https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1335

**REPUBLIC OF KENYA** **IN EMPLOYMENT AND LABOUR RELATIONS COURT AT ELDORET** **ELRC NO. E014 OF 2024** *(Before Hon. Lady Justice Maureen Onyango)* **JACKSON BULIMO OMINDE ……………………....... CLAIMANT** **VERSUS** **WESTERN STEEL MILLS ……………………….…. 1ST RESPONDENT** **ABYSSINIA GROUP OF INDUSTRIES ………….. 2ND RESPONDENT** **JUDGMENT** 1. Vide a Memorandum of Claim dated 18th April, 2024, the Claimant avers that his employment was unfairly terminated by the Respondents. The Claimant avers that he was employed by the Respondents as Human Resource Manager with effect from 10th November, 2017 and worked diligently until 9th February, 2023 when he was summarily dismissed from employment. He avers that the summary dismissal did not comply with the laid down procedure and was therefore unfair. He further avers that there was no valid reason for the summary dismissal. 2. He seeks the following remedies from this court: 1. A declaration that his dismissal from employment was unlawful, unprocedural and unfair and in the circumstance the Claimant is entitled to compensation as prayed for in paragraph 16 above. 2. Costs of this suit and interest at court rates form time of filing this suit until payment in full. 3. A Certificate of Service as per section 51 of the Employment Act. 4. Any other relief that the Honourable Court may deem fit and just to grant. 3. The Respondents are limited liability companies registered under the companies Act. In their joint Memorandum of Response dated 9th December, 2024, the Respondents state that the Claimant was employed as Human Resource Manager of the 1st Respondent in Eldoret vide a contract dated 7th November, 2017. The contract was for 2 years commencing 10th November, 2017 and lapsing on 9th November, 2019. 4. The Respondents aver that upon the lasing of the contract the Claimant and 1st Respondent entered into a subsequent contract dated 10th November, 2019. 5. The Respondents aver that by letter dated 1st July, 2021 the Claimant was informed that the 2nd Respondent would assume control of the 1st Respondent’s operations and as part of the transition the 2nd Respondent would take over the Claimant’s employment. Consequently the Claimant was issued with a new employment contract dated 1st July, 2021 designating the 2nd Respondent as his employer. 6. The Respondent’s aver that under clause 2 of the contract dated 1st July, 2021 the 2nd Respondent could reassign the Claimant in any other capacity as required by the 2nd Respondent. That the 2nd Respondent initiated the process of transferring the Claimant from his role as Human Resource Manager, Eldoret Plant, to Human Resource Manager Kitengela Plant but the Claimant deliberately and persistently refused to comply with the lawful directive which according to the Respondents amounted to insubordination. 7. The Respondents aver that upon acknowledging the Claimant’s reservations regarding the transfer, the 2nd Respondent invited him to a meeting on 30th November, 2022 to address the concerns and provide support to facilitate the transfer to Kitengela. 8. The Respondents aver that the Claimant was granted a 30 day period to comply with the transfer directive but failed to do so despite repeated attempts to accommodate him. That due to urgent need to address the operational delays caused by the Claimant’s refusal to transfer, the 2nd Respondent was left with no choice but to summarily dismiss the Claimant in accordance with section 44 of the Employment Act on grounds of gross misconduct including insubordination and failure to obey proper and lawful command issued by the 2nd Respondent as his employer. 9. The Respondents aver that the Claimant was paid his full terminal dues subject to relevant statutory deductions. 10. It is the averment of the Respondents that at all times their actions were in accordance with the requirements of the Employment Act. They deny that the Claimant is entitled to any of the relief sought and pray that the claim be dismissed with costs. **Evidence** 1. At the hearing of the suit the Claimant testified on his behalf as CW1 while the Respondent called Dennis Odhiambo Otieno, the Executive Human Resource Manager of the Respondents. 2. The Claimant testified that he was employed by Western Steel Mills which was taken over by Abyssinia. He stated his contract provided that he would work in Eldoret but could be assigned other duties in Eldoret. That the letter did not state he could work in any other town. 3. The Claimant testified that when he raised concerns about transfer he was laid off. 4. He testified that when the employees were moved from Western Steel Mills they were issued with changeover letters. He stated that if the company wished to change any terms of the contract they were to do so in writing. He stated hi is a heman Resource professional and knew the procedure for termination. That the Respondents did not comply with the procedure. 