https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1966

Odiwour v Savannah Brands Company Ltd (Cause E747 of 2022) [2026] KEELRC 1966 (KLR) (10 July 2026) (Judgment) Neutral citation: [2026] KEELRC 1966 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nairobi Cause E747 of 2022 NJ Abuodha, J July 10, 2026 Between Velma Apondi Odiwour Claimant and Savannah Brands Company Limited Respondent Judgment 1.The Claimant through his Memorandum of Claim dated 21st September, 2022 pleaded inter alia as follows: -a.That by a letter of appointment dated 15th March, 2021, she was employed by the Respondent to the position of Head of on-Trade at a monthly gross salary of Kshs 180,000/= which was subject to annual salary increments and as at the year 2022 her gross salary was Kshs 248,837/=. That she was entitled to bonus to be paid monthly or quarterly, monthly airtime totaling Kshs 3,000/= and her fuel expenses would be catered for by the Respondent.b.That under clause 6 of the letter of Appointment she was required to act in accordance with the instructions and directions of her Line Manager (Head of Commercial) as well as to safeguard the interest of the Respondent.c.That the Respondent in blatant breach of the terms of the letter of appointment made deductions totaling Kshs 48,837/= from her salary in the month of June 2022 without seeking her consent which to date the Respondent was yet to refund despite several demands to do so.d.That notwithstanding the above she continued to render her duties diligently and was recognized for the same through numerous awards the Respondent company accorded her.e.That on 12th July, 2022 while she was on leave much to her surprise she was issued with a Notice to Show cause letter wherein she was accused of several malpractices. That the Respondent demanded that she responds to the said show cause on or before 13th July, 2022. That despite the short notice vide the letter dated 12th July, 2022 the Claimant extensively responded to each and every allegation contained in the show cause letter.f.That in summary she responded to the Moov Bistro-Alchemist Incident where she was accused of transferring stocks from Moov Bistro to Alchemist without clearing with the finance team, issued Alchemist with an invoice which invoice should have originated from the finance and warehouse team and digitally altered the Moov Bistro invoice.g.That she also responded on the Brownstone Incident which she was accused of failure to inform the Warehouse and Finance team of stock picked from Brownstone and delayed to return the stock picked to the warehouse as well as returned less stock. That she responded on the Twinzone-Eltoro incident as well.h.That on 19th July, 2022 she was invited for a disciplinary hearing that was to be conducted on 20th July,2022. That she attended the disciplinary hearing and she reiterated her response set out earlier. That despite rebutting all the allegations against her the Respondent proceeded to issue her with a summary dismissal Letter dated 21st July, 2022 claiming her response was unsatisfactory.i.That the decision by the Respondent to summarily dismiss her was substantively unjustified and procedurally flawed hence unfair which process was premeditated and a sham. That the Respondent acted in breach of Article 27 of the Constitution by discriminating her as she was subjected to a different standard as compared to Joyce Omollo who also faced similar accusations but was not terminated.j.That the Respondent damaged her professional reputation by portraying her as an unfaithful employee to her other employee. 2.The Claimant in the upshot prayed for the following against the Respondents: -a.A declaration that the decision by the Respondent to terminate the Claimant’s employment was substantively unjustified and procedurally unfair.b.A declaration that the termination of the Claimant’s employment was wrongful, unfair and/or unlawful.c.A declaration that the Respondent breached the Claimant’s fundamental rights as enshrined in the Bill of Rights, in particular his rights to fair labour practices, equality and freedom from discrimination, correction or deletion of untrue information, human dignity and right to fair hearing.d.General damages totaling to Kshs 2,500,000/= for breach of the Claimant’s fundamental rights under the Constitution.e.12 months’ salary totaling to Kshs 2,986,044/= for unfair termination of contract of employment.f.General damages for pain mental anguish, torture and trauma resulting from the inhuman treatment accorded to the Claimant by the Respondent.g.Reimbursement of deductions made unlawfully totaling to Kshs 48,837/=h.3 Months’ Notice Pay totaling to Kshs 746,511/=i.25.78 leave pay totaling to Kshs 165.728.10/=j.Unpaid bonus for May & June 2022 totaling to Kshs 71,225/=k.Unpaid salary for July 2022 totaling tom Kshs 248,847/=l.Unpaid July airtime totaling Kshs 3,000/=m.Costs and Interests of the suit.n.Certificate of Service. 3.The Respondent filed its memorandum of response dated 21st March, 2023 and averred inter alia: -i.That the Respondent admitted to the terms of employment of the Claimant but specified that the Claimant’s gross salary was Kshs 200,000/= and fuel allowance of Kshs 48,837/= making it Kshs 248,837/= That she was additionally entitled to overtime allowance of Kshs 3,000/= to be distributed monthly and other additional benefits as set out in her contract of Employment.ii.That pursuant to clause 15 of the Claimant’s contract of employment due to the nature of the Respondent’s business she was expected to always act with due diligence and utmost honesty and was required to report such matters of concern that come to her attention to the Head of Commercial including any acts of misconduct, breach of the company rules and policies by any member of staff.iii.That the Claimant was justifiably stripped off her Fuel Allowance for the said month on account of unathorized use of the Respondent’s company motor vehicle for her own personal use as opposed to authorized company business trips.iv.That although the Claimant was occasionally awarded and rewarded by the Respondent, she was not immune to disciplinary proceedings in respect of acts of misconduct by virtue of such awards and the Respondent was not precluded from taking up disciplinary action on account of any future acts of misconduct.v.That the commencement of disciplinary proceedings against the Claimant while she was on leave was merely coincidental and there was nothing sinister or ill motivated by such action by the Respondent. In any event the Respondent contends that disciplinary action may be commenced at any time at the sole discretion of the Respondent.vi.That the Claimant was called upon to answer to allegations of misconduct vide show cause letter dated 12th July, 2022 as per the allegations set out thereon and was required to respond to the same on 13th July, 2022. That she never protested the period within which she was required to respond or request for more time to respond and as she confirms she extensively responded to the show cause letter it demonstrates she had adequate time to tender her response. That she responded to the same show cause letter way before the time given on 13th July, 2022 despite being on leave.vii.That the Respondent in the show cause letter highlighted three broad allegations and made specific particulars of the allegations in respect of 3 incidents to wit;- Moov Bistro-Alchemist incident, Brownstone incident and Twinzone incident as stated in her claim.viii.That the Respondent’s stock picking policy communicated vide a memo dated 5th April, 2022 circulated to all staff the said policy expressly forbids transfer of stocks between outlets under any circumstances and that any uplifting or removal of stock from any outlet is construed as fraudulent activity. Further where stock is to be returned to the Respondent’s warehouse apart from units with quality issues that can be brought back by the Respondent’s staff, proper and formal communication needs to be done to the logistics team and accounts team so that such stock returns can be facilitated.ix.That she responded to the allegations levelled against her vide the letter dated 12th July, 2022 which response was unsatisfactory as a result of which she was invited to a disciplinary hearing vide letter dated 19th July, 2022. That vide the summary dismissal letter dated 21st July, 2022 the Respondent considered each and every allegation made against her responses and communicated its findings on all allegations against her which were found to be true.x.That in addition to the findings on the allegations and in response to the Claimant’s assertion that she was in possession of an invoice book which she would put to use the Respondent found that there were no supporting documentation to support the same and that the said invoice book was in fact being used by one Mr. Faustine Mbogo. That the same was not an additional allegation as alluded by the Claimant but it was a finding by the Respondent on an issue raised by the Claimant in her response to the allegations against her.xi.That all reasons informing the termination of her employment were in the circumstances and to the extent communicated justifiable and reasonable to trigger disciplinary action against her and the subsequent summary dismissal from duty. That the process leading to her termination was procedurally fair.xii.That the Respondent denied any breach of Article 27 of the Constitution and alleged that the Claimant was a more senior employee to Joyce Omollo who upon obtaining guidance from her to obtain a proper invoice in the name of Alchemist for onward payment she directed and instructed her junior to manually edit and/or alter the invoice therefore encouraging the violation of company policies and practices in contravention of clause 15 of her employment contract and as such there was no perceived discrimination at all in termination of the services of the Claimant as she was supposed to set a good example to junior staff.xiii.That there was no discrimination in the treatment afforded to the her and the said Joyce Omollo as both employees were subjected to disciplinary action wherein the said Joyce was issued with a warning letter after considering and weighing all the facts and circumstances around the incident.xiv.That the termination of the Claimant was substantively and procedurally fair and there was no evidence of pre-meditation as alleged by the Claimant. The Respondent denied injuring the reputation of the Claimant in any way as alleged or otherwise as the findings made in the summary dismissal letter were based on factual findings of violation of company policies and breach of trust on the part of the Claimant some of which were predicted on her own admission.xv.The Respondent prayed that the Claimant’s suit be dismissed forthwith in its entirety with cost. Evidence 4.The Claimants’ case was heard on 23rd January, 2025 where she called three witnesses while Respondent’s case was partly heard on the said date where two witnesses were heard and the last witness heard on 11th June, 2025. CW1 was Alex Macharia adopted his witness statement written on 17th October, 2022, as his evidence in chief and in cross-examination stated that the allegations involved movement of stock and there were necessary documents for movement of stock from the company to the outlets. One was an invoice and the other delivery note. That a customer signs delivery notes to acknowledge receipt. That when goods are returned by the customer there is an accompanying document known as the goods return note. 5.He confirmed that notes have to be approved by the Finance and stores but this was not his area. That he received the Claimant’s communication/ call to move some goods from Moov Bistro to Alchemist. That there was no requirement that the request be in writing and that it could be oral. That this was an emergency and he gave the approval and he was not aware if finance and warehouse were notified of the movement of stock from Moov Bistro to Alchemist. 