Odongo v Jambojet Ltd (Employment and Labour Relations Cause E055 of 2025) [2026] KEELRC 2029 (KLR) (25 June 2026) (Judgment)

Odongo v Jambojet Ltd (Employment and Labour Relations Cause E055 of 2025) [2026] KEELRC 2029 (KLR) (25 June 2026) (Judgment) Neutral citation: [2026] KEELRC 2029 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Mombasa Employment and Labour Relations Cause E055 of 2025 K Ocharo, J June 25, 2026 Between Thomas Midiang'a Odongo Claimant and Jambojet Limited Respondent Judgment Background 1.Via the Statement of Claim dated 13th May 2025, the Claimant prayed for judgment against the Respondent for:a.A declaration that the termination of the Claimant’s employment was wrongful, unlawful, malicious and unfair;b.Reinstatement of the Claimant by the Respondent and retraction of the defamatory allegations of misogyny;c.Compensation for wrongful, unlawful, malicious and unfair termination of employment;(d)Terminal benefits, including:(1)One Month’s Salary in Lieu – Kshs. 64,174.00 (2) Service Pay (1/3 × 64,174) × 3 – Kshs. 64,174.00(3)Certificate of service.e.General damages for loss of employment;f.Costs of the suit; andg.Any other relief the Court may deem fit to grant. 2.The Respondent resisted the Claimant’s claim via the Response to Statement of Claim dated 18th June 2025. It stated that the Claimant’s employment was lawfully terminated in March 2025 after he made discriminatory and derogatory remarks directed at female employees during a staff meeting. Claimant’s Case 3.At the hearing, the Claimant, Thomas Midianga Odongo, adopted his witness statement as part of his evidence in chief. He stated that he was employed by the Respondent as a Customer Service Agent from 1st March 2022 under an employment contract dated 1st March 2022. 4.He stated that at all material times he worked diligently for the Respondent and that his salary was reviewed to Kshs. 64,174 from 1st July 2023. He further stated that part of his duties included mentoring colleagues, including female colleagues, and that throughout his employment no complaint had ever been raised against him regarding bias, chauvinism or mistreatment of female colleagues. 5.The Claimant stated that on 1st March 2025, he received a Notice to Show Cause requiring him to explain why he should not be summarily dismissed. The notice arose from remarks he allegedly made during a staff forum held on 21st February 2025 in the presence of the Director of Operations. The allegations against him were that he had made statements undermining the credibility and participation of female colleagues, portrayed them as incapable of leadership, expressed intolerance towards female colleagues, and implied that promotions of female employees were based on physical appearance rather than merit. 6.He stated that he responded to the Notice to Show Cause and denied the allegations, explaining that the words attributed to him had been taken out of context. He was thereafter invited to a disciplinary hearing, which he attended. At the hearing, he denied being misogynistic and clarified the context in which the alleged remarks were made. He maintained that the allegations were intended to defame his character and his position on women. 7.The Claimant further stated that the real reason for his dismissal was his push for staff to align themselves with the Kenya Aviation Workers Union and his role in mobilising employees to pursue a collective bargaining agreement with the Respondent. He therefore viewed the allegations of gross misconduct and gender bias as a guise for victimisation. He stated that the Respondent failed to prove the allegations against him and that the summary dismissal was punitive and unfair. 8.He stated that the staff forum held on 21st February 2025 was expressly convened as a private and confidential session, with an assurance from the Director of Operations that the discussions would remain closed within that forum. According to him, the assurance of confidentiality encouraged open and candid dialogue, and the Respondent acted unfairly by later using comments made during that protected forum as a basis for disciplinary action. 9.The Claimant maintained that his comments were taken out of context. He stated that his call for colleagues to “step up” stemmed from a previous operational disruption in which he felt unsupported. He denied that his intention was to demean or discriminate against anyone and contended that the Respondent deliberately stripped his comments of context in order to portray them as misconduct. 10.He further denied that his appeal was meaningfully considered. According to him, the Respondent’s letter dated 3rd April 2025 was only a notification of the outcome of the appeal and did not address the procedural and contextual issues he had raised in his appeal letter dated 14th March 2025. He stated that the appeal process was therefore a mere formality and a denial of natural justice. 