[2025] KEELRC 1290 (KLR)

Okoth v Water Bus Globology Limited (Cause E084 of 2024) [2025] KEELRC 1290 (KLR) (7 May 2025) (Judgment)

Neutral citation: [2025] KEELRC 1290 (KLR)

Republic of Kenya

In the Employment and Labour Relations Court at Kisumu

Cause E084 of 2024

JK Gakeri, J

May 7, 2025

Between

Steve Onyango Okoth

Claimant

and

Water Bus Globology Limited

Respondent

Judgment

1. By a Memorandum of Claim dated 4th October, 2024 and filed on 19th October, 2024, the claimant instituted proceedings against the respondent alleging unlawful and unfair termination of services and summary dismissal.

2. The claimant’s case is simply that he was employed by the respondent on 8th May, 2018 as an officer but rose to the position of Operations Manager at Kshs.109,726 and was transferred to Kisumu where he served diligently until 16th July, 2024 when his employment was terminated vide letter dated 15th July, 2024.

3. The claimant admitted that the employer had raised some unsubstantial claims against him and issued a notice to show cause which he responded to vide response dated 29th June, 2024 was served with an invitation for a disciplinary hearing.

4. The claimant faults the termination on the grounds that no evidence of investigations was availed, procedures were not complied and was dismissed without notice and prays for:a.Declaration that termination of employment was unfair, wrongful, unlawful and illegal.b.General damages equivalent of 12 months salary, at Kshs.109,726. 00c.Salary in lieu of notice Kshs.109,726. d.Costs and interest of the suit.e.Such other relief that the court may deem just and fit to grant.

Respondent’s case 10. The respondent admitted that it employed the claimant in May 2019 and appointed him Operations Manager thereafter. It denies that the claimant was a diligent employee or having dismissed him unfairly.

11. The respondent admits that it placed the claimant on a Performance Improvement Plan (P.I.P) vide letter dated 23rd October, 2023 and issued a notice to show cause dated 26th May, 2022, on safety and boarding procedures and disciplinary hearing was held.

12. It is the respondent’s case that another notice to show cause had been issued earlier on 4th April, 2022 on riding a motor cycle up the ramp into the cargo space on 3rd April, 2022 and a hearing on 5th April, 2022.

13. The respondent further avers that a 3rd notice to show cause dated 21st February, 2024 was issued for draining of domestic batteries on two vessels MV Koome and MV Atego, attended a hearing on 26th March, 2024 and was later suspended on 3rd May, 2024 for purposes of investigations for misconduct and performance and a notice to show cause issued on 28th June, 2024 detailing his misconduct and responded vide letter dated 29th June, 2024, was invited for hearing vide letter dated 4th July, 2024 attended on 10th July, 2024 and employment was terminated vide letter dated 15th July, 2024 and was paid salary in lieu of notice.

14. It is the respondent’s case that the claimant’s dues were paid in full and a Certificate of Service issued and termination of the claimant’s employment was procedurally justifiable and fair.

Claimant’s evidence 15. In his written witness statement, the claimant states that he started working on 8th May, 2018 and the written contract dated 17th June, 2022 confirms as much under clause 1. 0(1. 1).

16. On cross-examination, the claimant admitted having received the notice to show cause dated 25th May, 2022 and attended a hearing and received a final warning letter.

17. Finally, the claimant admitted having received a notice to show cause dated 21st February, 2024 responded and attended a hearing and received a suspension notice dated 3rd May, 2024.

18. He admitted having received the last notice to show cause dated 28th June, 2024, responded and attended a hearing in the company of a colleague and explained himself.

19. The claimant admitted having received a cheque of Kshs.333,491. 00 and a certificate of service.

20. On re-examination, the claimant testified that his defence was not considered and was not paid the full salary in lieu of notice as he had served for 5 years.

Respondent’s evidence 21. RWI, Annie Ng’ang’a confirmed on cross-examination that the respondent had no Operations Manager and she was not acting in the position.

22. The witness confirmed that since the claimant had served for more than 5 years, he was entitled to 2 months notice and respondent paid one (1) months salary.

23. That the claimant was on annual leave from 20th January to 20th February 2024. That the issue of the batteries was resolved after the hearing.