6.He stated that payments by customers were made against invoice. He was not aware if an invoice was issued to Alchemist or if the same invoice to Moov Bistro was the same one presented to Alchemist. That movement of stock from one outlet to another could be done by sales person and the payment would be done by the receiving outlet. 7.He stated that he was not aware if the invoice to Moov Bistro was manually altered and given to Alchemist to pay. 8.In reexamination he clarified that he was the head of commercial sales and marketing. That the Claimant called him and it was on Sunday. That he was the Claimant’s supervisor. He approved movement of stock because Alchemist had no stock. That the sell-out program allowed moving stock from where it was not moving to where it was moving. 9.He clarified that the payment was done by Alchemist and he left the Respondent in June 2022 and there was no documented policy on stock movement. 10.The second Claimant witness was the Claimant herself. She adopted her witness statement written on October, 2022 and the bundle of documents filed as her evidence in chief. In cross examination she stated that the allegations against her were on movement of stock. That each customer would have an account once on boarded and that orders were processed through customer account. That on movement of stock from Moov Bistro to Alchemist she notified her line manager of the intention to move stock and there was no policy that she was to inform warehouse. 11.That on Twinzone incident she attached email where she notified Finance and warehouse. That the policy came later and was not there during Alchemist incident. She admitted that she altered the invoice from Moov Bistro and gave it to Alchemist to pay. That finance did not generate an independent invoice for them to pay on account of moved stock. That the invoice was altered by Joyce Omollo the account manager. 12.On the additional list of documents, she admitted to altering the invoice to Alchemist and that Alchemist could not pay against the Moov Bistro invoice. They wanted their own invoice. That Joyce informed her they refused to pay. That the goods to Alchemist were not accompanied by a delivery note. 13.On Brownstone incident where she was accused of not notifying warehouse and finance about repossessing the stock from Brownstone she stated that she secured the stock in her house for the weekend as the warehouse was closed. 14.On the transcript the stock was at her place for three weeks and that she did not generate goods return note for Brownstone. She denied moving stock without following proper channels for the Twinzone incident. That there was oversight when she transferred stock which was a conclusion. 15.She confirmed that she was issued with a show cause letter which she responded to but was given a short time to respond. That she was on leave and asked for more time. That she responded to the show cause, attended the disciplinary hearing and that she had been informed to come with her witness and further that she never asked for more time to prepare. 16.She confirmed that at the hearing she relied on her written response and she was not given a chance to appeal and she did not appeal. That she never raised the issue of bias in the panel. That her witness would confirm intention to replace her but she did not mention this in her witness statement. That she was defamed by the Respondent’s CEO who was not a party in the proceedings. 17.She confirmed that she was provided with evidence of what was said which evidence was at page 49 of her bundle of documents. That she was discriminated by being treated differently form Joyce who underwent disciplinary process on the Alchemist issue. That Joyce was issued with a warning letter and she attended her disciplinary hearing. 18.She confirmed that her contract provided for termination clause. That she lost a child soon after her termination but she did not specify the trauma she suffered. That the notice period in the contract was one month and she claimed bonus as there was a formula for calculating the bonus. That she sought reimbursement of transfer expenses. 19.In reexamination CW2 clarified that the dismissal affected her as she lost her pregnancy because she got into financial instability. That she was not informed of the deduction prior to the same being made. That she was told it was transport allowance and that she was never paid her terminal dues. 20.She clarified that she sought approval from her line Manager Alex. That there was no policy or system of approval and one could get approval from line manager. That she did not inform the warehouse but informed the account manager. That alteration was done by Joyce. That payment of moved stock was time sensitive. 21.She clarified that Alchemist declined to make payment and when Joyce told her she altered the invoice in her laptop and sent it to Alchemist and they paid. That Chrispine was the warehouse manager. That she did not return the stock because it was Saturday afternoon and the warehouse was closed. That the second stock which stayed for three weeks came from Riara. That she did not keep it in her house. That the Respondent was aware of transfer to Eltoro. 22.The third Claimant’s witness was Catherine Wambui CW3 herein who adopted her witness statement sworn on 15th June, 2023 as her evidence in chief. She stated that she has also filed a case against the Respondent. That there was a meeting after the termination of the Claimant which was all marketing staff meeting. 23.She stated that the CEO uttered the words she quoted. That the statement implied that the Claimant was guilty without any evidence. That she did not know if the Claimant digitally altered the invoice and she did not see any integrity issue with altering the invoice. That the Claimant pleaded defamation. 24.In reexamination CW3 clarified that she attended several staff meetings and the CEO announced the termination of the Claimant which should be by the HR. 25.The Respondent on the other hard called its first witness Chrispine Okinge herein referred as RW1. He stated that he worked for the Respondent as procurement manager and before he was the warehouse manager. He adopted his witness statement and documents filed in response as his evidence in chief. 26.In cross examination he stated that he was contracted to investigated the incident. That he could not remember when. The Respondent had a standard operating procedure which was customer onboarding work flow dated 28th August, 2022, Order dispatch workflow and return to warehouse. 27.He confirmed that the documents were prepared after the termination of the Claimant. That he was not aware if Alchemist made payment but was aware of Brownstone incident. That the Claimant returned goods from Brownstone with some discrepancies. 28.He stated that he did not know it was Grace who said there was lack of proper controls and further that he did not work in Finance. That Joyce was not dismissed but was warned and became a witness. In reexamination he clarified that he was not informed of the picking of the stock in Brownstone incident. 29.The second Respondent witness was Joyce Omollo who worked for the Respondent as a territory manager testified adopting her witness statement as her evidence in chief. 30.In cross examination she stated that she knew the Claimant for they were accused of similar allegations. That she was dismissed but she went through disciplinary process. She stated that Alchemist ran low on stock and she called the Claimant the same night and she said she was told they would seek approval from Alex Macharia. That the Claimant told her they got approval from Alex. 31.She stated that Alchemist needed an invoice in their name and she cancelled the invoice and that it was the Claimant who told her to cancel the Moov Invoice and write the name of Alchemist which they declined as a handwritten invoice. That they needed the payment urgently and she called the Claimant who digitally altered the invoice and the invoice was paid. That she was present at the disciplinary hearing of 20th July, 2022 and received the warning letter prepared on 12th July, 2022. 32.In reexamination she clarified that there was no delivery note for Alchemist incident. That they only had Moov Bristro invoice. That the payment of Alchemist was against the altered invoice. That Finance was responsible for issuing invoices. That she was the first to go through disciplinary hearing and by 20th July she had already received her warning letter. 33.The third Respondent’s witness was Caroline Gichure the head of compliance at the Respondent. She adopted her witness written on 1st April, 2025 as her evidence in chief. That she was in charge of ensuring the Respondent’s regulations and policies were followed. 34.In cross examination she stated that she joined the Respondent in 2/6/2022 hence she knew the Claimant. That she also knew Joyce Omollo who did not have similar allegations as the Claimant. That both went through disciplinary hearing on 20th July, 2022 but Joyce was not dismissed but warned. That they attended separately but same day. 35.She stated that a warning letter should be issued at the conclusion of disciplinary hearing but in this case the warning letter was before hearing. That from the transcription Joyce was not entirely innocent. That she was aware discrimination was treating employees differently. That she would not know if a meeting was held on 1st August after the Claimant’s termination. She stated that she was aware of the Respondent’s exit policy. That the Claimant’s dismissal was involuntary and she was not aware if a review board was formed. 36.She stated that there was policy on concurrence before transfer of stock. That it was a communication that was shared but not policy. That approval from line manager was not what the memo was saying. That Alex was the Claimant’s supervisor. That the onboarding workflow was after the Claimant’s termination. That the documents were prepared after the Claimant was dismissed. That the Respondent received payment from Alchemist and that the Claimant never informed the warehouse team that she took the stock. That there was communication guiding that. 37.She stated that she was not sure the Claimant said she informed Esther who was head of receivables. That she was not sure if the Claimant said Faustine gave her the booklet but the booklet was issued to Faustine. That the Claimant was entitled to bonus but this was dependant. 