https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2078

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT AND LABOUR RELATIONS COURT OF KENYA AT ELDORET** **PETITION NO. E001 OF 2026** *(Before Hon. Lady Justice Maureen Onyango)* **IN THE MATTER OF ARTICLES 2,9,20(1-4),21(1), &3,22(1) &(2)(b) &(c),23(1) &(3),25(a)&(c),27,28,31,41(1),47,48,50(1),73,75,159,162(2)(a),165(3)(b),232,258(1) and 259(1) OF THE CONSTITUTION OF KENYA** **AND** **IN THE MATTER OF RULE 2,4,10,11,13 AND 14 OF THE CONSTITUTION OF KENYA (PROTECTION OF RIGHTS AND FUNDAMENTAL FREEDOMS) PRACTICE AND PROCEDURE RULES,2013** **AND** **IN THE MATTER OF CONTRAVENTION OF THE PETITIONER’S FUNDAMENTAL RIGHTS AND FREEDOMS PROTECTED BY ARTICLES 27,28,31,41,47,48 AND 50 OF THE CONSTITUTION OF KENYA, 2010** **AND** **IN THE MATTER OF THE EMPLOYMENT ACT,2007** **BETWEEN** **MITCHELLE ODHIAMBO …………………………... PETITIONER** **VERSUS** **MANPOWER NETWORKS LIMITED ................ RESPONDENT** **JUDGMENT** 1. The Petitioner is an employee of the Respondent, a company registered in Kenya under the Companies Act dealing with the recruitment and supply of outsourced labour workforce. 2. In the Petition dated 7th January 2026, the Petitioner alleges that the Respondent breached various provisions of the Constitution and the Data Protection Act by unlawfully accessing her private financial data and suspending her. The Petitioner seeks the following orders against the Respondent: 3. Declaration be and is hereby issued that the Respondent violated the Petitioners right to Privacy contrary to Article 31 of the Constitution of Kenya 2010 by unlawfully accessing her private financial data. 4. A Declaration be and is hereby issued that the Respondent violated the Petitioners right to fair labour rights contrary to Article 41 of the Constitution. 5. A Declaration be and is hereby issued that the Respondent violated the Petitioners right to fair hearing contrary to Articles 47 and 50 of the Constitution. 6. A Declaration be and is hereby issued that the Respondent's show cause letter dated 10th December 2025 is invalid, null and void ab initio as it was based on evidence that was illegally obtained. 7. A Declaration be and is hereby issued that the Respondent's verbal suspension dated 10th December 2025 is invalid, null and void ab initio as it was premised on core violations of the Petitioner's right to fair hearing, fair labour practices as well as the right to fair administrative action. 8. An Order of Certiorari be and is hereby issued calling into this court and quashing the show cause letter purporting to subject the Petitioner to a disciplinary action as it violates the Petitioner's right to fair hearing, fair labour practices as well as the right to fair administrative action. 9. An Order of Certiorari be and is hereby issued calling into this court and quashing the verbal suspension purporting to suspend the Petitioner form her duties pending conclusion of disciplinary proceedings against her. 10. An Order of Mandamus be and is hereby issued directing the Respondent to allow the Petitioner to resume her duties at the Respondent and continue discharging her duties according to her contract of employment. 11. An order of Prohibition restraining the Respondent from subjecting the Petitioner to disciplinary proceedings on the basis of illegally obtained evidence, including the Mpesa transactions contained in the purported investigation report. 12. An Order of Compensation directing the Respondent to pay damages to the Petitioner herein for the violation and contravention of her fundamental rights and freedoms under Articles 31, 41, 47, 48 and 50 of the Constitution. 13. Any other relief and/or orders the Honourable court deems appropriate, just and/or fit to grant. 14. The Respondent bear cost of this petition 15. The Petition is supported by the affidavit of Mitchelle Odhiambo, the Petitioner sworn on 7th January 2026. 16. The Respondent opposed the Petition vide the Replying Affidavit sworn on 2nd February 2026 by Mercy Wanjau, its site supervisor. Upon service with the Replying Affidavit, the Petitioner filed a further affidavit sworn on 20th May 2026. **The Petitioner’s Case** 1. The Petitioner's case is that she was employed by the Respondent on 3rd January 2025 as a Customer Service Executive. She avers that she diligently discharged her duties until 10th December 2025 when she was summoned by the Site Supervisor to Msafiri Hotel and served with a show cause letter of even date. 2. The Petitioner avers that the show cause letter indicated that the Respondent had conducted investigations and established that she had improperly received Kshs. 18,000 through M-Pesa from the Respondent's suppliers and transporters. 3. It is the Petitioner’s case that the Respondent relied on an investigation report that was procured through an unlawful intrusion into her private affairs by accessing her M-Pesa transaction records without her knowledge or consent, and in the absence of any court order or other lawful authority. 4. The Petitioner further asserts that based on the unlawfully obtained information, she was verbally suspended from duty without pay, given only a few hours within which to respond to the allegations levelled against her, and summoned to a disciplinary hearing without being furnished with the supporting documents necessary to prepare her defence. 5. She further avers that she was compelled to prepare and submit her response to the show cause letter immediately and in the presence of the Site Supervisor. 6. The Petitioner further states that, on the same day, the Respondent served her with a second show cause letter dated 10th December 2025 containing allegations and particulars that materially differed from those set out in the first show cause letter. 7. The Petitioner contends that she was thereafter required to attend a disciplinary hearing initially scheduled for 20th December 2025, which was subsequently rescheduled to 22nd December 2025. 8. According to the Petitioner, the disciplinary hearing proceeded without the Respondent furnishing her with the investigation report or any other supporting documents, thereby denying her an adequate opportunity to prepare and present her defence. 9. **She** further avers that, upon the conclusion of the disciplinary proceedings, she was denied access to the minutes of the hearing, notwithstanding that she was required to sign an acknowledgment confirming her attendance. 10. It is the Petitioner's case that the disciplinary process was tainted by material procedural improprieties and violated her constitutional and statutory rights to fair labour practices, fair administrative action and a fair hearing. She consequently contends that the entire disciplinary process was irregular, unlawful and invalid. 11. The Petitioner further contends that requiring her to prepare and submit her response to the show cause letter immediately and in the presence of the Human Resource Manager within a public restaurant, constituted a manifest violation of her constitutional and statutory rights to fair administrative action and a fair hearing. 12. The Petitioner further avers that the Respondent's reliance on evidence allegedly obtained through unlawful access to her M-Pesa records violated her right to privacy as guaranteed under Article 31 of the Constitution. 