24. The witness testified that although the respondent had a technical manager, everything was reported to the Operations Manager and he had, been given the areas that required improvement and a meeting had taken place with the Supervisor and Human Resource but there was no appraisal report.

25. That Benjamin Maasai was employed while the claimant was still in employment and was Head of Operations, not Operations Manager.

26. That Maasai was in charge of Safety Process Development and Operations and did not take over from the claimant.

27. The witness testified that it was the claimant’s duty to construct jetties, as the Operations Manager and was also a coxswain and it was his duty to ensure passenger safety and the Jetty.

28. That he was to draft the tender document, having complained about the supplier, but did not do so.

29. That by the time the claimant left there were five (5) vessels and fuel consumption depended on the route taken and consumption was fixed though the speed could affect consumption and the claimant did not provide satisfactory responses.

30. The witness denied that the claimant’s dismissal was malicious or that Benjamin Maasai was intended to replaced him.

Claimant’s submissions 31. As to whether termination of the employment was unfair, wrongful or unlawful, counsel for the claimant cited the provisions of Section 45 and 43 of the Employment Act, as well as the decision in Mary Chemweno V Kenya Pipeline Co. Ltd [2014] eKLR, Walter Ogal Anuro V Teachers Service Commission [2013] eKLR, Janet Nyandiko V Kenya Commercial Bank Ltd [2017] eKLR and Kenfreight East AFrica Ltd V Benson K. Nguti [2019] eKLR, to submit whereas the employer bears the burden of proving that termination of employer was justified, the employee is only bound to show that it was unfair.

32. Counsel urged that the claimant responded to the notice to show cause, was invited to and participated in the hearing but no evidence of the alleged investigation was availed to establish the respondent’s allegations and no prior warning was issued on the intended termination of employment, which was effected without notice, contrary to the provisions of the Employment Act, and the claimant had not engaged in any form of misconduct and the allegations against him were unjustified, unfair and unsubstantial and he responded to them.

33. As regards previous notice to show cause, counsel submitted that this was a plan to frustrate the claimant in that whereas the Human Resource was incharge of safety and passenger boarding on MV Sigolu when the claimant was on leave, the issue of batteries was attributed to him as opposed to human resource.

34. That the battery on MV Atego was not faulty but the crew failed to switch off the circuit breaker.

35. Counsel further submitted that as regards Asembo Bay, the claimant received the cash from the accountant at 5:00pm, deposited it with the truck driver and asked for a receipt which took time and the stones were delivered after 5:00pm and the claimant was suspended on the following day.

36. As regards fuelling, counsel submitted that requisitions were raised a day prior to the fuelling and the Operations Manager reviewed the previous consumption and prevailing weather conditions and trips covered.

37. That the claimant’s performance was discussed without appraisal report.

38. Counsel urged that the respondent had failed to discharge its burden of proof under Section 43 of the Employment Act.

39. Concerning procedure, reliance was placed on the provisions of Section 41 of the Employment Act and the sentiments of the court in Gregory Musamali V G4S Security Services Ltd [2016] eKLR, to submit that although the claimant was subjected to a hearing, he was not served with evidence of the investigation conducted by the respondent, which vitiated the procedure and was thus entitled to the reliefs sought, Kshs.1,426,438. 00 with costs.

Respondent’s submissions 40. As regards termination of the claimant’s employment, counsel for the respondent relied on the provisions of Section 43, 47(5) and 41 of the Employment Act as well as the sentiments of the Court in Anthony Mkala Chitavi V Malindi Water & Sewerage Co. Ltd [2013] eKLR to submit that for a termination of employment to pass the fairness test the employer must discharge its burden of proof as to the reason(s) for termination and procedural fairness and using the band of reasonable responses test, the respondent had proved its case and had availed documentary evidence to that effect.

41. Counsel submitted that the circumstances in which the respondent found itself would actuate a reasonable employer in similar circumstance to act in the same manner as espoused in British Leyland (UK) V Swift [1981] I.R.L.R. 91.

42. Counsel, further submitted that the claimant failed to discharge the burden of proof that termination of his employment was unfair.

43. Concerning the reliefs sought, counsel submitted that the claimant was paid one month’s salary notwithstanding the summary dismissal and was not entitled to compensation having been paid severance pay of Kshs.315,219. 23 notwithstanding the fact that he was not declared redundant.