38.In reexamination she clarified that the Claimant never mentioned Faustine Mbogo in her response to show cause letter. It was the finding which mentioned Faustine Mbogo. That Joyce faced one allegation which she reported to the Claimant as her supervisor to deal. 39.She clarified that she was not sure of the outcome of Joyce but she must have been warned. That the transcript filed by the Claimant was on the deliberations after the panel hearing. That the Claimant was not there. That she was not aware if termination review board was formed. That there was memo on policy stocks from outlets and approvals could be sought through email. 40.She clarified that the invoice that was issued was by the Claimant who forged an invoice for Bistro but a proper invoice was done later. That she had not seen any evidence that the Claimant notified the warehouse team. That Eltoro was not to be supplied because they had outstanding invoice. That bonus differs from department to department. Claimants’ Submissions 41.The Claimant’s advocates Obura Mbeche and company Advocates filed written submissions dated 11th July, 2025 and on the issue of whether the Claimant was discriminated against by the Respondent counsel relied on article 27 of the Constitution of Kenya as read with Section 5(3) of the Employment Act which prohibited direct and indirect discrimination on the ground of race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth. Counsel also relied on the Black’s Law Dictionary, 9th Edition and among others the case of BArclays Bank Of Kenya Ltd & Another V Gladys Muthoni & 20 Others [2018] eKLR on definition of discrimination. 42.Counsel submitted that the Respondent unreasonably treated the Claimant differently to warrant a finding by this Honourable Court that there was discrimination because of the following reasons:a.By a Summary Dismissal letter dated 21stJuly,2022 the Claimant was dismissed for the offence of moving stocks from one Customer to another. This is the same offence that Joyce Omollo was also accused of as confirmed by her during cross-examination.b.Whereas, the Claimant was dismissed from work Joyce Omollo was never dismissed but was only issued with a warning letter.c.That the said warning letter had been prepared by the Respondent on 12th July 2022 as evidenced by the email dated 12th July 2022. As per the said email, the then Human Resource Officer Christine Opiyo wrote to Caroline Gichure and Jeremiah Njuguna attaching a copy of the warning letter to be issued to Joyce Omollo.d.Whereas the warning letter was prepared on 12th July 2022, Caroline Gichure testified that Joyce Omollo disciplinary hearing was held on 20th July 2022 which is the same day that also the Claimant’s disciplinary hearing was held. It follows that the warning letter was prepared 8 days before her disciplinary hearing. The question that begs to be answered what was the rationale of having the disciplinary hearing if the warning letter had already been prepared?e.The discrimination against the Claimant was further confirmed during the Disciplinary Panel deliberations after the disciplinary hearing was held on 20th July 2022. Counsel highlighted part of the deliberations for this Honourable Court perusal:“Christine: We have two options for Velma either termination or two weeks suspension.Ken: There is nothing like that let’s just deal with this once and for all. We prosecuteVelma and use Joyce as a witness.Carol: But Ken we have nothing solid as the payment was done in favour of Savannah Brands, unless we use forgery but that also wont’s hold as we were still paid the money.Christine: We have to take a vote then.Ken: Let’s just terminate Velma as Joyce has already had a soft landing with a warning letter.Jeremiah: I agree.” 43.Counsel submitted that from the above discussion, it is crystal clear that Caroline Gichure who testified before the Honourable Court was of the view that there was nothing solid to warrant dismissal of the Claimant. It was also clear that the Panelists did not agree on the decision to take. The decision was made by Ken and Jeremiah only because a warning letter had already been issued to Joyce Omollo. 44.Counsel reiterated that this was a classic case of discrimination against the Claimant. Her fate had been sealed even before the disciplinary hearing was conducted since Joyce Omollo had a warning letter prepared before the hearing. Why did the Respondent Company similarly not prepare a warning letter to the Claimant in advance as they did to Joyce Omollo? The Respondent Company in response alleged that there was no discrimination because the Claimant was a senior employee. Counsel submitted that the mere fact that the Claimant was senior employee cannot be a justification to treat the claimant differently. That the action of treating persons differently is what the Court of Appeal in the case of Barclays Bank Of Kenya Ltd & Another V Gladys Muthoni & 20 Others [SUPRA] frowned upon. In addition, counsel submitted that the Claimant was discriminated by not being paid fuel allowance for the month of June 2022 yet other employees in similar job group were being paid the same. Counsel relied on the case of Olake v Kituo Cha Sheria (Legal Advice Centre) (Cause 22 of 2020) [2023] KEELRC 1158 (KLR) (16 May 2023) (Judgment) where the Court while finding that the Claimant had been discriminated by not being paid acting allowance as other employees. That the totality of the foregoing, was that the Respondent’s treatment towards the Claimant was discriminative and unlawful. 45.On the issue of whether the procedure followed by the Respondent was fair counsel relied on section 45 of the Employment Act on what amounts to unfair termination and submitted that the procedure by the Respondent was unfair and unlawful for the reason that the termination was not in compliance with the Respondent’s own Exit Policy. That is to say; Caroline Gichure confirmed that the Respondent Company had an Exit Policy and as per the said Exit Policy there were two kinds of dismissal which was either voluntary dismissal and involuntary dismissal. Involuntary dismissal comprised of dismissal due to an employee’s misconduct. Accordingly, the Claimant’s dismissal was an involuntary dismissal as it was on account of alleged misconduct. 46.Counsel submitted that the Exit Policy provided that before an action is taken to involuntarily discharge an employee, the employee’s manager must request a review by the termination review board which consisted of the CEO, a representative from HR and the employee’s department head. The termination review board role was to review the circumstances and determine if discharge is warranted. 47.Counsel therefore submitted that during cross examination, Caroline Gichure indicated that she was not aware if the Termination Review Board was formed. She confirmed that no evidence had been brought before court to show if it was ever formed. 48.Counsel submitted that the Board was not formed because the Claimant disciplinary hearing was held on 20th July 2022 and she was issued with a summary dismissal letter the next day on 21st July 2022. Accordingly, counsel submitted that the dismissal was not in compliance with their own policy and in that regard relied on the case of Njuguna v Times U Sacco Limited [2024] KEELRC 1249 (KLR). 49.Counsel further submitted that the disciplinary process was rushed in that the Claimant testified that on or about 11th July 2022 she applied for her annual leave but while still away on leave, she was issued with a Notice to Show Cause Letter dated 12th July 2022 which the Respondent Company demanded that she respond to the same on the next day 13th July 2022. That via an email dated 12th July 2022 the Claimant wrote to Christine Opiyo the then Human Resource requesting for the matter to be dealt once she resumes from leave and that the Respondent never bothered to respond to the said email which forced the Claimant while still away on leave to respond to the Show Cause letter via a response dated 12th July 2022. The question that begged to be answered was why the Respondent approved the Claimant annual leave on 11th July 2022, only to issue her with a Show Cause letter the next date on 12th July 2022? Further, why the Respondent urgently requested the Claimant to furnish a response while she was still on leave yet annual leave was a right recognized under Section 28 of the Employment Act? That following the Claimant response to the Show Cause Letter, the Claimant was taken through a rushed process which took only 9 days as she was issued with a summary dismissal letter on 21st July 2022 which was nine days after the show cause letter. 50.Counsel submitted that prior to her dismissal, the Claimant was taken through a disciplinary hearing held on 20th July 2022 and from, Disciplinary Panel discussions attached to the Claimant’s 2nd further list of documents dated 30th May 2024 it was clear that the Respondent Company did not consider each and every allegation levelled against the Claimant. Additionally, the decision made by the Respondent was not a unanimous decision. The Respondent rushed to ensure a decision had been made on 21st July 2022 although there was no consensus in the decision. 51.Thirdly the Respondent Company withheld the Claimant’s terminal dues despite the Claimant having cleared with the Company and several demands on the same and that it took the intervention of the Court to give a directive that the Respondent should pay the Claimant’s terminal dues that Respondent Company saw it fit to pay the Claimant part of her terminal dues on 17th February 2025 which was three years after her dismissal. Even then, the Respondent failed to pay the full terminal dues. The Respondent paid a sum of Kshs 27,500 as bonus yet the total amount payable is Kshs71,225 and the Respondent’s failure to pay the Claimant her terminal dues promptly was malicious and unlawful. 52.Fourthly on certificate of service counsel submitted that certificate of service was a mandatory document that employers must provide to employees upon termination of employment, as per Section 51 of the Employment Act and to date, the Respondent was yet to issue the Claimant with a Certificate of Service despite having cleared with the Company. 53.On the issue of whether the Claimant was defamed by the Respondent counsel relied on Winfield in J.A Jolowicz. and T. Ellis Lewis- Winfield on Tort 8th Edition and the case of Wycliffe A Swanya v Toyota East Africa Ltd & Anor, Nairobi Court of Appeal No. 70 of 2008 on definition of defamation. Counsel submitted that with the above in mind, Catherine Wambui one of the Claimant’s witnesses testified to the effect that on or about 1st August 2022 the Respondent’s CEO (Alexandra Chappatte) announced at a Head of Sales meeting attended by around 60 employees that the Claimant was dismissed due to integrity issues. It was the Claimant’s submissions that she reached out to the Respondent’s CEO via a WhatsApp message to find out why she had uttered the said statement and the CEO responded stating she said so because the claimant had stolen from them. Counsel submitted that the above statements were defamatory because they were false, malicious and relied on the case of Miguna Miguna v Standard Group Limited & 4 others [2017] eKLR, on what constitutes a defamatory statement. That the statement by Catherine was defamatory towards the Claimant as the words in their ordinary meaning brought to ridicule, the Claimant. 