11.The Claimant also challenged the disciplinary process, stating that it was rushed, procedurally flawed and prejudicial to his right to a fair hearing. He argued that no proper investigation was conducted before the disciplinary hearing, and that he was not supplied with an investigation report, witness statements or concrete evidence beyond the allegations in the Notice to Show Cause. He also stated that the time between the Notice to Show Cause dated 6th March 2025 and the disciplinary hearing held on 13th March 2025 was too short to allow him to properly prepare his defence, seek legal advice and gather evidence. 12.He further stated that his witness, Ruth Okeye, was not given a meaningful opportunity to present her testimony during the hearing. According to him, she was only asked at the end of the proceedings whether she thought the process was fair, which he said showed it was predetermined. 13.The Claimant also contested the Release and Discharge Agreement allegedly executed on or around 11th April 2025. He asserted that it was obtained under economic duress following his summary dismissal and during a period of financial distress. He maintained that the payment of Kshs. 31,574.14 could not constitute valid consideration for relinquishing his right to contest an unlawful act. dismissal. He needed to pay rent and school fees for his brother. Respondent’s Case 14.The Respondent called two witnesses, Ms Susan Koskei [RW1] and Ms Alice Mbugua[RW2] to give evidence on its behalf. Like the Claimant, the RW1 adopted her witness statement filed herein as her evidence in chief. She stated that she is employed by the Respondent as the Manager, People Operations. She further stated that the Claimant was employed by the Respondent as a Customer Service Agent and that, during a staff forum held on 21st February 2025, he made offensive and inappropriate remarks directed particularly at female employees. According to her, the remarks were discriminatory and suggested that women in the organisation were intellectually and professionally incapable, which hurt and offended female employees. 15.She stated that although the meeting was private and internal, this did not justify demeaning or discriminatory comments. She further stated that Jambojet values respect and dignity in the workplace and is committed to maintaining a safe and respectful working environment. 16.Ms. Koskei stated that after the incident, the Respondent followed its internal disciplinary process and the law. The Claimant was issued with a Notice to Show Cause on 6th March 2025, invited to a disciplinary hearing on 13th March 2025, and given an opportunity to explain himself. She stated that, based on the evidence and the seriousness of the comments, the Respondent decided to summarily dismiss the Claimant, and he was informed of the decision in writing on 14th March 2025. 17.She further stated that the Claimant appealed the dismissal, and the appeal was considered and determined, with the outcome communicated to him on 3rd April 2025. She also stated that on 11th April 2025, the Claimant signed a Release and Discharge Agreement, accepted Kshs. 31,574.14 as full and final settlement of any claims against the company, and agreed not to pursue any further action or claims. According to her, the agreement was signed freely and voluntarily. 18.Ms. Koskei concluded that the Respondent acted fairly, followed the correct process, and that the Claimant’s termination was justified by his conduct. She urged the Court to dismiss the claim with costs. 19.In her witness statement, Alice Mbugua stated that she is employed by the Respondent as the Coastal Region Manager. She stated that on 21st February 2025, she moderated a staff meeting at the workplace, which was attended by about 10 to 15 staff members. The purpose of the meeting was to provide employees with a safe and candid space to raise concerns and encourage constructive dialogue within the organisation. 20.She stated that the meeting began cordially, with staff members contributing respectfully. However, when the Claimant raised what he called issues of concern, his remarks allegedly departed from the forum's tone and spirit. According to her, the Claimant stated that the Respondent employed only women in leadership positions and further alleged that the women holding those positions were not suited to them. He also questioned whether their appointments were based on merit or on “looks.” 21.RW2 stated that the Claimant also alleged that there were no true leaders within the Respondent’s station. In her view, his tone was dismissive and demeaning, particularly towards the female employees present and women in leadership. She stated that the Claimant asserted his remarks reflected others' views, but he offered no proof or corroboration. 22.She stated that she was shocked by the remarks, which she considered a collectivedisparagement of women as leaders and colleagues. She felt intimidated, demeaned and disrespected, and believed that the Claimant’s comments unjustifiably questioned the ability, credibility and standing of women within the organisation. 