13. She further contends that her suspension from duty, having been founded on unlawfully obtained evidence, was unlawful and constituted a further infringement of her right to fair labour practices under Article 41 of the Constitution. 14. The Petitioner thus maintains that the Respondent's actions were malicious, unlawful, irregular and calculated to unjustifiably exclude her from the workplace without any lawful basis. 15. In addition, the Petitioner contends that, although the Respondent accused her of breaching company policies, it had never supplied her with those policies at any time during the course of her employment. 16. The court was therefore urged to grant the prayers as sought in the Petition. **The Respondent’s case** 1. In response to the Petition, the Respondent averred that the show cause letter dated 10th December 2025 was issued to notify the Petitioner of the specific matters under investigation and to afford her an opportunity to respond before any disciplinary decision was contemplated. 2. The Respondent further averred that the Petitioner responded to the show cause letter and admitted receiving the impugned sums of money, although she described them as unsolicited personal tokens of appreciation. 3. According to the Respondent, the receipt of money from suppliers and other business associates, irrespective of the Petitioner's characterization of the payments, constituted a serious breach of professional integrity and created a conflict of interest warranting an internal disciplinary inquiry. 4. The Respondent maintained that the Petitioner's contention that there was no specific written policy or prior training on the declaration of gifts was a matter to be considered during the disciplinary process and did not, of itself, render the preliminary inquiry unconstitutional. 5. It is the Respondent's case that, contrary to the allegations contained in the Petition, no disciplinary sanction had been imposed upon the Petitioner. The Respondent averred that the Petitioner remained in its employment and continued to receive her full salary and employment benefits without interruption. 6. In response to the alleged constitutional violations, the Respondent denied infringing the Petitioner's right to privacy under Article 31 of the Constitution or violating the provisions of the Data Protection Act. It maintained that the information concerning the Petitioner's conduct was obtained through a legitimate internal compliance review relating to her professional integrity and the performance of her duties during working hours. The Respondent asserted that, in the course of its operations, it received reports from one of its clients indicating that the Petitioner had irregularly received payments amounting to Kshs. 18,000 from the Respondent's suppliers and transporters, and that upon receipt of that information, it acted with due diligence by issuing a show cause letter to the Petitioner to afford her an opportunity to explain the impugned transactions, thereby ensuring that the principles of natural justice were observed from the very inception of the disciplinary process. 7. The Respondent denied unlawfully accessing or processing the Petitioner's private data and contended that the information concerning the disputed payments arose in the context of a work-related conduct issue and that the show cause letter was issued solely to afford the Petitioner an opportunity to respond to the allegations in accordance with the principles of natural justice. 8. The Respondent further contended that the right to privacy is not absolute and cannot shield an employee from accountability where there exists a reasonable suspicion of financial impropriety involving the employer's suppliers or other business associates. 9. The Respondent also denied violating the Petitioner's rights under Articles 41, 47, 48 and 50 of the Constitution. It maintained that the disciplinary proceedings constituted a preliminary administrative process intended to facilitate the Petitioner's right to be heard before any adverse decision could be made. 10. In response to the Petitioner's allegation that the show cause letter was not accompanied by supporting documents, the Respondent averred that the purpose of a show cause letter was to formally notify the Petitioner of the allegations giving rise to the disciplinary process as contemplated under section 41 of the Employment Act. It further maintained that the disclosure of investigative findings and supporting evidence properly falls within the disciplinary hearing, which is the appropriate forum for the production and testing of such evidence. 11. The Respondent asserted that the Petition was premature and misconceived as it sought to challenge an ongoing preliminary disciplinary process rather than any final decision. It also contended that the Petitioner had failed to exhaust the internal dispute resolution mechanisms provided for under her contract of employment and the Respondent's Human Resource Policy. 12. According to the Respondent, the Petitioner's attempt to elevate what it described as a routine internal integrity review into a constitutional dispute was a pre-emptive attempt to impede the Respondent's lawful authority to manage its workforce and safeguard its legitimate business interests. 13. The Respondent maintained that the declaratory reliefs sought were undeserved as the Petitioner had failed to establish a prima facie case of constitutional infringement. 14. The Respondent further averred that the prayer seeking to quash the show cause letter was misconceived, arguing that a show cause letter is an essential procedural requirement in ensuring a fair disciplinary process. According to the Respondent, granting such an order would effectively immunize the Petitioner from being subjected to lawful disciplinary accountability. 15. With regard to the prayer for reinstatement, the Respondent contended that the relief sought was misplaced, as the Petitioner had neither been dismissed from employment nor removed from the Respondent's payroll. 16. The Respondent also opposed the prayer for compensation and damages, contending that the Petitioner had not demonstrated any financial loss, professional prejudice or other injury capable of attracting such relief. 17. Consequently, the Respondent maintained that the Petition disclosed no reasonable cause of action and merely sought to invoke this Court's constitutional jurisdiction to interfere with an ordinary employer-employee disciplinary process. 18. The Respondent urged the Court to dismiss the Petition with costs. 19. In a rejoinder, the Petitioner in a further affidavit sworn on 20th May 2026 contended that she was issued with a show cause letter requiring her to submit a written response within 24 hours. She contended that although the show cause letter indicated that investigations had been conducted, she was neither furnished with the investigation report nor provided with the internal policy upon which the allegations against her were founded. She further deponed that she was compelled to prepare and submit her written response while seated before her supervisor in a restaurant on a Saturday. 