54.On the issue of whether there were valid reasons to dismiss the Claimant counsel relied on section 43 of the Employment Act on proof of the reasons for termination and submitted that as per the dismissal letter dated 21st July 2022, the grounds for Claimant’s dismissal and the Claimant’s response thereto were set out as follows:(i)Moov Bistro-Alchemist Incidenta)Transferred Stocks from Moov Bistro to Alchemist without clearing with the Finance Team contrary to Company Policy 55.Counsel submitted that there was no company policy which required an employee to seek approval from the Finance Team prior to moving stocks from one outlet to another. That in any event the Claimant stated that she sought approval from her Line Manager, Alex Macharia. Indeed, Alex Macharia testified and corroborated her testimony and further testified to the effect that there was a “Sell Out” program which involved moving stocks from a slow-moving outlet to a high- moving outlet. A slow-moving outlet was one where the stocks were not sold at a high speed. That whereas Caroline Gichure testified that there was a Memo written on 5th April 2025 by Alex Macharia which forbade transfer of stocks from one outlet to another. It was prudent to note that the Memo was issued by Alex Macharia, the one who the Claimant sought approval from. 56.Concerning the issue that the claimant issued Alchemist with an invoice which invoice should have originated from the finance and warehouse team, Counsel submitted that the Claimant testified that she was issued by Faustine Mbogo, a former employee, upon her on boarding process and she had been using the same without any problems from the Respondent Company. That during the Disciplinary Panel deliberations which was attached at the Claimant’s 2nd Further List of Documents dated 30th May 2024, Christine Opiyo confirmed that they did not have proper controls and procedures put in place during hand over an that the invoice book belonged to Faustine Mbogo and was left with the Claimant. 57.Concerning the issue that the claimant digitally altered the Moov Bistro invoice Counsel submitted that it was Joyce Omollo’s testimony that when she was following up on payment from Alchemist, she went to Alchemist with an invoice reading Moov Bistro but Alchemist informed her that they required an invoice reading Alchemist. She then cancelled and hand wrote on it but Alchemist said that it did not look professional. That she then called the Claimant who was at work and who corrected the anomaly on the invoice and Alchemist did accept the invoice. That payment was thereafter made as evidenced by the cheque of Kshs 65, 229/= 58.Concerning the issue that there was no documentation attained from Alchemist to confirm the stocks were picked Counsel, submitted that on one hand the Respondent alleged that there was no documentation attained from the customer to confirm the stocks were indeed picked but at the same time the Respondent alleges that the Claimant issued Alchemist with an invoice which was supposed to act as a delivery note. This ground was therefore contradictory and lacked any merit. Regarding the Brownstone Incident of taking stocks from Brownstone without informing the warehose and finance team contrary to guideline, counsel reiterated the position above that there was no company policy or guideline which required an employee to seek approval from the Warehouse and Finance Team prior to moving stocks from one Customer to another. That in any event, the Claimant stated that she sought approval from her Line Manager, Alex Macharia and further that prior to moving the stocks, one Lillian Njeri an Accountant, informed her that Brownstone had cancelled payment in a bid to enable the Respondent Company push more stocks on their behalf. This position was never disputed. It was the Claimant testimony that she was able to push more stocks and the Respondent Company was paid.Regarding the question of keeping stocks picked in her house, Counsel submitted that it was the Claimant’s testimony that she picked the stock from Brownstone on Saturday evening by which time the Warehouse had already been closed. Chrispine Okinge the Respondent Company’s witness confirmed that the Respondent’s Warehouse closes at around 12.00 pm on Saturday. With regard to the issue of the invoice to Brownstone on pick up which was supposed to act as a goods return note Counsel submitted that the Claimant testified that she was issued by Faustine Mbogo a former employee to her upon her on boarding process and she had been using the same without any problems from the Respondent Company. Concerning the accusation of supplying Eltoro with stocks despite being adviced to hold off on supplying them, Counsel submitted that it was the Claimant’s testimony that she sought approval from her Line Manager, Alex Macharia. Indeed, Alex Macharia testified and corroborated her testimony. 59.Regarding the issue of what reliefs the Honourable Court should grant, Counsel submitted that the Claimant’s dismissal was unlawful and unfair and as such urged the Court to award the Claimant 12-month salary totaling to Kshs 2,986,044 for the unfair compensation. 60.On the claim for general damages counsel relied on the case of Lucy Chepkemoi v Sotik Tea Company Limited [2022] eKLR where the court awarded an employee found to have been discriminated against by the employee the sum of Ksh 2, 000,000. Similarly, the Supreme Court in Simon Gitau Gichuru Package Insurance Brokers Ltd [ 2021] eKLR made an award of Ksh 2,000,000 on similar grounds of discrimination against the employee. That in light of the above and taking into account that the Claimant was discriminated as well as defamed, counsel submitted that a sum of Kshs 2,500,000 was reasonable. 61.Regarding the claim for Bonus Payment counsel submitted that the Respondent paid a sum of Kshs 27,500 however the total amount payable was Kshs 71,225 as evidenced by the bonus calculation at page 65 of the Claimant’s documents. The amount of Kshs 71,225 comprises of Kshs 46,860 plus 24,365. The remaining balance of Kshs 43, 725 should therefore be paid. 62.On the claim for reimbursement of fuel allowance counsel submitted that it was the Claimant’s testimony that in the month of June 2022, the Respondent withheld her fuel allowance of Kshs 48, 637 without her consent and proceeded to pay her a salary of Kshs 200,000 instead of her full salary of Kshs 248, 637. She averred that despite seeking a refund of the amount the Respondent failed to reimburse her the amount. That no evidence had been adduced by the Respondent to withhold her fuel amount. 63.On the claim for notice pay counsel submitted that under Clause 21 of the Claimant’s Employment Contract the Claimant was required to provide 3 months’ notice in case she wants to resign and urged the Court to similarly apply the 3 months period in calculation of the notice payment which translate to Kshs 746,511. 64.On the claim for general damages for pain, mental anguish, torture and trauma counsel submitted that it was the Claimant’s testimony that the dismissal had negatively affected her so much to the tune that she suffered a miscarriage due to stress. It was her further testimony that she had been in financial debt as a result of the respondent’s unlawful withholding of her terminal dues. Counsel urged the court to award the Claimant general damages for pain, mental anguish, torture and trauma at the sum of Kshs 1 million. 65.On the claim for airtime allowance counsel submitted that it was a term of the employment contract that the Claimant would be entitled to airtime allowance of Kshs 3,000. Airtime allowance was not paid to her for the month of July. Respondent’s Submissions. 66.The Respondent’s Advocates Amalemba & Associates Advocates filed written submissions dated 30th January, 2026 and on the issue of whether the Claimant was discriminated against, counsel submitted that under paragraph 13 of the Memorandum of Claim, the Claimant contended that the Respondent acted in breach of article 27 of the Constitution of Kenya by discriminating her as she was subjected to a different standard compared to Joyce Omollo who faced similar accusations. Counsel submitted that the Claimant did not plead and/or provide any particulars of the dissimilar treatment for which she was subjected to. 67.The Respondent takes the position that the Claimant was a more senior employee to Joyce Omollo. It was further pleaded that upon obtaining guidance from the Claimant herein to obtain a proper invoice in the name of Alchemist for onward payment she directed and instructed her to issue the same invoice for payment to Alchemist even though it was addressed to a separate entity. The Claimant therefore encouraged violation of company policies and practices in contravention of clause 15 of her employment contract. 68.Counsel submitted that both the Claimant and the said Joyce Omollo were subjected to a disciplinary process where Joyce Omollo was issued with a warning letter after considering and weighing all the facts and the circumstances around her allegations. In addition, the Claimant faced additional allegations of misconduct relating to the Brownstone and the Twinzone incidents. 69.It was the Respondent’s submissions that it was prudent to note in the first instance that apart from a broad statement citing violation of her constitutional rights under Article 27, the Claimant provided no particulars of the way her rights thereof were violated. She did not adduce any evidence to demonstrate how and in what manner her rights under Article 27 of the Constitution were violated. That although the Claimant only pleaded that she was subjected to different treatment despite facing similar allegations, no evidence of Joyce Omollo's allegations have been provided as evidence by the Claimant. Further, it was not disputed that both the Claimant and the Joyce Omollo were subjected to separate and distinct disciplinary proceedings with different outcomes in that whilst the Claimant was terminated Joyce Omollo was issued with a warning letter. 70.Counsel submitted that it was evident that when these allegations arose there were verbal conversations between Joyce Omollo and the Respondent over the allegations through a meeting on Friday 8th July 2022. Pursuant to these conversations, Joyce Omollo forwarded a formal response to the allegations and was eventually issued with a warning letter dated 18th of July 2022. The Claimant produced the response by Joyce Omolo as part of her evidence. It was therefore not in contention that both the Claimant and Joyce Omollo underwent separate disciplinary proceedings save that the same resulted in different outcomes. 71.It was submitted that just like summary dismissal, a warning letter was a product of a disciplinary process and in as much as the Claimant was dismissed and Joyce Omollo was issued with a warning letter; there was every justification for such action which did not necessarily infer that there was discrimination in treatment. 