23.Ms. Mbugua stated that although the meeting was an open forum, staff were still expected to raise concerns in a measured, constructive and respectful manner. In her view, the Claimant’s remarks crossed the line between openness and recklessness and attacked the dignity of his colleagues. She further stated that the Claimant could have raised genuine concerns through more appropriate channels, such as anonymous reporting, structured feedback or private engagement with leadership. 24.She stated that the Respondent’s director, who was present, attempted to address the Claimant’s concerns, but the Claimant persistently shook his head in disapproval, which she interpreted as an attempt to undermine the director’s response. According to her, the director eventually told him, “Stop, young man. I am twice your age.” 25.Ms. Mbugua stated that the Claimant was not merely raising issues, but was challenging authority, belittling his colleagues and disregarding the Respondent’s culture of mutual respect. She stated that she left the meeting deeply unsettled and considered the Claimant’s statements to be insensitive, disrespectful, and invalid. In her view, the remarks undermined the Respondent’s culture of inclusivity and meritocracy, as well as the dignity of women serving in leadership roles. 26.She concluded that the Claimant’s conduct severely strained, and may have irreparably damaged, his professional relationships within the organisation. She believed that his words and manner created division and resentment, making it untenable for him and his colleagues to continue working together harmoniously. She urged the Court to dismiss the claim with costs to the Respondent. Claimant’s Submissions 27.The Claimant submitted that his dismissal was unlawful, procedurally unfair and substantively unjustified. He argued that the Respondent’s disciplinary process was a sham intended to justify a predetermined decision to terminate his employment. 28.On procedural fairness, the Claimant submitted that the staff forum held on 21stFebruary 2025 was convened as a private and confidential forum where employees were encouraged to speak openly. He argued that the Respondent breached that assurance of confidentiality by using remarks made during the forum as the basis for disciplinary action. He relied on Article 50(4) of the Constitution and submitted that evidence obtained in violation of constitutional rights should be excluded where its admission would render the proceedings unfair or harm the administration of justice. 29.The Claimant further submitted that the Respondent failed to comply with its own Human Resource Manual, particularly section 7.7.1, which provided for informal disciplinary action or counselling before resorting to the formal process. He argued that since he had no previous disciplinary record, the Respondent ought to have first engaged him through counselling before commencing formal disciplinary proceedings. 30.He also submitted that there was no proper investigation before the disciplinary hearing. According to him, the Respondent failed to interview him, interview other staff members, gather contextual evidence, or provide him with an investigation report, witness statements or concrete evidence. He argued that this failure rendered the disciplinary process unfair. 31.The Claimant further submitted that the disciplinary hearing violated the rules of natural justice because his witness, Ruth Okeye, was not given a meaningful opportunity to testify in his defence. He also argued that the panel reached a decision to summarily dismiss him overnight, which demonstrated that the decision had been predetermined. He contended that the appeal process was equally flawed because the CEO’s decision merely upheld the disciplinary panel’s decision without addressing the substantive complaints raised in the appeal. 32.On substantive fairness, the Claimant submitted that the allegations against him were based on misinterpretation, bad faith and taking his words out of context. He argued that his comments were made in a complex, humorous and stress-informed discussion and were wrongly presented as discriminatory remarks. He maintained that the “weakest point” comment was metaphorical and team-oriented, while the “sipaki powder” remark was treated as a joke at the time, with people, including the Director, allegedly laughing. 33.The Claimant also submitted that there was no actual complainant or victim. He argued that despite the allegation that his remarks created a hostile and discriminatory environment, no woman allegedly offended by the comments filed a complaint. He submitted that this absence of a complaint showed that the allegations were a management fabrication. 34.He further relied on his employment record, arguing that he had successfully mentored female colleagues and had no warning, counselling note or poor performance record during his employment. In his view, this contradicted the allegation that he was biased against women. 