20. The Petitioner further averred that she was verbally suspended from duty without pay and was subsequently subjected to a disciplinary hearing without being allowed to be accompanied by a colleague or representative of her choice. She maintained that she was denied access to the minutes of the disciplinary hearing, asserting that Ms. Lucy Mwangi informed her that she would not be supplied with the minutes at that stage despite being required to sign an acknowledgment confirming her attendance at the hearing. She further contended that notwithstanding the Court's orders preserving the status quo, the Respondent proceeded to replace her with a Ms. Momanyi, who effectively assumed her position within the company. 21. The Petitioner deponed that she was required to sit in the boardroom for approximately one month without being assigned any responsibilities, despite reporting to work every day. She stated that on 4th February 2026, she was compelled to proceed on compulsory leave against her wishes and, on 9th February 2026, was denied access to the Respondent's premises by security personnel despite the existence of a subsisting court order. According to the Petitioner, she has remained on forced compulsory leave since that date despite making several requests to resume her duties. She also averred that her salary was on several occasions withheld and only released after repeated reminders and follow-up calls to the Human Resources Manager. 22. The Petitioner contended that the Respondent's actions amounted to a continuing violation of her rights under Articles 41, 47 and 50 of the Constitution. She maintained that the remedies sought in the Petition were therefore merited. 23. As directed by the court on 4th February 2026, the Petition was disposed of by way written submissions. **Petitioner’s submissions** 1. In her submissions dated 18th May 2026, the Petitioner identified the issues for determination to be: - 2. Whether the Respondent's acquisition and reliance on the Petitioner's private M-Pesa transaction records constitutes a violation of Article 31 of the Constitution and the Data Protection Act, 3. Whether the disciplinary procedure adopted by the Respondent met the constitutional and standards threshold of fair administrative action (Article 47) and fair labour practices (Section 41), 4. Whether the Respondent's conduct following the Court's Order of 9th January 2026 amounts to a constructive and de fact termination in contempt of the law, 5. Whether the Petitioner's Constitutional Rights and Fundamental Freedoms Under Articles 31, 41, 47, 48 and 50 have been violated and denied by the Respondent. 6. On the first issue whether the Respondent's acquisition and reliance on the Petitioner's private M-Pesa transaction records violated **Article 31 of the Constitution** and the **Data Protection Act**, the Petitioner submitted that the Respondent initiated disciplinary proceedings founded upon evidence comprising her private M-Pesa transaction records, which had been obtained in violation of both the Constitution and statutory safeguards. 7. According to the Petitioner, the Respondent expressly admitted relying on her private M-Pesa transaction records in commencing and sustaining the disciplinary proceedings against her. It was further submitted that the Respondent obtained those records without the Petitioner's knowledge or consent and without the authority of a court order. Despite admitting reliance on the records, the Respondent failed to demonstrate any lawful basis upon which it accessed or processed the Petitioner's personal financial data. The Petitioner contended that the Respondent's conduct amounted to a gross violation of her constitutional right to privacy and the provisions of the **Data Protection Act, 2019**. 8. Relying on **Article 31 of the Constitution** and **sections 25 and 30(1) of the Data Protection Act**, the Petitioner submitted that personal financial information, including mobile money transaction records, lies at the very core of an individual's private affairs and therefore falls squarely within the protection afforded by the Constitution and the law. The Petitioner argued that, being a private entity, the Respondent could not lawfully arrogate to itself investigative powers beyond those conferred by law. In this regard, the Petitioner maintained that an employee's constitutional right to privacy is not extinguished merely because an employment relationship exists as privacy is not a privilege bestowed by an employer but a constitutional guarantee. 9. The Petitioner submitted that the Respondent's reliance on the Petitioner's M-Pesa transaction records, which were accessed without her knowledge, consent or a court order, constituted an unjustifiable intrusion into her private financial affairs. In support of that proposition, reliance was placed on the cases of **Jessica Clarise Wanjiru v Davinci Aesthetics & Reconstruction Centre & 2 Others [2017] eKLR**, **Mwangi v ABSA Bank Kenya PLC [2024]**, **Abinayo v House & Farm Company Limited [2024] KEELRC 2832 (KLR)** and **GJK v KPMG Advisory Services [2017] eKLR**. 10. The Petitioner submitted thatthe Respondent's reliance on the Petitioner's private M-Pesa transaction records, allegedly obtained unlawfully and without her consent, violated her right to privacy under **Article 31 of the Constitution** and rendered the entire disciplinary process unlawful and invalid. 11. On the issue whether the disciplinary procedure met the standards of fair administrative action (Article 47) and fair labour practices (Section 41) the Petitioner submitted that the Respondent's conduct in compelling her to respond to the show cause letter within 24 hours and requiring her to prepare the response at a public restaurant constituted a manifest breach of procedural fairness. It was submitted that Article 47 of the Constitution entitles every person to administrative action that is lawful, reasonable and procedurally fair. 12. The Petitioner relied on **Akala v Kenya Commercial Bank Ltd [2025] KEELRC 1724 (KLR),** in which the Court held that an employee must be afforded adequate time, with a minimum of 48 hours being the best practice, and be granted full access to all the evidence upon which an employer intends to rely before responding to disciplinary allegations. According to the Petitioner, selective disclosure of evidence or the imposition of rushed timelines undermines an employee's right to be heard. 13. The Petitioner further relied on **Kendagor v Dig Deep (Africa) [2025] KEELRC 2753 (KLR)** and submitted that unlawful access to an employee's private communications or financial records constitutes a violation of the right to privacy. 14. The Petitioner also relied on the decisions in **Joseph Mutuura Mberia & Another v Council of Jomo Kenyatta University of Agriculture and Technology (JKUAT) [2013] eKLR and Gogni Rajope Construction Co. Limited & Another v Omondi [2025] KECA 161 (KLR),** where the Court clarified that disciplinary processes must comply with the procedural fairness requirements under section 41 of the Employment Act. 15. Based on the foregoing, the Petitioner submitted that the disciplinary process undertaken by the Respondent is impeachable. According to the Petitioner, the evidence on record points to one undeniable conclusion, namely that the disciplinary process did not meet the procedural fairness test outlined under sections 41 and 45 of the Employment Act. 16. With regard to the third issue, it is the Petitioner’s submission that the Respondent's contention that she remains in "active employment" merely because no formal letter of termination has been issued is designed to obscure what is plainly a case of constructive and de facto termination. 