Analysis and determination 44. It is common ground that the claimant was an employee of the respondent effective May 2018 until 16th July, 2024 when his employment was terminated vide letter dated 15th July, 2024. The claimant was initially employed as an Operations Officer and later Operations Manager.

45. It is also not in dispute that the claimant had been issued with previous notices to show cause and appeared for disciplinary hearing but appear to have exonerated himself from culpability save for a final warning dated 5th May, 2022 on violation of safety regulations of the respondent.

46. However, that was not the basis on which the claimant’s employment was terminated.

47. As regards the notice to show cause dated 21st February, 2024 on the MV Koome and MV Atego Domestic Batteries, RWI confirmed that the claimant was at the material time on annual leave from 22nd January, 2024 to 20th February, 2024 and could not have been faulted for failure to act.

48. Similarly, the claimant was in the filed on 20 – 22nd January 2024 to repair the Sindo Jetty.

49. The hearing on 26th March, 2024 did not culminate in a warning or reprimand.

50. Equally not in contest is the fact that by letter dated 3rd May, 2024 the claimant was suspended from employment for 2 months until 3rd July, 2024 pending investigations allegedly on allegations of workplace misconduct and performance related concerns.

51. The suspension came hot on the hills of an engagement between the claimant and the Acting Chief Executive Officer of the respondent, one Mr. Pritt Okoth on 2nd May, 2024, on the delivery of stones for the Kamito landing site ordered through one Mr. Tom the respondent’s agent for Kunya. The claimant had advised the agent that due to flooding at the beach, the trucks be placed on two different locations on the landing site, the passenger drop off and home port and the agent requested for payment at 4:00pm but a misunderstanding on the mode of payment arose as a requisition was required for the payment to be processed.

52. The claimant explained how he sought pictures of the stones delivered from the Kamito agent to originate the requisition and cash was received from the accountant, one Mr. Antony Odhiambo after 5:00pm and payment was effected upon the truck driver after 7:00pm on the same day after receipts were provided by the truck driver on WhatsApp.

53. The respondent’s notice to show cause dated 28th June, 2024 accused the claimant of violating fuel directions, vessel long trips to Remba landing site, Asembo Bay site repairs, insubordination and delivery of fuel tender document.

54. The claimant’s response dated 29th June, 2024 provided a detailed account to each allegation.

55. The claimant explained that the issue of excess fuel had been raised earlier by one Benandet Awuor and he responded via email, that MV Koome and MV Sigulu took 200 Litres of fuel each on 27th April, 2024, accounting for 400 litres of the 700 litres. That MV Sigulu travelled to Yokia to Ugina for a funeral trip, to Mbita then to Ugina again and back to Mbita and mlundu the home port.

56. That MV Sigulu received an extra 200 litres on its trip from mlundu to Sori due to roughness of the lake in the last weeks of April.

57. That although MV Koome had requested for 1200 litres the claimant reduced it to 1100 litres and insisted on efficiency.

58. As regards vessel is long trips to Remba, the claimant stated that the rough weather led to the agreement on the Remba to Ugina route pending the sorting out of the Jetty and depended on staff from production who had other assignments and materials had been bought but Mr. Pritt Okoth was against engagement of external welders in light of quality of work and costs.

59. On Asembo Bay repairs, the claimant stated that he had visited the site and it was waterlogged and the trucks mentioned above were delivering stones at the site before the claimant’s suspension.

60. Finally, on delivery of the fuel tender document, the claimant stated that it was brain child and had originated drafts and shared with everyone at the Kisumu Head Office and Sally Rodney and Mr. Wycliffe provided comments and had shared a 2nd draft by the date of suspension.

61. On cross-examination, RWI, Annie Ng’ang’a testified that the respondent had no policy on fuel and it was the claimant’s duty to ensure delivery of the stones on time and he did not report back on the day he was expected to do so.

62. RWI testified that fuel consumption depended on the route a vessel was plying and the consumption for each vessel was fixed.

63. The witness confirmed that as the Operations Manager, it was the claimant’s duty to construct jetties but decided to do the paper work for production to act. It was his duty to give recommendations to the productions department.

64. RWI equally confirmed that the claimant was to prepare the tender document but kept on postponing it and had not done so by the date of suspension.