35.The Claimant submitted that the real reason for his dismissal was victimisation for union activity. He argued that he had been involved in pushing for union alignment and collective bargaining, and that the dismissal was an act of anti-union retaliation disguised as disciplinary action. He relied on Article 41 of the Constitution and section 5 of the Labour Relations Act, which protect the right to unionise and prohibit victimisation on account of union activity. 36.On the Release and Discharge Agreement, the Claimant submitted that it was signed under economic duress after he had been dismissed and was financially vulnerable. He argued that the payment of Kshs. 31,574.14 was merely a small amount representing accrued dues and could not amount to valid consideration for waiving a claim for unfair dismissal. 37.In support of this argument, he relied on Sang v Chemusian Farm Limited [2025] KEELRC 412, where the issue of a deed of separation and alleged economic duress was considered. He submitted that although the burden lay on an employee to prove unfair termination despite signing a separation agreement, he had demonstrated that the disciplinary process was flawed and unfair. 38.He also relied on Ireri v Cobra Security Company Limited [2025] KEELRC 154, where the Court observed that discharge vouchers are not absolute and may be invalidated where they are unclear, not understood by the employee, affected by vitiating factors, or contrary to public policy. On that basis, he submitted that the release agreement should be disregarded because it was procured through duress, undue influence and unconscionability. 39.The Claimant further submitted that the dismissal violated his constitutional rights, including the right to fair labour practices under Article 41, fair administrative action under Article 47, fair hearing under Article 50, and dignity under Article 28. 40.He therefore prayed for a declaration that the dismissal was procedurally and substantively unfair and amounted to victimisation. He sought immediate reinstatement with full restitution of lost wages, benefits and seniority, compensation equivalent to 12 months’ gross salary, aggravated or general damages for defamation and injury to dignity in the sum of Kshs. 2,000,000, terminal benefits of Kshs. 128,348, costs on an indemnity basis, and any other appropriate relief. Respondent’s Submissions 41.The Respondent submitted that the Claimant’s claim for unfair termination should be dismissed. It stated that the Claimant’s employment was terminated in March 2025 after he made discriminatory and derogatory remarks directed at female employees during a staff meeting held on 21st February 2025. According to the Respondent, the remarks were inconsistent with its workplace policies and its duty to maintain a safe, respectful and non-discriminatory working environment. 42.On the Release and Discharge dated 11th April 2025, the Respondent submitted that the Claimant voluntarily executed the document after receiving his terminal dues in full. It argued that by signing the discharge, the Claimant confirmed that he had received all sums due to him and released the Respondent from any further claims arising from the employment relationship. The Respondent rejected the Claimant’s allegation of undue influence and economic duress, arguing that he had not proved any threat, coercion, improper influence or unlawful pressure. 43.It relied on Euromec International Limited v Shandong Taikai Power Engineering Company Limited [2021] KEHC 93 (KLR). 44.On the burden of proof, the Respondent submitted that section 47(5) of the Employment Act placed the initial burden on the Claimant to prove that unfair termination had occurred. It relied on Dungani v West Kenya Sugar Company Limited (Employment and Labour Relations Appeal 12 of 2023) [2024] KEELRC 172 (KLR). 45.The Respondent addressed the Claimant’s assertions that the decision was predetermined, that no complainant came forward, that the remarks were made in a private meeting, and that the remarks were taken out of context. 46.It submitted that the Claimant had not produced evidence to prove predetermination. It further argued that Alice Mbugua, who was present at the meeting, gave direct evidence that the Claimant’s remarks made her feel intimidated, demeaned and disrespected, and that they undermined the credibility and standing of women in the organisation. The Respondent therefore submitted that it was inaccurate for the Claimant to allege that there was no complainant or that no one was affected. 47.The Respondent also submitted that the fact that the remarks were made in an internal or private staff meeting did not shield the Claimant from disciplinary action. It argued that a workplace meeting remains part of the employment environment, and that confidentiality does not legitimise discriminatory speech. According to the Respondent, the remarks undermined female leadership, reinforced discriminatory stereotypes, diminished professional authority and created a hostile and exclusionary environment. 