72.Counsel further submitted that it had often been held that it was not the work of the court to dictate or substitute the opinions and actions of the employer with its own as that a decision remains the discretion of the employer. The Respondent opting to issue a warning letter to Joyce Omollo and not a dismissal was a managerial discretion of the employer which decision this court could not substitute with its own judgment. Counsel relied on the case of Nation Media Group versus Munene [2025] KECA 114 {KLR) on this assertion. 73.Further, as regards the Alchemist incident, Joyce Omollo testified as a witness in these proceedings and she stated that when they took stock from Moov Bistro to Alchemist, she only had an invoice and Delivery Note issued in the name of Moov Bistro. She explained that she called the Claimant who requested for a picture of the invoice then she proceeded to edit the Moov Bistro invoice to read Alchemist and requested that the same be issued to Alchemist for payment. 74.Counsel submitted that it was evident from the evidence on record, it was the Claimant who insisted that the Moov Bistro invoice be issued to Alchemist for payment. This was unprocedural yet an idea that was fronted by the Claimant to Joyce Omollo. That the Claimant was a senior management employee of the Respondent while Joyce Omollo was her junior. The decision to terminate her services and issue Joyce Omollo with a termination letter did not in any way amount to discrimination as their respective disciplinary proceedings were separate and distinct save for different outcomes which were based on justifiable reasons. 75.It was submitted that the Claimant's assertion that the warning letter was prepared way before the disciplinary hearing was imagined and had no basis. That it was also evident that the warning letter issued to Joyce Omolo was dated 18th of July 2022 which denoted that the disciplinary proceedings against her had finalized as at the time of issuance of warning letter on the 18th of July 2022. The Claimant's suggestion that a warning letter had been issued before the disciplinary hearing was thus misleading and a misrepresentation of the facts. That at paragraph 4.17 of the Claimant's submissions, the Claimant submits that she was discriminated against by not being paid fuel allowance for the month of June 2022 like other employees yet this was never pleaded. The Claimant was bound by her pleadings and could not purport to expand the scope of the claim through submissions. 76.Counsel submitted that in any event, it had been confirmed in response that the reason the Claimant was deprived of fuel allowance at the time was that during that period, she was in possession of the Respondent's fueled vehicle. That she could not therefore be entitled to fuel allowance when at the same time she was in possession of the company's vehicle which was fueled by the Respondent. There was no basis on the allegation that the Claimant was discriminated against solely based on fuel allowance. Further, there was no evidence presented before the court that any other employee received and was paid fuel allowance and she was denied the same. 77.Counsel submitted that the Claimant bears the burden to establish that she was discriminated against on amongst others the grounds set out under article 27 of the Constitution which she did not. No evidence of discrimination had been established by the Claimant and this claim ought to be dismissed. Counsel relied on the Supreme Court case of Gichuru v Package Insurance Brokers Ltd (Petition 36 of 2019) (2021] KESC 12 (KLR), the Supreme Court cited with approval the decision in the Court of Appeal case in Mohammed Abduba Dida vs Debate Media Limited & Another on what amounted to differential treatment of people to amount to discrimination. 78.Counsel further relied on the case of Ng'eno v East African Breweries PLC (2025] eKLR, where Lady Justice Linet Ndolo held that discrimination must be based on the grounds listed under article 27 of the Constitution while dismissing a claim of discrimination for failure to establish the listed grounds. That the Claimant did not produce any evidence to justify the alleged discrimination. 79.Mr. Malemba further submitted that the authorities cited by the Claimant in support of her submissions on alleged discrimination were distinguishable from the facts of this present case and therefore inapplicable to. 80.Regarding procedural fairness, counsel submitted that section 41 as read together with the provisions of section 45(1) and (2) of the Employment Act, provided for the procedure to be adopted in terminating the employment of an employee. That the Claimant asserted that the Respondent did not consider the representations made by her but wholly ignored the said representations. The the Claimant however did not point out which of her representations were ignored by the Respondent. Further, the Claimant pleaded and stated that the disciplinary process was rushed and other than just claiming that the disciplinary hearing took nine days, the Claimant did not demonstrate how and in what manner she was prejudiced. 81.Counsel submitted that it was on record and not disputed that the Claimant was issued with a show cause letter dated 12th of July 2022 and was invited to answer to the allegations in writing. That in a response received on the same day through an email dated 12th July 2022 at 4:39 p.m. stated that she was on leave and requested to deal with the same once she was back. Eventually, the Claimant responded to the show cause letter on the 19th of July 2022 as per the email appearing on page 31 marked as exhibit 6 which was sent at 1:47 pm. The Claimant thus had sufficient time to respond to the allegations against her and was not prejudiced in any manner contrary to the allegations made in her submissions. 82.Counsel submitted that the allegation and submission by the Claimant that she responded to the show cause letter on 12th of July 2022 was misleading. A perusal of the Claimant's response would show that the Claimant merely used the same show cause letter issued to her (dated 12th of July 2022) and inserted her response against each of the allegations made against her which were received by the Respondent on the 19th of July 2022. The Claimant did not therefore respond on the 12th of July 2022 as alleged and submitted as she only noted that she was on leave and could only respond once back. A perusal of the some of the management internal emails produced as exhibit 5 appearing on page 30 of the Respondent's bundle, it was evident that as of the 15th of July 2022 the Claimant was yet to put in a response. 83.Counsel submitted that in particular vide an email by Christine Opiyo on the 15th of July 2022 at 10;42 am, the Respondent's Human Resource Manager positively considered the Claimant's request to respond once back when she noted as follows; -“I've consulted Kennedy, he's advised that we give Velma some more time as proof that she had sufficient time to respond. Considering she is still out on her leave today and she's back on Monday, he's said close of business Monday is an appropriate grace period 84.It was submitted that it was evident from the said email that the Respondent considered the Claimant's plea and indeed the Claimant was granted sufficient time to respond to the show cause letter contrary to the submissions by the Claimant at paragraph 4.28 to 4.32 which submissions were misleading and do not provide the true picture of the course and sequence of events. That at paragraph 4:23 to 4.27 of the Claimant's submissions, the Claimant faults the disciplinary process on the alleged breach of the Exit Policy. That it was evident that the issue of the alleged breach of the Respondent's Exit Policy was not pleaded as amongst the allegations of alleged breach of procedure to allow the Respondent rebut the allegations. Counsel relied on among others the Court of Appeal’s case of Dakianga Distributors (K) Ltd v Kenya Seed Company Limited (2015] KECA 870 (KLR) and the Supreme Court in the case of Raila Amolo Odinga & another v IEBC & 2 others (2017) eKLR that parties were bound by their pleadings. 85.It was submitted that even though the Respondent's witness was cross-examined on the alleged Exit Policy, the issue was not pleaded. It was not open to the Claimant to lead evidence on alleged breach of the exit policy if not pleaded and anticipated by the Respondent to allow it adduce evidence on its compliance with the same. 86.Counsel submitted that there was no doubt that a disciplinary hearing was conducted prior to the Claimant's termination of employment. Even though the Claimant pleaded that she was not afforded enough time to prepare her defence, the Claimant admitted during cross- examination that she was a senior employee of the Respondent and did not request for more time to prepare her defence if at all she required more time to do so. That having presented herself to the disciplinary panel as communicated within the timelines set in the invitation letter, the Claimant did not suffer any prejudice and her complaint that she did not have enough time to prepare her defence was merely academic and an afterthought. Counsel relied on the case of Henry Isaiah Onjelo-Versus- Maridadi Flowers Limited (2015) eKLR, on this assertion. 87.Counsel contended that the Claimant's submissions that the Respondent withheld her terminal dues was without any justification. The Respondent pleaded and provided evidence that the Claimant was yet to clear with the Respondent at the time of exit to enable it to process her terminal dues. That in any event, the Claimant had since been paid her terminal dues during the pendency of these proceedings and as such the issue had been rendered moot and had no bearing on the procedural steps taken to terminate her service. 88.On the validity of the reasons for termination counsel relied on section 43 of the Employment Act which provides the reasons for termination of an employee have been identified as matters that the employer genuinely believed to exist, and which cause the employer to terminate the services of the employee. Counsel relied on the case of Kenya Revenue Authority -versus-Reuwel Waithaka Gitahi & 2 Others (2019) eKLR on the reasonable test of an employer. That in the summary dismissal letter issued to the Respondent dated the 21st of July 2022, the Claimant's termination was based on 3 broad allegations relating to the Moov-Bistro-Alchemist incident, Brownstone Incident, Twinzone Incident and "Others". 89.Counsel submitted that before examining the reasons for termination it was bourn from the evidence and as admitted by the Claimant that movement of stock in and out of the Respondent premises was evidenced through various documentation. It was confirmed by both the Claimant and her witness Mr. Alex Macharia through cross examination that once stock leaves the Respondent's premises to a customer and vice versa there are crucial accompanying documents to accompany the said stock for accountability purposes. That they confirmed that when stock leaves the Respondents premises to be delivered to a customer, it must be accompanied by an Invoice and a Delivery Note which shows number and quantity of the items being delivered to a customer including the customer's name, person delivering among other details. 