17. The Petitioner submitted that on 9th January 2026, this Court issued an order maintaining the *status quo ante*, meaning that she was to continue serving as a Customer Service Executive with all the attendant rights and responsibilities. She submitted that rather than complying with that order, the Respondent allegedly embarked on a tactical re-organisation intended to render the Court's order nugatory and that upon reporting back to work, the Petitioner found that her workstation and duties had already been assigned to a new employee, Ms. Momanyi. She submits that by stripping her of her professional functions and confining her to a boardroom without any assigned duties for approximately one month, the Respondent fundamentally breached the employment contract. 18. The Petitioner further submitted that she has since been placed on "compulsory leave" from 9th February 2026 despite her express objections and repeated requests to resume her duties. In this regard, it is submitted that the physical lockout, coupled with the withholding of her salaries for February and March 2026 until multiple reminders were issued, constitutes a de facto termination of her employment. 19. **On the issue whether the Petitioner's constitutional rights and fundamental freedoms under Articles 31, 41, 47, 48 and 50 of the Constitution were violated by the Respondent,** the Petitioner submitted that the Respondent sought to portray the dispute as an ordinary administrative inquiry whereas, in reality, it constituted a systematic violation of her constitutional rights. She argued that the Respondent unlawfully accessed and relied on her private M-Pesa transaction records without her knowledge, consent or a court order, thereby violating her right to privacy under Article 31 of the Constitution and the safeguards established under the Data Protection Act. In support of that proposition, she relied on the case of **Mue & another v Chairperson of Independent Electoral and Boundaries Commission & 3 others [2017] KESC 45 (KLR).** 20. The Petitioner further submitted that her right to fair labour practices under Article 41 was infringed when she was verbally suspended without pay, stripped of her duties, relegated to sitting in a boardroom without any meaningful responsibilities and subsequently denied access to the Respondent's premises. According to the Petitioner, those actions deprived her of her professional dignity and amounted to unfair labour practices. 21. The Petitioner also contended that the Respondent violated her right to fair administrative action under Article 47 by requiring her to respond to a show cause letter within twenty-four hours and compelling her to prepare that response immediately upon being served with the same at a public restaurant without first furnishing her with the investigation report or the company policies allegedly breached. She relied on **Ombajo v Institute of Certified Public Accountants of Kenya (ICPAK) [2022] KECA 1360 (KLR),** where the Court of Appeal held that inadequate notice and insufficient time to prepare for disciplinary proceedings render the process procedurally unfair. 22. Lastly, the Petitioner submitted that her rights of access to justice and a fair hearing under Articles 48 and 50 were violated when the Respondent conducted the disciplinary hearing without disclosing the evidence against her, withheld the minutes of the proceedings and ignored her written protests while nevertheless requiring her to acknowledge attendance. She argued that the disciplinary process was therefore nothing more than a kangaroo court, conducted in breach of the constitutional guarantees of fairness. 23. The Petitioner consequently urged the Court to find that the Respondent had violated her constitutional rights under Articles 31, 41, 47, 48 and 50 of the Constitution, to quash the impugned disciplinary proceedings, prohibit the Respondent from relying on the unlawfully obtained M-Pesa records, award her appropriate compensation for the constitutional violations and grant her the costs of the Petition. **Respondents’ submissions** 1. In the submissions dated 10th June 2026, the Respondent framed the issues for determination to be: - 2. Whether the Petition is competent or amounts to an abuse of court process. 3. Whether the Respondent violated the Petitioner's right to privacy under Article 31 of the Constitution and the Data Protection Act, 2019. 4. Whether the Respondent adhered to procedural due process under Article 41 and Article 47 of the Constitution and Section 41 of the Employment Act 5. Whether the Petition is premature and whether the reliefs sought are available in the absence of any adverse employment decision. 6. On the issue whether the Petition is competent or amounts to an abuse of court process, the Respondent submitted that although the Petition is framed as a constitutional claim, it is in substance an ordinary employment dispute arising from an ongoing disciplinary process governed by the Employment Act, 2007. According to the Respondent, the Petitioner's complaints relate to the issuance of a show cause letter, internal investigations and disciplinary proceedings all of which fall squarely within the statutory framework regulating employer-employee relations. 7. The Respondent submitted that courts should guard against the constitutionalisation of ordinary employment disputes where adequate statutory remedies exist. In that regard, reliance was placed on ***Sumayya Athmani Hassan v Paul Masinde Simidi & another (2019) KECA 107(KLR).*** 8. It was further submitted that Article 41 of the Constitution is given effect through the Employment Act and the Labour Relations Act, and that where legislation has been enacted to implement a constitutional right, a litigant cannot found a cause of action directly on the Constitution without first challenging the legislation. The Respondent contended that the issuance of a show cause letter, the request for an explanation and the convening of a disciplinary hearing, are expressly contemplated under section 41 of the Employment Act and do not, in themselves, constitute a completed cause of action warranting constitutional intervention. 9. According to the Respondent, although Article 22 of the Constitution grants standing to institute constitutional proceedings, it does not dispense with the requirement that a petitioner demonstrate a concrete and justiciable constitutional dispute rather than a premature challenge to an ongoing disciplinary process. The case ***of Consumer Federation of Kenya v Toyota Motors Corporation & 4 others (Petition 455 of 2018) (2022) KEHC 15459(KLR)*** was cited in support of this position. 