48.On validity of the reason for termination, the Respondent submitted that the reasons for summary dismissal were workplace misconduct, gender bias and discrimination. It argued that the remarks made by the Claimant questioned the ability of female leaders and implied that women held leadership positions for reasons other than merit. 49.The Respondent also relied on the “range of reasonable responses” principle from Halsbury’s Laws of England, submitting that the Court should not substitute its own view for that of the employer, but should consider whether a reasonable employer could have dismissed the employee in the circumstances. It argued that the Claimant’s conduct fell within the category of misconduct contemplated by the Human Resource Manual, including the use of abusive or insulting language and discriminatory conduct. 50.The Respondent submitted that the Claimant had admitted during cross-examination that the comments were gender insensitive and discriminatory, and that he would not have made the comments had the meeting not been private and confidential. It also submitted that the Claimant took responsibility for the remarks during the disciplinary hearing and apologised. In the Respondent’s view, the apology did not erase the seriousness of the remarks or the impact they had on female employees. 51.On procedure, the Respondent submitted that it complied with section 41 of the Employment Act. It stated that the Claimant was issued with a Notice to Show Cause dated 6th March 2025, which explained the allegations against him, and that he responded to the same. He was then invited to a disciplinary hearing and informed of his right to be accompanied by a colleague. The hearing took place on 13th March 2025, and the Claimant attended with a witness. Thereafter, the Respondent issued a summary dismissal letter dated 14th March 2025, setting out the reasons for termination. The Claimant appealed, and the outcome of the appeal was communicated to him. 52.The Respondent relied again on Kenya Revenue Authority v Reuwel Waithaka Gitahi & 2 others [2019] KECA 300 (KLR). Analysis and Determination 53.I have considered the pleadings, the witness statements, the evidence [oral in chief, under cross examination, under re- examination, and documentary] and the rival submissions filed by the parties. In my view, the issues that arise for determination are as follows:a.Whether the Release and Discharge Agreement signed by the Claimant bars the present claim;b.Whether the Respondent had a valid and fair reason to summarily dismiss the Claimant;(c) Whether the Respondent complied with the procedural requirements under section 41 of the Employment Act;(d)Whether the Claimant was victimised on account of alleged union activity; and (e) Whether the Claimant is entitled to the reliefs sought. Whether the Release and Discharge Agreement bars the present claim 54.The Respondent’s position is that after the termination of employment, the Claimant signed a Release and Discharge Agreement dated 11th April 2025, accepted payment of Kshs. 31,574.14 and confirmed that the said payment was in full and final settlement of any claims against the Respondent. The Respondent submitted that the Claimant is therefore estopped from pursuing the present claim. 55.The Claimant, on the other hand, contended that the Release and Discharge Agreement was procured under economic duress. He stated that, having been summarily dismissed and being financially vulnerable, he was compelled to sign the agreement in order to access any funds at all. 56.In Coastal Bottlers Limited v Kimathi Mithika [2018] KECA 523 (KLR), the Court of Appeal stated that whether a settlement agreement or discharge voucher bars a party from making further claims depends on the circumstances of each case. 57.In Euromec International Limited v Shandong Taikai Power Engineering Company Limited [2021] KEHC 93 (KLR), the Court stated that a party relying on economic duress must prove a threat of considerable evil, that the fear was reasonable, that the threat was imminent or inevitable, that the threat was unlawful, and that the contract was concluded as a result of the duress. 58.That said, the jurisdiction of this Court in respect of statutory claims under the Employment Act cannot be ousted by a private release agreement. The right of an employee to challenge unfair termination is a statutory right conferred by the Employment Act, and it is not open to an employer to extinguish that right through a contractual instrument, particularly one concluded in circumstances where the employee’s bargaining position was significantly weakened by the loss of employment, and very express on the employee’s waiver to file suit for unfair termination for want of statutory fairness requirements on the part of the employer. Accordingly, the Release and Discharge Agreement does not operate as an absolute bar to the present claim. The amounts already received by the Claimant thereunder shall, however, be taken into account in assessing the quantum of any award. Whether the Respondent had a valid and fair reason to summarily dismiss the Claimant 58. Section 43(1) of the Employment Act provides that in any claim arising out of termination of a contract, the employer shall be required to prove the reason or reasons for the termination. 