65. Evidence on record shows that in his explanation of usage of the 700 litres of fuel, while 600 litres was accounted for 100 litres was not.

66. Similarly, the claimant did not avail the tender document he had undertaken to prepare and more should have done concerning the repair of the Asembo Bay.

67. Although the claimant had no expertise in building and construction, he was the Operations Manager, responsible for all operational areas including landing sites. It was his duty to ensure that they were operational and safe.

68. The disclosure that respondent had morning management briefs is also instructive as this was where all concerns would be raised and action points agreed upon, by whom and time frames.

69. Whereas the claimant’s counsel rubbished the grounds on which the claimant’s employment was terminated as unsubstantial and unjustified, the respondent’s counsel urged that a reasonable person in the respondent’s position would have been justified in terminating the claimant’s employment.

70. By its letter of termination, dated 15th July, 2024 the respondent stated that the claimant was guilty of gross misconduct on account of violation of company policies, insubordination and unfavourable work-ethics.

71. Significantly, although the claimant was suspended vide letter dated 3rd May, 2024 “pending the outcome of an investigation into allegations of workplace misconduct and performance related concerns,” neither the alleged misconduct or concerns were disclosed to the claimant prior to the suspension bearing in mind that the claimant had previously been subject to a disciplinary hearing on 26th March, 2024.

72. Regrettably, the report prepared by one Roy Bwabi entitled ‘Report on Waterbus Crew Best Practices on Board 2nd to 4th June, 2024’, and filed by the respondent was unauthenticated.

73. But more importantly, the report did not implicate the claimant or any other person in identifiable wrong-doing.

74. The report was unequivocal that the respondent “has very professional competent and well adjusted crews manning their vessels… All efforts should be made to hold on to these crew as the company expands”.

75. The only issue of concern, was the apparent differences between the management and operations team and the investigator’s prescription was trust and consultations between the two sides.

76. Although the report implicated the claimant’s position as the Operations Manager, it was sufficiently general to enloop other officers in the respondent’s management or perceived by crew members as management.

77. However, the claimant was the link between the crew and the top management of the respondent and the concerns about welfare of the crew, debriefing of crew and professionalism, principally calls to and from the crew, communication and trusting of the captains and operations officer implicated the claimants docket.

78. The consequent notice to show cause isolated five (5) charges which the claimant responded to vide his response dated 29th June, 2024 explaining all the circumstances as adverted to elsewhere in this Judgment.

79. Although RWI admitted that the respondent had no fuel policy, she testified that the five (5) vessels had fixed consumption of fuel although she admitted that speed would impact on fuel consumption.

80. The claimant did not deny the fact there had been a change in fuelling and an extra 700 litres was involved.

81. For unexplained reason, the claimant, while aware of the excess fuel did not disclose its usage until he received the notice to show cause and the same had occurred more than one (1) month earlier. A copy of the alleged email to Awuor ws not availed.

82. Finally, while the claimant’s explanation of the long trip to Remba was sufficiently captured in his response, the repairs of Asembo Bay and delivery of the fuel lender document were not.

83. Intriguingly, the claimant did not respond to the charge on insubordination. A statement to the effect that he needed more information or particulars on the charge would have sufficed but left the charge unresponded to which could be construed as an admission and it turned out to be one of the reasons for termination of the claimant’s employment.

84. Would a reasonable employer have terminated the employee’s employment in those circumstances?

85. In responding to this question, the court is guided by the provisions of the Employment Act and case law.Section 43(2) of the Employment Act provides that:

86. The reason or reasons for termination of a contract are the mattes that the employer at the time of termination of the contract genuinely believed to exist, and which caused the employer to terminate the services of the employee.

87. See the sentiments of the Court of Appeal in Naima Khamis V Oxford University Press (EA) Ltd [2017] eKLR.

88. In Galgalo Jarso Jillo V Agricultural Finance Corporation [2021] eKLR B. O. Manani J held as follows:“In other words it is not a requirement of the law that the substantive ground informing the decision to terminate must in fact be in existence. All that is required is for the employer to have a reasonable basis for genuinely believing that the ground exists even if it turns out that it in fact did not exist. In my view, what the law is concerned with here is whether the circumstances surrounding the decision to terminate would justify a reasonable man on the street standing in the same positon as the employer, to reach a similar decision as him/her regarding the termination”.