10. The Respondent further argued that permitting constitutional petitions to interrupt disciplinary proceedings at interlocutory stages would undermine the statutory framework governing employment relations and improperly convert the Court into a first-instance supervisory body over routine human resource processes. It was therefore submitted that the doctrine of constitutional avoidance does not oust the Court's jurisdiction but guides the Court to decline constitutional determination where an effective statutory remedy exists. 11. Citing the case of ***Anarita Karimi Njeru v Republic (1979) eKLR***, the Respondent submitted that the Petition herein discloses no distinct constitutional question requiring determination but merely repackages an ordinary disciplinary process as a constitutional dispute in an attempt to pre-empt its lawful conclusion. 12. Accordingly, the Court was urged to find that the Petition is premature, misconceived, an abuse of the court process and liable to be struck out or dismissed. 13. With regard to the second issue, the Respondent submitted that the Petitioner's allegation that it unlawfully obtained and relied upon her private M-Pesa transaction records without her consent or a court order is unsupported by the evidence and misconceives both the scope of the constitutional right to privacy and the circumstances under which such a violation may arise. 14. The Respondent submitted that the right to privacy protects individuals against unjustified interference with their personal and informational autonomy. In support of that proposition, reliance was placed on **J W I & another v Standard Group Limited & another [2015] eKLR**, where the Court held that the right to privacy encompasses protection against unlawful intrusion into an individual's private affairs and the unauthorized disclosure or misuse of confidential personal information. 15. According to the Respondent, it neither intercepted the Petitioner's communications, hacked her phone, accessed her mobile device, nor obtained her M-Pesa records from Safaricom PLC or any other telecommunications service provider. Rather, the information concerning the impugned transactions was voluntarily disclosed by the suppliers and transporters operating at the outsourced client's site in Eldoret, who reported that they had transferred a total of KShs.18,000 to the Petitioner's personal M-Pesa account while she was deployed as the Respondent's outsourced operational representative. 16. The Respondent submitted that the information was disclosed by the contractors in the course of reporting concerns regarding a potential conflict of interest and integrity issues involving the Petitioner. Consequently, it argued that it was neither the collector nor the originator of the information but merely the recipient of reports voluntarily made by third parties who were themselves participants in the transactions. It therefore contended that receiving and acting upon such information could not amount to an invasion of the Petitioner's privacy, as to hold otherwise would effectively prevent employers from receiving or investigating complaints made by suppliers, contractors or whistle-blowers concerning employee misconduct. 17. The Respondent further submitted that, consistent with the principles enunciated in **J W I & another v Standard Group Limited & another** above, liability for infringement of the right to privacy can only arise upon proof of unlawful conduct by the party alleged to have committed the intrusion. It argued that the Petitioner had not demonstrated that the Respondent unlawfully collected, accessed or processed her personal data, nor had she adduced any evidence showing that the Respondent obtained her M-Pesa records from Safaricom, intercepted her communications or otherwise procured her personal information through unlawful means. The Respondent submitted that the allegation of unlawful access was therefore speculative and unsupported by any evidential foundation. 18. The Respondent further contended that the Petitioner had failed to identify any specific act of processing undertaken in breach of the Data Protection Act, 2019. According to the Respondent, the mere receipt of information voluntarily supplied by third parties does not amount to unlawful collection, processing or disclosure of personal data. 19. The Respondent also submitted that the Petitioner's own response to the Show Cause Letter dated 10th December 2025 substantially undermined her complaint, as she expressly acknowledged receiving the KShs.18,000 and explained that the monies constituted unsolicited personal tokens of appreciation unrelated to any preferential treatment. 20. Accordingly, the Respondent submitted that no unlawful intrusion into the Petitioner's private affairs had been established and that it merely received and acted upon information voluntarily disclosed by third parties. It urged the Court to find that no violation of Article 31 of the Constitution or the Data Protection Act, 2019 had been proved and to dismiss this ground of the Petition. 21. **On the issue whether the Respondent adhered to procedural due process under Articles 41 and 47 of the Constitution and section 41 of the Employment Act,** the Respondent submitted that the Petitioner's complaint was founded on the allegation that she was initially required to respond to the accusations at a public establishment in Eldoret, which she characterized as coercive and intimidating, thereby rendering the entire disciplinary process procedurally unfair. 22. The Respondent submitted that the meeting held at Msafiri Hotel was merely a preliminary fact-finding engagement necessitated by operational realities arising from its outsourced labour model. According to the Respondent, the meeting neither constituted a disciplinary hearing nor resulted in any adverse disciplinary decision against the Petitioner. 23. The Respondent further submitted that the Petitioner's argument misconstrued the legal standard governing employment disciplinary processes. It argued that the law does not require procedural perfection or courtroom-style formalism at every stage of an employer's internal investigations. Rather, the applicable test is whether an employer has complied with the minimum procedural safeguards prescribed under section 41 of the Employment Act and Articles 41 and 47 of the Constitution, assessed in a practical and context-specific manner. In support of that proposition, reliance was placed on **Kenya Revenue Authority v Gitahi & 2 others *[2019] KECA 300 (KLR),*** where the Court of Appeal held that fairness in disciplinary proceedings is not measured by rigid procedural formalities but by whether the employee was sufficiently informed of the allegations and afforded a meaningful opportunity to respond before any adverse decision is taken. The Respondent submitted that the law demands substantive fairness rather than procedural perfection judged with the benefit of hindsight. 24. The Respondent further submitted that the Petitioner's complaint that she was not supplied with documentary evidence before the disciplinary hearing amounted to no more than a procedural technicality. According to the Respondent, the Show Cause Letter dated 10th December 2025 clearly set out the allegations, the relevant dates and the amounts in question, thereby enabling the Petitioner to understand fully the case she was required to answer. It was further submitted that the Petitioner's written response, in which she admitted receiving the funds, demonstrated that she fully understood the allegations and suffered no prejudice by the alleged absence of supporting documentation. 