59.Section 43(2) further provides that the reason or reasons for termination of a contract are the matters that the employer at the time of termination of the contract genuinely believed to exist. 60.Section 45(2) of the Employment Act provides that termination is unfair if the employer fails to prove that the reason for termination is valid, that the reason is fair, and that the employment was terminated in accordance with fair procedure. 61.Further, section 44(3) of the Employment Act provides that an employer may dismiss an employee summarily where the employee has, by his conduct, indicated that he has fundamentally breached his obligations under the contract of service. 62.In Walter Ogal Anuro v Teachers Service Commission [2013] KEELRC 386 (KLR), the Court held that for termination to pass the fairness test, there must be both substantive justification and procedural fairness. 63.In Kenya Revenue Authority v Reuwel Waithaka Gitahi & 2 others [2019] KECA 300 (KLR), the Court of Appeal held that an employer is not required to undertake a near forensic examination of the facts or prove allegations beyond reasonable doubt before taking disciplinary action. The Court stated that the standard of proof is on the balance of probabilities and that the employer is required to prove the reasons it genuinely believed existed at the time of termination. 64.The reason given by the Respondent for summarily dismissing the Claimant was workplace misconduct, gender bias and discrimination arising from comments allegedly made during the staff forum held on 21st February 2025. The central question is whether the remarks attributed to the Claimant were of such a nature as to constitute gender discrimination or misogynistic conduct that could validly justify summary dismissal. 65.The Claimant did not deny speaking at the forum. His position was that his remarks were taken out of context and were not intended to demean or discriminate against anyone. He stated that his call for colleagues to “step up” stemmed from genuine frustration following an operational disruption in which he felt unsupported, and that his comments were directed at operational leadership failures generally, not at women as a group. 66.Having carefully considered all the evidence, I am not satisfied that the Claimant’s words, as disclosed by the evidence, constituted gender discrimination or misogynistic conduct. The following considerations are material to this conclusion. 67.First, the forum was expressly convened as a safe and candid space for employees to voice concerns. The Director of Operations was present, and the stated purpose of the gathering was to encourage open and constructive dialogue. In that context, it was entirely foreseeable that employees would raise difficult or uncomfortable issues about management, leadership or operational effectiveness. The Claimant’s participation in that exchange, while perhaps blunt and ill-judged in tone, was broadly consistent with the nature of the forum. 68.Second, the Claimant’s comments, as described in the evidence, appear to have been directed primarily at what he perceived as a failure of leadership and operational support at the station, rather than at the gender of the leaders concerned. The observation that the station lacked effective leadership and that certain appointments may not have been merit based is, on its face, a critique of organisational management and not necessarily an expression of bias against women as a class. It is of some significance that the Claimant mentored female colleagues throughout his employment and had no prior disciplinary record of conduct reflecting gender bias or discriminatory attitudes. 69.Third, no formal complaint was lodged by any of the women allegedly offended by the remarks. While Ms Alice Mbugua testified that she felt demeaned and disrespected, she did so as a management witness rather than as a complainant who had herself initiated a grievance. The absence of any formal complaint from the affected employees is a relevant circumstance, though not determinative in itself. 70.Fourth, the “sipaki powder” remark, which was one of the comments relied upon, was apparently received as a joke at the time, with the Director and others reportedly laughing, before it was later characterised as misconduct. A remark that was not perceived as discriminatory or offensive at the time of its utterance presents a weaker foundation for a finding of gender-based misconduct. 