90.Counsel submitted that when stock is being returned to the Company from a customer, the customer must execute a Goods Return Note which shows the name of the outlet and the description and quantity of the goods being returned. 91.Counsel highlighted the reasons for the summary dismissal as seen before on the three incidents. Counsel submitted that pursuant to a Policy directive and communication dated 5th April 2022, which was communicated to all employees including the Claimant where there was transfer of stock or uplifting of stocks there was need for various approvals to be obtained and formal communication to be done with the logistics team and accounts team so that such return of stock can be facilitated. 92.Counsel submitted that as regards movement of stock from Moov Bistro to Alchemist was concerned, in as much as the Alex Macharia testified that he received a phone call seeking approval for movement of stocks from Moov Bistro to Alchemist where he allegedly granted approval, no evidence of any formal written approval was produced as required by the policy communication which emphasized formal communication between logistics and Finance team. The Claimant did not provide any evidence of any formal authorization to move the said stock from the finance team. Further Mr. Chrispine Okinge who testified as the Respondent's witness confirmed that he did not receive any communication from the Claimant on the transfer of stock. 93.It was submitted that further from the Claimant's own admission, she did not obtain a Goods Return Note duly signed from the customer to show that the stock was being returned from their outlets as per established procedures. Further, whilst the stock was being delivered to Alchemist, there was no formal Delivery Note to show that the items were being delivered to Alchemist. Instead, the Claimant utilized the same delivery note issued to Moov Bistro which was to act as a Delivery Note to Alchemist which was against company policy. 94.Counsel submitted that in respect of the allegations that the Claimant digitally altered the Moov Bistro invoice to obtain payment from Alchemist for the stocks that was delivered to them in violation of the company policy, in her response to the show cause letter and during the disciplinary proceedings, the Claimant openly admitted to altering the invoice from Moov Bistro to read Alchemist. She further acknowledged that the Invoice issued to Alchemist did not emanate from the Respondent's Finance team. 95.That it was further alleged that Alchemist was issued with an invoice which was supposed to act as a Delivery Note which was a misuse of company documents which should originate from finance and warehouse team. The Claimant admitted during cross- examination that she did not have a Delivery Note when the stock was being delivered to Alchemist but instead issued the same Delivery Note that was issued to Moov Bistro. She further confirmed that the Invoice issued to Alchemist did not emanate from the Finance team. That this was a classic case of serious misuse of the Respondent's documents. 96.It was submitted that issuance of an invoice for payment by a client had serious financial accountability and tax implications. Once an invoice is issued by the Respondent to an entity, there were serious statutory obligations that arise from that act including payment of various taxes. It was inconceivable therefore that an Invoice issued to Moov Bistro would then form the basis for receiving payment from a different entity, yet these entities held completely different and separate accounts with the Respondent. The actions by the Claimant lacked logical reasoning and justification especially since she was a senior management employee of the Respondent. 97.It was submitted that the above brought to the fore the lack of transparency and internal accountability concerns brought to the fore by the actions of the Claimant. Without these critical documentations, it would be impossible to track sales, deliveries or reconcile sales and income from an accounting perspective. That therefore there were sufficient reasons for the Respondent to terminate the Claimant's employment in the circumstances which reasons were based on the Claimants own admissions. 98.Counsel submitted as regards the Brownstone Incident, that the Claimant was terminated for taking possession of stock from Brownstone without informing the warehouse and finance department contrary to guidelines provided by the company. That it was also established that she took the stock and kept it in her house. Further she issued Brownstone with an Invoice on pick up which was to act as a good return note which amounted to misuse of documents. She was also accused of withholding customer instructions where she was advised to pick stock from their premises but did not pass the communication to the relevant departments being finance and warehouse. 99.It was submitted equally, during cross-examination, that the Claimant did not provide any evidence of any formal communication to the Finance and Warehouse Team as per the guidelines provided by the Respondent. Further the Claimant issued an invoice to Brownstone which was to act as a goods return on pick up. That the Claimant conceded that she did not obtain a Goods Return Note signed by Brownstone at the time stocks were collected from their outlet. None was provided as evidence in court. That it was also established that the Claimant had picked up stock and kept the same at her house. 100.That on being questioned about why she kept company stock in her house, the Claimant responded that there was no particular reason why she kept the stock in her house. She said she had sold 100 cases and, in her view, bringing back 100 cases was not good as she sought to help to sell out some stock. 101.It was submitted that although the Claimant claimed that the Respondent's Warehouse was closed by then which forced her to keep stock in her house, the said explanation does not appear anywhere in the disciplinary hearing minutes (transcription) which made that an assumption and allegation an afterthought. 102.That when questioned why she kept the stock in her house, the Claimant did not state that the Warehouse was closed at the time. That further, upon being questioned why she picked the stock herself as opposed to informing the warehouse, the Claimant stated that she thought it was within her jurisdiction to do a market clean up even though it was quite clear that the issue ought to have been handled by the Warehouse team. That the Claimant's explanations were not plausible and violated the Respondents stock picking guidelines therefore the Respondent had a valid reason to terminate the services of the Claimant based on this allegation. 103.Counsel submitted as regards the Twinzone Incident, that the Claimant was informed that despite advice from Finance team to hold off any supplies to Eltoro prior to MIT she went against this and transferred stock from Twinzone without communicating via the proper channels. Further it was contended that Eltoro was issued with an Invoice on delivery which was not shared with the Finance team for further action. That the Claimant did not dispute that there was communication to hold off any supplies to Eltoro. In any event despite the said advise, she confirmed that she moved stock to Eltoro. When asked whether the same was documented, the Claimant confirmed that there was no documentation of the alleged approval. That the stock uplifting guidelines issued to the Claimant was very clear that formal approvals be obtained from Finance and Warehouse Teams respectively as per the policy guidelines dated 5th April 2022. 104.It was submitted that on the allegations that the Claimant issued an Invoice on Delivery which was not shared with Finance team, the Claimant claimed that she had an Invoice Book which was issued to her. At page 14 of the Minutes of the Disciplinary hearing, it was clear from Ken that the said book was not to be used as there was no communication on the same. The Claimant confirmed selling to customers using the book yet there were no communications obtained from the Respondent on the use of the Invoice Book. 105.That further, it was established in the show cause letter that the alleged Invoice book was not issued to the Claimant, but the records showed that the same was issued to one Faustine Mbogo. Even though the Claimant stated that this was an additional ground for termination, the Claimant merely raised this issue in response to the Claimant assertions in both her Response to the show cause letter and during the disciplinary hearing that she had been using the invoice book to sell to customers. That this did not in any way amount to a new allegation but was more of a finding on an issue directly raised by the Claimant herself in response to the show cause letter. 106.That the Respondent had genuine belief in the reasons for termination and that the same were valid and justified in the circumstances of the Claimant's termination. In totality the Respondent had a valid reason to terminate the services of the Claimant and that the same had been fully justified which were based on the evidence adduced including the Claimant's own admissions during the disciplinary hearing. 107.On the issue of whether the Claimant was defamed by the Respondent counsel submitted that at paragraph 12(k) of the Claimant's Memorandum of Claim the Claimant asserts that the Respondent's CEO claimed that the Claimant was dismissed for having stolen personal property belonging to her which allegations did not form part of the reasons outline in the Summary Dismissal Letter. Despite the said pleading, the Claimant did not seek any damages for defamation as part of her relief sought before the court. That even though the Claimant extensively submits that she was defamed, the Claimant did not plead the particulars of defamation in her pleadings to justify the court to interrogate these allegations. 108.Counsel submitted that the Claimant's Claim did not provide any particulars of the utterances that were supposedly injurious to her reputation. She did not plead particulars of defamation. The Claimant did not identify the defamatory words, when they were uttered, in what form they were uttered whether verbal or in writing, by whom they were uttered the date or time when the same were uttered. Even though the Claimant contends that the said words are attributed to the Respondent's CEO, the Claimant did not join the Respondent's CEO as a party to these proceedings and allow her an opportunity to be heard on the alleged defamatory allegations. Counsel relied on the case of JMK versus-MWM (2015) eKLR, to submit on the right of a party to be heard. 109.Counsel submitted the testimony of Catherine Gatebi did not hold water and ought to be disregarded. She gave evidence on matters and allegations that were neither pleaded in the body of the Claim. Further, the said witness appeared to be vindictive and vengeful owing to her admission that she had pending legal proceedings against the Respondent in ELRC Cause E650 of 2022 pending before this very court. 