25. The Respondent further contended that had the Petitioner required additional documentation, the appropriate course would have been to request its production during the internal disciplinary proceedings rather than prematurely invoking the Court's jurisdiction before the disciplinary process had run its course. 26. According to the Respondent, it fully complied with section 41 of the Employment Act by serving the Petitioner with a detailed Show Cause Letter specifying the allegations against her, affording her an opportunity to respond in writing and subsequently convening a disciplinary hearing, which was postponed to 22nd December 2025 to allow her adequate time to prepare. It was submitted that the Petitioner attended the disciplinary hearing, was heard at length, elaborated on her written response and confirmed her participation in the proceedings. 27. Accordingly, the Respondent submitted that the disciplinary process satisfied both the procedural and substantive requirements of Articles 41 and 47 of the Constitution and section 41 of the Employment Act. It therefore urged the Court to find that the allegation of procedural unfairness was without merit and ought to be dismissed. 28. Lastly,on the issue whether the Petition is premature and whether the reliefs sought are available in the absence of any adverse employment decision, the Respondent submitted that the Petitioner's main prayers seek to stop the ongoing disciplinary process and restrain the Respondent from terminating, dismissing or otherwise interfering with her employment. According to the Respondent, the key question is whether any decision has been made against the Petitioner that would justify the grant of those orders. It was submitted that no such decision had been made because the Petition was filed before the disciplinary process had been concluded. 29. The Respondent submitted that, as deponed in the Replying Affidavit of Mercy Wanjau, it had neither terminated nor summarily dismissed the Petitioner, nor otherwise brought the employment relationship to an end. The Respondent argued that no letter of termination had been issued or implemented and that, throughout the proceedings, the Petitioner remained an employee of the Respondent and continued to enjoy the status and benefits attendant to that employment relationship. 30. Further, the Respondent submitted that the Petitioner's own evidence in the Further Affidavit dated 20th May 2026 confirms the continued existence of the employment relationship and that the issues concerning annual leave, payment of salary and reassignment were ordinary incidents of an ongoing employment relationship and, by producing those documents, the Petitioner effectively confirmed that no final disciplinary sanction had been imposed. The Respondent relied on the decision in ***Mugo HSC v Mugo & 2 Others (Petition E006 of 2022) [2024] KEELRC 2445 (KLR)*** and urged the court to exercise judicial restraint on the basis that the disciplinary process had not culminated in dismissal, suspension or any other adverse employment decision capable of being quashed by an order of certiorari or restrained by an injunction. 31. The Respondent submitted that the Petition is founded on a speculative apprehension of future harm rather than an actual violation of rights. It argued that the Court cannot issue injunctive relief against a dismissal that has not occurred, nor quash a disciplinary process that has yet to culminate in a final adverse determination. The Respondent thus maintained that the Petition is premature and the reliefs sought unavailable in law. 32. In the end, the Respondent submitted the Petition merely sought to constitutionalise an ordinary employment dispute and improperly invite the Court to intervene in an ongoing internal disciplinary process contrary to the doctrine of constitutional avoidance and the principles governing judicial restraint in employment matters. 33. The Court was therefore urged to dismiss the Petition with costs. **Determination** 1. Having considered the petition, the response thereto, the submissions of the parties as well as the authorities cited therein, I find that the issues that present themselves for this court’s determination are: - 2. Whether the Petition offends the doctrine of constitutional avoidance, 3. Whether the Respondent violated the Petitioner's right to privacy under Article 31 of the Constitution and the Data Protection Act, 2019, 4. Whether the disciplinary process complied with Articles 41 and 47 of the Constitution and section 41 of the Employment Act, 5. Whether the Respondent’s conduct following the Court’s orders of 9th January 2026 amounted to constructive or de facto termination, 6. Whether the Petitioner is entitled to the reliefs sought. *Whether the Petition offends the doctrine of constitutional avoidance* 1. The Respondent has argued that the present Petition is incompetent on the ground that it constitutionalises an ordinary employment dispute arising from an ongoing disciplinary process. According to the Respondent, the matters complained of are adequately regulated under the Employment Act and ought to have been pursued within the statutory framework governing employer-employee relations rather than by way of a constitutional petition. 2. The doctrine of constitutional avoidance is now firmly embedded in our jurisprudence. The principle is that where a dispute can properly be resolved on another legal basis, particularly where Parliament has enacted legislation to give effect to a constitutional right, courts should ordinarily decline to determine the matter as a constitutional question. This principle was affirmed by the Court of Appeal cited by the Respondent, ***Sumayya Athmani Hassan v Paul Masinde Simidi & another* [2019] KECA 107 (KLR)** and by the Supreme Court in ***Communications Commission of Kenya & 5 Others v Royal Media Services Limited & 5 Others* [2014] eKLR**. 3. In the instant case, the Petitioner alleges that the Respondent unlawfully accessed and relied upon her private M-Pesa transaction records in violation of Article 31 of the Constitution and the Data Protection Act, 2019, thereby rendering the disciplinary process constitutionally infirm. She further alleges violations of her rights under Articles 41, 47, 48 and 50 of the Constitution arising from the manner in which the disciplinary process was undertaken and the Respondent’s conduct following the interim orders issued by this Court. 4. In my view, these allegations raise questions that transcend the ordinary employer-employee relationship. In particular, the Court is invited to determine whether the Respondent's acquisition and use of the Petitioner's alleged financial information infringed her constitutional right to privacy and whether the impugned disciplinary process complied with constitutional standards of fairness. Those questions cannot be dismissed as merely workplace or statutory grievances. 