71.Fifth, the sanction of summary dismissal is the most severe disciplinary outcome available to an employer. It is reserved for cases of serious misconduct that fundamentally undermines the employment relationship. Even accepting that the Claimant’s remarks were inappropriate and caused offence to some of those present, the evidence does not establish that they rose to the level of gross misconduct warranting summary dismissal without notice. The Claimant had a three-year clean record with the Respondent. The Respondent’s own Human Resource Manual provided for informal counselling as a precursor to formal disciplinary action in appropriate cases. No such step was taken. 72.The proportionality inherent in the foregoing considerations finds powerful support in comparative common law jurisprudence on the doctrine of summary dismissal. In McKinley v. British Columbia Telephone Co., [2001] 2 S.C.R. 161, 2001 SCC 38, the Supreme Court of Canada, in a judgment delivered by Iacobucci J. for the majority, rejected the proposition that misconduct, of whatever nature or gravity, automatically clothes an employer with just cause for summary dismissal. Although the impugned conduct in that case was dishonesty, the Court's articulation of the contextual and proportionate test is one of general application to workplace misconduct, and requires that the nature and seriousness of the impugned conduct be weighed against the sanction of dismissal, so as to determine whether the employment relationship can, in the circumstances, still viably subsist. The Court stated as follows:“Underlying the approach I propose is the principle of proportionality. An effective balance must be struck between the severity of an employee’s misconduct and the sanction imposed. … Such an approach mitigates the possibility that an employee will be unduly punished by the strict application of an unequivocal rule that equates all forms of dishonest behaviour with just cause for dismissal. At the same time, it would properly emphasize that dishonesty going to the core of the employment relationship carries the potential to warrant dismissal for just cause.” (McKinley v. British Columbia Telephone Co., [2001] 2 S.C.R. 161, 2001 SCC 38, at para. 53.)“[T]he test is whether the employee’s dishonesty gave rise to a breakdown in the employment relationship. This test can be expressed in different ways. One could say that just cause for dismissal exists where the dishonesty violates an essential condition of the employment contract, breaches the faith inherent to the work relationship, or is fundamentally or directly inconsistent with the employee’s obligations to his or her employer.” (Ibid, at para. 48.) 73.Applying that contextual and proportionate test, which this Court respectfully adopts as sound and persuasive authority, and one entirely consonant with the requirement in section 45(2) of the Employment Act that a reason for termination be both valid and fair, to the facts of this case reinforces, rather than displaces, the conclusion already reached. The Claimant’s remarks were made in a forum expressly convened to elicit candid views, arose out of a genuine grievance over leadership and operational support, and were made by an employee of three years’ unblemished service who had never previously been counselled or warned. On a contextual and proportionate assessment, they cannot be said to have violated an essential condition of his contract of employment, to have breached the faith inherent in the employment relationship, or to have been fundamentally or directly inconsistent with his obligations to the Respondent, so as to render the relationship no longer viable. Summary dismissal, being the most severe sanction available to an employer, was, on this analysis, a disproportionate response to the Claimant’s conduct. 74.On the allegation of union victimisation, the Claimant asserted that the true reason for his dismissal was his role in mobilising employees for collective bargaining. While the Court notes this allegation, the Claimant has not presented sufficient evidence to infer anti-union animus. The allegation is therefore not established. 75.I accordingly find that the Respondent has not proved, on a balance of probabilities, that the reason for the summary dismissal was valid and fair. Judged contextually and proportionately, the termination of the Claimant’s employment was substantively unfair. Whether the Respondent complied with section 41 of the Employment Act 76.Section 41(1) of the Employment Act provides that before terminating the employment of an employee on grounds of misconduct, poor performance or physical incapacity, the employer must explain to the employee, in a language the employee understands, the reason for which termination is being considered, and the employee is entitled to have another employee or shop floor union representative present. 77.Section 41(2) further requires the employer, before terminating or summarily dismissing an employee, to hear and consider the representations made by the employee and the person chosen by the employee. 