110.That whilst in her evidence she stated that the Claimant was terminated based on integrity concerns, this was a fact given the allegations of digitally altering invoices which the Claimant admitted. That the accusation of defamation against the Respondent ought to be dismissed forthwith for lack of particulars and proof as is require while relying on the case of Wenslaus Oduki Odinga- Versus- Kenyatta National Hospital Board (2013) eKLR. 111.On the relief Sought on compensation for unfair termination of employment counsel submitted that having established that the Claimant's termination was both substantively and procedurally fair, the Claimant was not deserving of the prayer for Compensation for unfair termination of employment. Notwithstanding the foregoing submissions and assuming that the Claimant, would be entitled to compensation, section 49 of the Employment Act enjoins this Court to consider among other things the length of service of an employee and her contribution to the disciplinary process against him/her if any. In the instant case, the Claimant was employed on the 15th of March 2021 and was terminated on the 21st of July 2022. She had served a year and about 3 months in employment. She contributed to her own termination as she admitted some of the allegations made against her. Taking the foregoing into consideration the Claimant was not entitled to 12 months’ salary for unfair termination as was pleaded in her memorandum of claim. 112.On the claim for general damages for breach of Claimant's rights under the Constitution counsel submitted that the Claimant had not demonstrated any breach of her Constitutional rights at all. 113.On the claim for Bonus payment counsel submitted the Claimants terminal dues including bonus were fully paid by the Respondent and the Claimant's insistence on the claim for bonus was without justification. The Claimant was paid her bonus of Kes. 27,500. The same having been paid the Claimant's claim on the same was rendered moot. In any event, the Claimant did not provide any basis of how she arrived at the figure of 71, 225. She did not provide any contractual or statutory basis for the said claim as computed especially and as the same ought to be declined. The basis of bonus calculation provided by the Claimant at page 65 of the claimant's documents was not explained. The document appeared to be a computer-generated spreadsheet. It did not bear the stamp and signature of the Respondent, and its source was not explained hence the same should be dismissed. 114.On the claim for reimbursement of Fuel Allowance counsel submitted that it was not disputed that the Claimant used the company vehicle which was fueled by the Respondent for her own personal use and was thus stripped of fuel allowance for the said period. Vide an email dated 2nd August 2022, it was confirmed that the Claimant was in possession of the company's official vehicle which was fueled by the Respondent. The Claimant was not therefore on one hand use the company's official vehicle and at the same time claim fuel allowance such would amount to double compensation hence the claim ought to be declined. See email correspondences on page 75 of the Respondent's Bundle. 115.On the claim for Notice Pay counsel submitted that the Claimant's claim for 3 months' notice in lieu had no contractual or statutory basis. While the Claimant's employment was summarily terminated in accordance with the provisions of section 44 of the Employment Act, the Claimant was not entitled to payment of notice. The Claimant's contract of employment provided for a termination notice of one month (30days) at clause 19.5 and as such the claim for 3 months' notice had no basis in law. The same ought to be dismissed as lacking in merit. 116.On the claim for general damages for pain, mental anguish, torture and trauma counsel submitted that from the onset, general damages for breach of employment contract were not permissible in law and thus not available to a Claimant. Reliance was placed on the case of Nyamweya - versus-Asakania (2025) eKLR. That in view of the foregoing, it was submitted that general damages were not available in instances of breach of contract. In any event, the Claimant did not prove that she underwent mental anguish torture or trauma for being subjected to disciplinary proceedings as anticipated by her own employment contract and the law. No medical report was submitted to court to establish that the Claimant suffered psychologically to warrant grant of damages. 117.On the claim for Airtime allowance it was submitted that this claim had no basis. The Claimant did not adduce any evidence to justify the grant of this head of claim and the same ought to be equally dismissed with cost. The same was paid as part of her consolidated salary for prorated days worked in July of 2022. Determination 118.This court albeit the long pleadings by parties has reviewed and considered the pleadings, testimonies, submissions and authorities relied on by all parties and has I have come up with four main issues: -Aa. aa.a.WhetherWhether the Claimant’s summary dismissal was unfair and unlawful.b.Whether the Claimant was discriminated against by the Respondent.c.Whether the Claimant was defamed by the Respondent.d.When the Claimant is entitled to the reliefs sought. Whether the Claimant’s summary dismissal was unfair and unlawful 119.The almost settled legal position with regard to termination of employment cases is that such termination must pass both substantive and procedural fairness. In that regard, the court has always relied in cases on this point such as the holding in Janet Nyandiko versus Kenya Commercial Bank Limited (2017) eKLR among others. On the substantive test the employer must give a fair and valid reason as per section 43 of the Employment Act. Section 45 of the Employment is clear that where there are no valid and fair reasons, such termination will be deemed unfair. Section 44 of the Employment Act ,2007 stipulates when a summary dismissal can occur in particular under Section 44(4) (c) of the Act, a summary dismissal on grounds of gross misconduct and especially in a case where an employee wilfully neglects to perform any work which it was his duty to perform, or if he carelessly and improperly performs any work which from its nature it was his duty, under his contract, to have performed carefully and properly, will be justifiable. 120.In this case the Claimant received a show cause letter dated 12th July, 2022 with three main allegations of malpractice in stock movement. The Claimant was accused of the first incident of Moov Bistro-Alchemist incident where she was accused of transferring stocks from Moov Bistro to Alchemist without clearing with the finance team, issued Alchemist with an invoice which invoice should have originated from the finance and warehouse team and that she digitally altered the Moov Bistro invoice to Alchemist which she also used as delivery note. 121.The second incident was the Brownstone incident in which she was accused of failure to inform the Warehouse and Finance team of stock picked from Brownstone and delayed to return the stock picked to the warehouse as well as returned less stock. The third incident was the Twinzone-Eltoro where she was accused of transferring goods to Eltoro which had outstanding debt and issuance of invoice form despite none being issued on the last MIT event. 122.The Claimant responded to the allegations and alleged that there was no company policy which required an employee to seek approval from the Finance team prior to moving stocks from one outlet to another and that she sought her supervisor’s approval one Alex Macharia before the transfer of stocks. That Alex Macharia admitted that there was a sell-out program which involved moving stocks from a slow -moving outlet to high moving outlet. The claimant stated that although there was a memo dated 5th April, 2022 which forbade transfer of stocks from one outlet to another and it was the same Alex who gave her the approval to transfer. 123.On issuance of the invoice which would have originated from the finance team, she alleged that the same belonged to Faustine Mbogo and she had been using it without any problem. Regarding digitally altering the invoice she alleged that she altered the Moov Bistro invoice to Alchemist because Alchemist refused to make payment in the name of Moov Bistro and that the hand-altered invoice was unprofessional. It was her evidence that she had to digitally alter it so that payment could be made and which payment was made thereafter. 124.Regarding the issue that there was no documentation from Alchemist that the goods were picked, the Claimant alleged that the invoice issued to Alchemist was supposed to act as delivery invoice. Concerning Brownstone incident of picking stocks without informing warehouse and finance and keeping them in her house, the Claimant alleged that there was no company policy on such transfer and Alex Macharia had approved the transfer. On why she kept the goods in her house, she alleged that the warehouse was closed. 125.From the foregoing the court observed that although the Claimant alleges she sought approval from Alex Macharia her line manager, she admitted the approval was verbal and not in writing. The same Alex had issued a memo of 5th April, 2022 which required transfer of stock between outlets on stock picking policy without informing the Warehouse and finance. The Claimant also altered the Moov-bistro invoice digitally to Alchemist and stated that the invoice would act as a delivery note when she admitted at hearing the two documents were different. 126.The court also notes that she picked stock from Brownstone and kept them in her house against the company policy and never communicated to the warehouse and finance team and failed to issue stock return note. The Claimant also supplied goods to Eltoro from Twinzone despite being advised that the said Eltoro had outstanding debts and issued an invoice despite one not being issued at last MIT event. Even though the Claimant alleged that the actions were done in the best interest of the Respondent who was paid, it did not mean her actions were lawful. 127.The Claimant was bound by clause 15 of her contract of employment to act with utmost honesty and due diligence at all times. Her actions of breach of company policies and her role being a senior officer would be a valid reason to cause her dismissal. The Claimant instructed her junior Joyce Omollo to alter the invoice of Moov-Bistro by hand to read Alchemist which the latter refused to accept stating it was unprofessional. The Claimant was a senior employee therefore ought to have led by example and not to instruct her juniors to alter documents to read a different entity when she admitted that each outlet had its distinct on-boarding account. 128.It was clear that the role of issuing invoices solely belonged to the Finance and Warehouse team and not the Claimant and if she used the invoice formerly issued to Faustine Mbogo there were no official communication about the same or evidence that the said Faustine gave her the said booklet lawfully. To this court even if the Respondent never incurred loss the actions by the Claimant were detrimental to the Respondent and exposed it risk of losses in future since it would be hard to track stock movement if proper documentations was not adhered to. Even though the stock policies came in to place after termination of the Claimant the memo was in place and the Claimant had to adhere to it in orderj to track sales and stock movement. 