5. While certain aspects of the dispute fall within the framework of the Employment Act, the Court is satisfied that the Petition discloses bona fide constitutional issues warranting determination. The Respondent's objection founded on the doctrine of constitutional avoidance therefore fails, and the Court shall proceed to consider the Petition on the merits. *Whether the Respondent violated the Petitioner’s right to privacy under Article 31 of the Constitution and the Data Protection Act, 2019* 1. The Petitioner contends that the Respondent violated her constitutional right to privacy by unlawfully accessing and relying on her M-Pesa transaction records without her knowledge, consent or the authority of a court order. She argues that the information formed the foundation of the disciplinary proceedings and that the entire process was therefore tainted by illegality. 2. The Respondent, on the other hand, maintains that it neither accessed the Petitioner's mobile phone nor obtained her M-Pesa records from Safaricom PLC or any other service provider. The Respondent avers that the information regarding the impugned transactions was voluntarily disclosed by suppliers and transporters who had themselves transferred money to the Petitioner and subsequently raised concerns regarding a possible conflict of interest. According to the Respondent, it merely received and acted upon information supplied by third parties and did not unlawfully collect or process the Petitioner's personal data. 3. Article 31 of the Constitution guarantees every person the right to privacy, including the right not to have information relating to their private affairs unnecessarily required or revealed. Similarly, the Data Protection Act, 2019 regulates the collection, processing and use of personal data and seeks to safeguard individuals against unlawful interference with their informational privacy. 4. The Court is therefore called upon to establish whether the evidence before it demonstrates that the Respondent unlawfully accessed or processed the Petitioner's M-Pesa records. 5. The burden of proving the alleged violation rested upon the Petitioner. Apart from the assertion that the Respondent relied on her M-Pesa transactions during the disciplinary process, no evidence has been placed before the Court demonstrating that the Respondent obtained the Petitioner's M-Pesa statements from Safaricom, accessed her mobile device, intercepted her communications or otherwise procured her financial records through unlawful means. On the contrary, the Respondent's explanation is that the information originated from third-party suppliers and transporters who were themselves parties to the transactions and voluntarily disclosed the payments made to the Petitioner. 6. There is a clear distinction between unlawfully accessing a person's confidential financial records and receiving information voluntarily disclosed by persons who participated in the transactions. A person who transfers money to another is, by the very nature of the transaction, aware of the payment made and is at liberty to disclose that fact. Such disclosure cannot, without more, be equated with unlawful access to another person's private financial records. 7. The Petitioner did not adduce evidence to demonstrate that the Respondent obtained her complete M-Pesa statements or other confidential financial records or relied on information freely obtained from third parties with lawful authority to share such information. Neither was evidence placed before the Court to establish any act of unlawful collection or processing contrary to the provisions of the Data Protection Act, 2019. 8. Based on the foregoing, I find that the Petitioner has not discharged the burden of proving that the Respondent unlawfully accessed or processed her personal financial data in violation of Article 31 of the Constitution or the Data Protection Act, 2019. *Whether the disciplinary process complied with Articles 41 and 47 of the Constitution and Section 41 of the Employment Act* 1. The Petitioner contends that the disciplinary process was procedurally unfair. Her complaint is that she was required to respond to the show cause letter within twenty-four hours but was compelled to prepare her response immediately upon being served with the letter at a public restaurant in the presence of her supervisor. She also avers that she was subjected to a disciplinary hearing without being supplied with the material necessary to prepare her defence and also, that she was denied access to the minutes of the disciplinary proceedings despite being required to acknowledge her attendance. 2. The Respondent, on the other hand, maintains that the meeting held at Msafiri Hotel was a preliminary fact-finding engagement and not a disciplinary hearing. It further contends that the Petitioner was served with a detailed show cause letter, responded to the allegations, attended the disciplinary hearing after it had been rescheduled to afford her additional time and was accorded a full opportunity to present her case. According to the Respondent, the process satisfied the requirements of Articles 41 and 47 of the Constitution and section 41 of the Employment Act. 3. Section 41 of the Employment Act provides the minimum procedural safeguards that an employer must observe before taking disciplinary action against an employee. Those safeguards include notifying the employee of the allegations, affording the employee adequate time and opportunity to respond, allowing the employee to be accompanied by a fellow employee or shop floor union representative where applicable, and considering the employee's representations before making a decision. These statutory requirements are reinforced by Articles 41 and 47 of the Constitution, which guarantee fair labour practices and fair administrative action. 4. From the material placed before the Court, it is common ground that the Petitioner was issued with a show cause letter dated 10th December 2025 which she responded to. It is also not disputed that the disciplinary hearing was initially scheduled for 20th December 2025 but was subsequently rescheduled to 22nd December 2025. Although the Respondent avers that this afforded the Petitioner additional time to prepare, the Petitioner states that she actually attended the hearing which was on a Saturday, but was upon arrival informed that it had been postponed to Monday the 22nd. The Petitioner attended the disciplinary hearing as rescheduled. 5. The Petitioner however alleges that she was not supplied with the investigation report or the documents upon which the Respondent intended to rely before the disciplinary hearing. The Respondent does not dispute that those documents were not supplied before the hearing. Its position is that a show cause letter is only intended to notify an employee of the allegations and that supporting evidence is appropriately addressed during the disciplinary process. 6. Procedural fairness is not satisfied merely because an employee is invited to attend a disciplinary hearing. The right to be heard must be real and effective. An employee cannot reasonably be expected to answer allegations founded on documentary or investigative material that has not been disclosed. Fairness requires that an employee be furnished with sufficient particulars and the material intended to be relied upon well in advance to enable meaningful preparation of a defence, both for the notice to show cause and the hearing. See decisions in **Akala v Kenya Commercial Bank Ltd Ombajo v Institute of Certified Public Accountants of Kenya** (supra). 