78.In Kenya Revenue Authority v Reuwel Waithaka Gitahi & 2 others [2019] KECA 300 (KLR), the Court of Appeal set out the four elements of procedural fairness under section 41 as follows:a.an explanation of the grounds of termination in a language understood by the employee;b.the reason for which the employer is considering termination;c.entitlement of an employee to the presence of another employee of his choice; and(d) hearing and considering any representations made by the employee and the person chosen by the employee. 79.The evidence before the Court shows that the Claimant was issued with a Notice to Show Cause dated 6th March 2025, setting out the allegations against him. He responded to the said notice. He was then invited to a disciplinary hearing scheduled for 13th March 2025 and was informed of his right to be accompanied by a fellow employee. He attended the hearing with a witness. Thereafter, the Respondent issued the summary dismissal letter dated 14th March 2025. The Claimant appealed against the decision, and the Respondent communicated the outcome of the appeal on 3rd April 2025. 80.While the Claimant raised concerns about the speed of the process and the adequacy of his witness’s participation, the evidence does not disclose a material departure from the procedural requirements of section 41. The Claimant was informed of the allegations against him, was given an opportunity to respond, attended the hearing with a representative of his choice, and had the benefit of an appeal process. The objections raised – including the short interval between the Notice to Show Cause and the hearing, and the manner in which his witness was questioned – while noted, do not rise to the level of a fundamental procedural failure. 81.I therefore find that the Respondent substantially complied with the mandatory requirements of section 41 of the Employment Act. The termination was procedurally fair. Whether the Claimant is entitled to the reliefs sought 82.Having found that the termination was substantively unfair but procedurally fair, I proceed to consider the appropriate reliefs. 83.On reinstatement, the prayer for reinstatement is declined. The animosity and mutual loss of trust occasioned by the disciplinary proceedings and the manner in which they were conducted render reinstatement impracticable. This Court’s discretion under section 49(3) of the Employment Act is exercised accordingly. 84.On compensation under section 49(1)(c) of the Employment Act, the Court is required to consider all the circumstances of the case, including the extent to which the termination complied with the procedural requirements, the length of service and the employee’s conduct. Having regard to the fact that the termination was substantively unfair but procedurally fair, and taking into account the Claimant’s three years of service, his clean disciplinary record, and the fact that his remarks, while inappropriate in tone, were made in the context of an expressly open and confidential forum, I award compensation equivalent to Eight (8) months’ gross salary: Kshs. 440,000. 85.On notice pay, given that the summary dismissal was not substantively justified, the Claimant is entitled to one month’s salary in lieu of notice: Kshs. 55,777.34. 86.On service pay, having served for three years, the Claimant is entitled to service payKshs. 64,174.00 as pleaded; otherwise, this Court could have awarded KShs. 83,664.01, the correct amount. 87On general damages for alleged defamation and injury to dignity, the Claimant has not proved the elements of defamation to the required standard, nor has he established that the Respondent’s conduct amounted to an independent actionable wrong beyond the unfair termination already addressed. This head of claim fails. 88.On the Release and Discharge Agreement, the sum of Kshs. The amount of 31,574.14 already received by the Claimant thereunder shall be set off against the total award. Disposition 89.In the premises, it is hereby ordered as follows:a.A declaration is hereby issued that the termination of the Claimant’s employment was substantively unfair.b.The Respondent shall pay the Claimant compensation for unfair termination in the sum of Kshs. 440,000.c.The Respondent shall pay the Claimant one month’s salary in lieu of notice in the sum ofKshs. 55,777.34.d.The Respondent shall pay the Claimant service pay in the sum of Kshs. 64,174.00.e.The total award of Kshs 559,951.34 shall be set off by the sum of Kshs. 31,574.14 already received by the Claimant under the Release and Discharge Agreement, leaving a net sum of Kshs 528,377.20 payable by the Respondent.f.Interest on the awarded sum, at court rates from the date of this judgment till full payment.h.The prayers for reinstatement, general damages for defamation and aggravated damages are dismissed.i.The Claimant shall have costs of this cause. 90.It is so ordered. DELIVERED AT MOMBASA THIS 25TH DAY OF JUNE 2026.OCHARO KEBIRAJUDGE