129.In law, the Claimant was bound by section 47(5) to illustrate that her termination was unfair before the Respondent could be called upon to justify the grounds for termination. In this regard the court will be guided by the case of Pius Machafu Isindu v Lavington Security Guards Limited [2017] eKLR where the Court of Appeal stated:“There can be no doubt that the Act, which was enacted in 2007, places a heavy obligation on the employers in matters of summary dismissal (Emphasis mine) for breach of employment contract and unfair termination involving breach of statutory law. The employer must prove the reasons for terminating (section 43) – prove that the grounds are justified (section 47 (5), among other provisions. A mandatory and elaborate process is then set up under section 41 requiring notification and hearing before termination.” 130.The Respondent on the other hand was bound by section 47(5) to justify the reasons to summarily dismiss the Claimant. Section 43 of the Employment Act states that for termination or dismissal of employment to be held valid, an employer must have genuinely believed the reasons existed which caused termination of the employee’s service. Justice Professor Ojwang’ in the case of Kenya Revenue Authority Vs Menginya Salim Murgani, Civil Appeal No. 108 of 2009 as cited in Republic Vs National Police Service Commission Exparte Daniel Chacha Chacha JR 36 of 2016 (2016) eKLR observed as follows:“There is ample authority that decision making bodies other than courts and bodies whose procedures are laid down by statute are masters of their own procedures. Provided that they achieve the degree of fairness appropriate to their tasks. It is for them to decide how they will proceed” 131.The Court of Appeal in Civil Appeal No 66A of 2017, Kenya Revenue Authority v Reuwel Waithaka Gitahi & 2 others [2019) eKLR held as follows on the standard of proof: -“The trial court applied a skewed standard of proof, and, certainly, not the one provided for under section 43 (1) of the Act. It is improper for a court to expect that an employer would have to undertake a near forensic examination of the facts and seek proof beyond reasonable doubt as in a criminal trial before it can take appropriate action subject to the requirements of procedural fairness that are statutorily required. The standard of proof is on a balance of probability, not beyond reasonable doubt, and all the employer is required to prove are the reasons that it "genuinely believed to exist," causing it to terminate the employee's services.” 132.From the above, it was clear the Respondent genuinely believed that the claimant had gone against its policies on stock transfer and her being in a senior position, held higher duty to perform her duties diligently and with utmost honesty. The court notes that any reasonable employer in the same position as the Respondent would have lost trust in the Claimant particularly concerning keeping the respondents goods of trade in her house for three weeks without authority and disclosure to the respondent the reason for doing so. Her defence that the warehouse was closed is unbelievable since it is doubtful the warehouse could be closed for such a long time. 133.In determining the reasonableness of the employer’s action in terminating an employee, the test is always that of a reasonable employer in the circumstances. Lord Denning in the often-cited case of British Leyland UK Ltd v. Swift [1981] IRLR 91 stated:‘The correct test is: Was it reasonable for the employers to dismiss him? If no reasonable employer would have dismissed him, then the dismissal was unfair, but if a reasonable employer might reasonably have dismissed him, the dismissal was fair. It must be remembered that in all these cases there is a band of reasonableness, within which an employer might reasonably take one view: another quite reasonably take a different view. One would quite reasonably dismiss the man. The other quite reasonably keep him on. Both views may be quite reasonable. If it was quite reasonable to dismiss him, then the dismissal must be upheld as fair even though some other employers may not have dismissed him”. 134.The Claimant who never denied her involvement in the activities only stated that she sought approval of her line manager but forgot that the company’s policies had to be adhered to and the said approval never allowed her to alter documents. Further, she kept company’s goods in her house without permission among the other infractions illustrated above. The line Manager testified that he did not know if the Claimant informed the Finance and warehouse team or if she altered the invoice. The Court is therefore inevitably driven to find and hold that the Respondent had valid and reasonable grounds to terminate the services of the Claimant as it did. 135.Regarding procedural fairness section 41 is the guiding law on the procedural fairness which must be adhered to by an employer. It was the Respondent’s case that the disciplinary process against the Claimant was procedural and fair. This court notes that the Claimant was issued with a show cause letter of 12th July, 2022 to which she responded. The parties have taken divergent views on the allegation of when the show cause letter was responded to with the Claimant insisting that she responded on the same date while the Respondent insisting she responded on 19th July, 2022. To this court what matters is whether the same was responded to and considered by the Respondent. From the email messages herein she shared her response on 19th July, 2022 which to this court was reasonable time. The Claimant also confirmed during hearing that she never requested for more time to be heard hence the period given was enough and she never illustrated how she was prejudiced. She confirmed that she was informed to attend the hearing with a colleague of her choice. The hearing culminated in her dismissal through a letter dated 21st July, 2022. 136.The court is therefore convinced that the Respondent followed the due process in terminating the Claimant’s service.Whether the Claimant was discriminated against by the RespondentConcerning the issue of discrimination, the same fails as the Claimant had not illustrated how she was discriminated against and on what account apart from stating that Joyce Omollo was warned and not dismissed. As noted earlier the Claimant was senior to Joyce Omollo and she was the one who instructed her (Joyce) to alter the invoice. In addition, the Claimant faced more serious allegations than Joyce and it was within the prerogative of the Respondent to decide what happens on both cases. The court cannot interfere with such managerial prerogative. The failure to pay Claimant withheld fuel could not be a discrimination as she never illustrated if other employees used the company car and were paid fuel allowance as well 137.In the case of Gichuru v Package Insurance Brokers Ltd (Petition 36 of 2019) [2021] KESC 12 (KLR) (22 October 2021) Discrimination was explained as follows:“Discrimination was failure to treat all persons equally when no reasonable distinction could be found between those favoured and those not favoured. Not all cases of distinction amounted to discrimination. Discrimination could be said to have occurred where a person was treated differently from other persons who were in similar positions on the basis of one of the prohibited grounds like race, sex disability or due to unfair practice and without any objective and reasonable justification.” 138.Equally, in Francis Njeru Kariuki v Crown Paints Kenya Limited [2022] eKLR it was held that:“According to the Court of Appeal in Barclays Bank of Kenya Ltd & another v Gladys Muthoni & 20 others [2018] eKLR –“…Discrimination means affording different treatment to different persons attributable wholly or mainly to their descriptions … whereby persons of one such description are subjected to … restrictions to which persons of another description are not made subject or are accorded privileges or advantages which are not accorded to persons of another such description…” 139.In the instant case, apart from stating that she was discriminated, the Claimant provided no factual basis for the allegation. It is therefore problematic for the court to reach a finding that the claimant was discriminated against. Whether the Claimant was defamed by the Respondent. 140.The Claimant alleged the Respondent’s CEO defamed her but she never joined him as a party in these proceedings for him to be heard. The evidence of Catherine who has also filed a case against the Respondent would most probably be taken as trying to settles scores against the Respondent. The claimant never illustrated which words were defamatory and if the same were published. The mere assertion that the CEO announced her dismissal and not the HR could not amount to defamation. To this end, the court finds that the Claimant has not met the threshold of proving defamation hence this claim fails. Whether the Claimant is entitled to reliefs sought. 141.After finding that the claimant’s summary dismissal was fair and lawful, the Claimant is not entitled to compensation for unfair termination as per section 49 of the Act. 142.Regarding the claim for general damages for breach of constitutional rights and for pain and suffering, the same also fail for there being no established breach of the constitutional rights or any harm suffered during employment relationship. Any harm suffered after the end of employment relationship could not be attributed to the Respondent. In any case the Claimant admitted that she never pleaded and particularized the harm she suffered. 143.On the claim for notice pay of 3 months this court notes that the employment contract clause 19.5 provided for one month notice and not three months’ notice as claimed. This prayer therefore fails since the Claimant was summarily dismissed. 144.On the claim for bonus payment the court notes that the Claimant was paid bonus while the matter was ongoing in court at Kshs. 27,500/= and the Claimant never illustrated why she was entitled to more. The prayer therefore fails as well. 145.Concerning the claim for reimbursement for transport allowance the Respondent illustrated that the Claimant was in possession of the company car fueled by the Respondent hence the Claimant was not entitled to transport allowance and on the claim for airtime allowance the same was not part of her gross salary and the same was to be sent as a separate allowance which the Respondent illustrated was paid together with terminal dues on pro rata basis. 146.The Claimant is however entitled to certificate of service by virtue of section 51 of the Act. 147.In conclusion the Claimants claim is found without merit is hereby dismissed with no orders as to costs in the light of the fact that the claimant though breached the respondent’s merchandise handling policy, innocently but wrongly thought she was acting in the best interest of the respondent. 148.It is so ordered. DATED AT NAIROBI THIS 10TH OF JULY, 2026DELIVERED VIRTUALLY THIS 10TH OF JULY, 2026ABUODHA NELSON JORUMPRESIDING JUDGE-APPEALS DIVISION.