence of a fellow employee or union representative of his choice. 15. Section 41 of the Employment Act requires that before terminating employment on grounds of misconduct, incapacity, or poor performance, an employer must explain the allegations to the employee in a language the employee understands and allow him an opportunity to respond in the presence of another employee or shop floor representative of his choice. 16. The Respondent candidly admitted that no disciplinary hearing took place. RW2 expressly testified that she could not confirm that the Claimant was heard before termination, and admitted further that the Respondent communicated the dismissal through the Claimant's wife because his condition did not allow him to communicate. 17. While the Court appreciates the Respondent's concern regarding the Claimant's apparent mental condition, the Employment Act does not permit an employer to dispense with procedural fairness merely because an employee appears incapacitated. Where an employee is genuinely incapable of participating in disciplinary proceedings due to illness, the employer is expected to postpone the disciplinary process until the employee is medically fit or consider alternative lawful measures consistent with the employment relationship. 18. In my view, termination through a spouse cannot substitute the statutory hearing contemplated under Section 41. The Court of Appeal in ***Postal Corporation of Kenya v Andrew K. Tanui [2019] eKLR*** emphasized that compliance with Section 41 is mandatory. 19. Further in ***Pius Machafu Isindu v Lavington Security Guards Ltd [2017] eKLR,*** the Court of Appeal held that substantive justification and procedural fairness are distinct statutory requirements, both of which must be satisfied before termination can be considered lawful. 20. In the upshot, the Court finds that the Respondent wholly failed to comply with the mandatory procedural safeguards under Section 41, hence the termination was procedurally unfair. 21. The Court concludes, therefore, that the termination of the Claimant was both substantively and procedurally unfair and unlawful. **Whether the Claimant is entitled to the remedies sought** 1. Having found that the termination of the Claimant’s employment was unfair, entitles him to compensation pursuant to Section 49(1)(c) of the Employment Act, 2007. 2. The Claimant was in the service of the Respondent for about a month and a half before the events leading to the termination of his employment. It is also not disputed that he was still serving on probation, and it is evident that the Respondent genuinely believed that the Claimant had committed serious misconduct, the Claimant not having disclosed his medical condition linking the August incident to a bipolar relapse. 3. These factors, in my view, substantially mitigate against the maximum award of twelve months' salary, and on this basis, I deem an award equivalent to two months' salary sufficient compensation for the unfair termination, which is hereby awarded. 4. The Claimant is further entitled to one month's salary in lieu of notice, there being no evidence that notice was issued before the termination was effected. 5. With respect to the unremitted PAYE deductions of Kshs. 43,167, although the Respondent admitted deducting PAYE, the Claimant did not produce evidence that the amount was never remitted to the tax authority. The burden of proving non-remittance remained with the Claimant under Sections 107 and 109 of the Evidence Act. 6. That claim, therefore, fails. 7. Further, the claim for unpaid salary for days worked in August was not controverted by the Respondent through the production of payroll records. 8. I thus find the claim merited and allowed as prayed. 9. Accordingly, Judgment is entered for the Claimant as follows: 10. A declaration that the termination of the Claimant's employment was both substantively and procedurally unfair and unlawful. 11. That the Respondent shall pay the Claimant: 12. One month's salary in lieu of notice. 13. Compensation equivalent to two months' salary for unfair termination. 14. The Claimant shall have the costs of the suit together with interest on (i) & (ii) above at court rates from the date of judgment until payment in full. 15. Judgment accordingly. **SIGNED, DATED, AND DELIVERED BY VIDEO-LINK AND IN COURT AT NAIROBI THIS 3RD DAY OF JULY, 2026.** **C. N. BAARI** **JUDGE** **Appearance:** N/A for the Claimant Ms. Amin present for the Respondent Ms. Esther S-C/A