89. Similarly, in Kenya Revenue Authority V Reuwel Waithaka Gitahi and 2 others [2019] eKLR the Court of Appeal held:“We have carefully re-evaluated the evidence on record on this issue and we think, with respect that the trial court applied a skewed standard of proof and certainly not the one provided under Section 43(1) of the Act…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 service.That is a partly subjective test”.

90. The foregoing sentiments are consistent with the band or range of reasonable responses test in Halsbury’s Laws of England 4th Edition Vol. 16(1B) paragraph 642 as follows:“…In adjudicating on the reasonableness of the employer’s conduct an employment tribunal must not substitute its own views for those of the employer and decide whether it would have dismissed on those facts; it must make a wider inquiry to determine whether a reasonable employer could have decided to dismiss on those facts.The basis of this approach (the range of reasonable responses test is that in many cases there is a band of reasonable responses to employee’s conduct within which one employer might reasonably take one view and another quite reasonably take another, the function of a tribunal as an industrial jury is to determine whether in the particular circumstances of each case the decision to dismiss the employee fell within the band of reasonable responses which a reasonable employer might have adopted. If the dismissal falls within the band, the dismissal is fair but if the dismissal falls outside the band, it is unfair”.

91. In the instant case, the court is satisfied that the respondent has demonstrated that it had reasonable ground to genuinely believe that the dismissal of the claimant was justifiable.

92. The fact that the excess utilization of fuel was documented in the notice to show cause, the justification notwithstanding, the fact that the Asembo Bay was in disrepair and the tender document the claimant had undertaken to prepare was still outstanding as at the date of termination informed the respondent’s belief that it had a reasons to act in the manner it did.

Procedure 93. On procedure, while the claimant’s counsel submitted that the claimant was not accorded an opportunity to be heard, the respondent submitted that the provisions of Section 41 of the Employment Act were complied with and the requirements set out in Anthony Mkala Chitavi V Malindi Water & Sewerage Co. Ltd [2013] were met.

94. In Postal Corporation of Kenya V Andrew K. Tanui, [2019] eKLR, the Court of Appeal stated:“Four elements must thus be discernible for the procedure to pass muster: -(i)an explanation of the grounds of termination in a language understood by the employee;(ii)the reason for which the employer is considering termination;(iii)entitlement of an employee to the presence of another employee of his choice when the explanation of grounds of termination is made;(iv)hearing and considering any representations made by the employee and the person chosen by the employee”.

95. The claimant faulted the procedure on the premises that he was not furnished with any evidence unearthed by the respondent’s investigation which necessitated the suspension, to enable him effectively exercise his right to be heard.

96. It is evident that the claimant was issued with and received a notice to show cause dated 28th June, 2024, which demanded a response by 3rd July, 2024, which in the court’s view was reasonable notice and responded vide letter dated 29th June, 2024 and was by letter dated 4th July, 2024 invited for a disciplinary hearing slated for 10th July, 2024 and was informed of his right to attend with a witness.

97. The notice however, did not set out the agenda of the meeting, which would appear to suggest that the claimant was to assume that the charges he would face would be identical to those set out in the notice to show cause.

98. Typically, the invitation for the hearing is supposed to set out the charges the employee will be facing at the hearing to facilitate his/her preparation for hearing. It is an integral part of his right to be heard and fair hearing.

99. Strangely, although the invitation letter makes reference to the claimant’s response, it is silent on the insufficiency of the answers given to the specific allegations.

100. Even assuming that the claimant was aware of the charges he would face, he was not given a copy of the investigation report to enable him prepare adequately for his defence.

101. From the contents of the letter of termination of employment dated 15th July, 2025, it is discernible that the respondent relied on the investigation report on record, and having denied the claimant a copy, the disciplinary process was vitiated.

102. It is trite law that the employer is required to avail all the documents and evidence it relies upon in formulating the notice to show cause and use during the hearing.