7. The Court is equally concerned by the Petitioner's uncontroverted assertion that she was required to prepare and submit her written response immediately at a public restaurant while in the presence of her supervisor. Although the meeting may have been intended as a preliminary engagement, such circumstances were not conducive to the preparation of a considered response to allegations capable of attracting serious disciplinary consequences. An employee facing allegations of misconduct ought to be afforded a reasonable opportunity to reflect upon the accusations and prepare a response in circumstances free from undue pressure. Such employee should be free to obtain further information or evidence, seek counsel or professional advice before responding to the show cause letter. Without such freedom, any subsequent outcome from such process would be tainted as the preliminary process inevitably affects the final outcome. 8. While the Court appreciates that the Respondent was entitled to investigate allegations touching on the Petitioner's conduct, the manner in which the preliminary process was undertaken in this case fell short of the procedural fairness contemplated by Articles 41 and 47 of the Constitution and section 41 of the Employment Act. The short timeline, the circumstances under which the response was prepared and the failure to disclose the material intended to be relied upon undermined the Petitioner's right to effectively answer the allegations. 9. Accordingly, the Court finds that although the Respondent was entitled to commence disciplinary proceedings against the Petitioner, the process adopted did not comply with the constitutional and statutory requirements of procedural fairness. *Whether the Respondent’s conduct following the Court’s orders of 9th January 2026 amounted to constructive or de facto termination* 1. The Petitioner contends that despite the court issuing interim orders on 9th January 2026 preserving the status quo, the Respondent removed her from her position and assigned her duties to another employee, forcing her to remain idle in a boardroom without any meaningful responsibilities and subsequently placing her on compulsory leave. That the Respondent thereafter denied her access to the Respondent's premises. She argues that those actions amounted to constructive or de facto termination notwithstanding the absence of a formal letter of termination. 2. On its part, the Respondent denied those allegations and maintained that the Petitioner's employment has never been terminated. It contends that no letter of termination or dismissal has ever been issued and that the Petitioner has at all material times remained its employee, continued to receive her salary and employment benefits and remained subject to an ongoing disciplinary process. 3. Constructive dismissal arises where an employer's conduct demonstrates an intention to be no longer bound by the essential terms of the employment contract, thereby leaving the employee with no reasonable option but to regard the contract as terminated. 4. From the evidence on record, it is clear that no formal letter terminating the Petitioner's employment has been issued. The evidence also shows that the employment relationship continued to subsist, with the Respondent maintaining that the disciplinary process had not been concluded. 5. Constructive dismissal ordinarily presupposes that the employment relationship has come to an end as a consequence of the employer's conduct. Evidently, the Petitioner herein continued to assert her right to remain in employment, objected to being placed on compulsory leave and repeatedly demanded to resume her duties. 6. In those circumstances, the Court is not persuaded that the evidence establishes a case of constructive or de facto termination. 7. Accordingly, the Court finds that the Petitioner's claim of constructive or de facto termination has not been proved. *Whether the Petitioner is entitled to the reliefs sought* 1. Having found that the Petitioner failed to prove that the Respondent unlawfully accessed or processed her personal financial data in violation of Article 31 of the Constitution and the Data Protection Act, 2019, the declarations sought in that regard cannot issue. 2. The Court has, however, found that the procedure adopted did not comply with the requirements of Articles 41 and 47 of the Constitution, nor was the process compliant with section 41 of the Employment Act. As such, the Petitioner’s right to fair labour practices and fair administrative action was infringed. 3. The Court has also found that the evidence does not establish that the Petitioner's employment was terminated, whether factually, constructively or de facto. Accordingly, the reliefs predicated upon a finding of termination are not available. 4. With regard to the prayers seeking orders of certiorari to quash the show cause letter and the disciplinary proceedings, the same cannot issue as a show cause letter is an essential component of a lawful disciplinary process. In any case, the complaint by the Petitioner does not lie on the issuance of the show cause letter as what she complained about is the process and venue of its issuance and the manner in which she was compelled to respond to it. In the circumstances, it would not be appropriate to quash the entire process of the disciplinary proceedings. Instead, the interests of justice would be better served by directing the Respondent, should it still deem it necessary to proceed with the disciplinary process, to commence the process from the stage of the show cause letter and to proceed in strict compliance with the Constitution, the Employment Act and the principles of procedural fairness. For clarity, the court finds that the process after issuance of the notice to show cause was in breach of fair administrative action as envisaged in both Article 41 and 47 of the Constitution and section 41 of the Act. 5. Consequently, the Court makes the following orders: - 6. A declaration is hereby issued that the Respondent violated the Petitioner's rights to fair labour practices under Article 41 of the Constitution and fair administrative action under Article 47 of the Constitution in the manner in which it conducted the disciplinary process. 7. The prayer for a declaration that the Respondent violated the Petitioner's right to privacy under Article 31 of the Constitution and the Data Protection Act, 2019 is declined. 8. The prayers seeking declarations that the show cause letter was null and void ab initio are declined. 9. The prayers for orders of certiorari quashing the show cause letter and the disciplinary proceedings are declined. 10. Should the Respondent elect to continue with the disciplinary process, it shall commence the process afresh from the response to the show cause letter and conduct the proceedings in full compliance with Articles 41 and 47 of the Constitution and section 41 of the Employment Act. 11. The claim that the Petitioner's employment was terminated constructively or de facto is declined. 12. As the Petition has succeeded only in part, each party shall bear its own costs. **DATED, DELIVERED AND SIGNED** **ON THIS 16TH DAY OF JULY, 2026.** **M. ONYANGO** **JUDGE**