103. In Ol Pejeta Ranching Co. Ltd V David Wanjau Muhoro [2017] eKLR, the Court of Appeal held:“…Fairness in the circumstances would inform that the respondent be supplied with the allegations against him in sufficient detail to adequately prepare for a defence…There was no reason given as to why the respondent could not have been supplied with a copy much earlier and in good time…That coupled with the fact that he had no knowledge of the audit findings, he had no fair chance to advance his defence. In the circumstances, therefore it cannot be said that the termination process was fair”.

104. Similarly, in Postal Corporation of Kenya V Andrew K. Tanui (Supra) where the appellant refused to avail the basis of the charges against the respondent, the Court of Appeal stated:“The board had in its possession the very document that formed the basis of the charges framed against the respondent but kept it away from him. Even in criminal trials, which are more serious in nature, the accused is entitled to the statements that support the charges laid against him. That is the essence of fairness outside a judicial setting. The respondent faced serious indictments which could torpedo his entire career and destroy his future”.

105. See also Regent Management Ltd V. Wilberforce Ojiambo Oando [2018] eKLR where the appellant had denied the respondent documents even after request for them.

106. Having failed to avail a copy of the investigation report to the claimant, the basis of his suspension, the respondent cannot be heard to say that it accorded the claimant a fair hearing.

107. The document addressed the claimant’s department and isolated concerns which required corrective action and which impacted on the outcome of the hearing.

108. Also notable, from the hand written minutes on record, it is clear that the charges the claimant was facing were not read out to him. “Human Resource” the minutes read “Introduced the meeting” and asked the claimant why he had no witness”. The charges must be explained in a language understood by the employee whether the employee has a fellow employee or not. This is because, it is the foundation of the hearing.

109. Needless to belabour, the procedure employed by the employer in terminating an employee’s employment is one of the cardinal requirements of Section 45(2) of the Employment Act and it is one of the essential elements the court must consider in determining whether the employer acted in accordance with justice and equity under Section 45(4) and (5) of the Employment Act.

110. From the foregoing, it is discernible that the court is satisfied that the termination of the claimant’s employment by the respondent fell below the threshold of a fair one in this instance.

Appropriate reliefs Salary in lieu of notice 111. Although the claimant’s employment was terminated on 16th July, 2024, he was not paid in lieu of notice. The respondent’s letter is clear that the dismissal was summary which does not qualify for pay in lieu of notice under Section 44(1) of the Employment Act.

112. However, he was paid one month’s salary.Having found that the respondent had justifiable reasons to terminate the claimant’s employment, the claim for salary in lieu of notice is unmerited.

Compensation for unfair termination 113. Having found that the termination of the claimant’s employment by the respondent was unfair, the claimant is entitled to compensation by dint of Section 49(1)(c) of the Employment Act.

114. Considering that the respondent had a reason to terminate the claimant’s employment, the claimant had been an employee for about 6 years, did not appeal the respondent’s decision or express his wish to remain in employment, was paid severance Kshs.315,219. 23 and had a previous disciplinary hearing and warning, the equivalent of 2 months gross salary is fair Kshs.219,452. 00.

115. In the upshot, Judgment is entered in favour of the claimant against the respondent in the following terms:a.Declaration that termination of employment was unfair and unlawful.b.Equivalent of two (2) month’s gross salary Kshs.219,452. 00. c.50% costs of this suit.

DATED, SIGNED AND DELIVERED VIRTUALLY AT KISUMU ON THIS 7TH DAY OF MAY, 2025. DR. JACOB GAKERIJUDGEOrderIn view of the declaration of measures restricting court operations due to the COVID-19 pandemic and in light of the directions issued by His Lordship, the Chief Justice on 15th March 2020 and subsequent directions of 21st April 2020 that judgments and rulings shall be delivered through video conferencing or via email. They have waived compliance with Order 21 Rule 1 of the Civil Procedure Rules, which requires that all judgments and rulings be pronounced in open court. In permitting this course, this court has been guided by Article 159(2)(d) of the Constitution which requires the court to eschew undue technicalities in delivering justice, the right of access to justice guaranteed to every person under Article 48 of the Constitution and the provisions of Section 1B of the Civil Procedure Act (Chapter 21 of the Laws of Kenya) which impose on this court the duty of the court, inter alia, to use suitable technology to enhance the overriding objective which is to facilitate just, expeditious, proportionate and affordable resolution of civil disputes.DR. JACOB GAKERIJUDGE