5. Under cross examination the Claimant stated he had sued the two Respondents. That he was employed by the 1st Respondent in 2017 as Human Resource Manager. He testified that he was notified when the 2nd Respondent, Abyssinia was taking over the 1st Respondent, Western Steel Mills. He further stated that he was aware that after the take-over the 2nd Respondent became his employer and solely responsible for his employment. He testified that he did not object to the change. He stated that he signed the new contract dated 1st July 2021 which contract was substantially the same as the earlier ones signed between him and the 1st Respondent. 6. The Claimant testified that on 22nd October, 2023 he was informed that his services were required at Kitengela and he was to be transferred from the Eldoret office to Kitengela. He stated he was not given 30 days’ notice before the transfer as alleged by the Respondents. He further testified that he was not invited to a meeting to discuss the transfer. He stated that according to the letter of transfer he was supposed to start his duties in Kitengela on 17th January, 2023. He testified that he notified the Respondent that he would not go to Kitengela and on 9th February, 2023 he received the summary dismissal letter. 7. The Claimant testified that he signed the clearance form on 11th February, 2023. He stated that the last clause in the clearance form states that he would not make any future claims and indemnified the company from any future claims. 8. Under re-examination the Claimant stated that he was invited for a meeting in Nairobi on 30th November, 2022 at 9.00 am. That the letter did not state the agenda of the meeting. He testified that he was not informed the meeting was going to discuss his reassignment. That he was not informed it was a disciplinary hearing. 9. The Claimant testified that the meeting was moved from 9 am to 11 am then to 12 pm. He stated that when he was informed it was a disciplinary hearing he refused to participate because he had not been notified about a disciplinary hearing. He testified that the Respondents took minutes for a meeting that he was not part of. That after that date he went back to his work station and continued working until he received the letter of summary dismissal. 10. The Claimant testified that there was no formal invitation for a disciplinary hearing. That he was never given an opportunity to be heard. 11. For the Respondent Mr. Dennis Odhiambo Otieno adopted his witness statement and adopted the documents filed on behalf of the Respondents. He testified that the 30 days’ notice referred to in paragraph 6 of his witness statement was not attached to the documents filed for the Respondents. 12. RW1 stated that the Claimant’s letter referred to the geographic location of employment to be Eldoret. He testified that there was no evidence that the Respondents initiated a process to transfer the Claimant and that no document had been produced by the Respondents to that effect. 13. RW1 testified that the words reassignment and transfer did not appear in the contract of the Claimant. He further stated that the Respondents did not attach any communication inviting the Claimant for a meeting on 30th November, 2022. That the first letter produced by the Respondents regarding the Claimant’s transfer is dated 16th December, 2022. 14. RW1 stated that the allegations in his witness statement that the Claimant failed to respond to emails and telephone calls is not supported by any evidence. Further, that he had not attached the communication referred to in paragraph 14 of his witness statement which referred to an email dated 22nd December 2022 through which the Respondents alleged they contacted the Claimant about the transfer. He stated that there were no minutes of a disciplinary hearing. **Analysis and Determination** 1. I have considered the pleadings, the evidence adduced in court and submissions filed and exchanged by the parties. The issues that arise for determination by the court are the following: 1. Whether the summary dismissal of the Claimant was lawful both substantively and procedurally 2. Whether the Claimant is entitled to the remedies sought in the Memorandum of Claim *Whether the summary dismissal of the Claimant was lawful both substantively and procedurally* 1. The Claimant’s letter of appointment reads as follows: *Date: 7/11/2027* *Jackson Bulimo Ominde* *ID NO:22684812* ***CONTRACT OF EMPLOYMENT*** *Dear Jackson,* *Further to our recent discussions, we are pleased to offer you the position of a Human Resource Manager in Western Steel Mills LTD – Eldoret.* *You will be reporting directly to the Plant General Manager, Plant Production Managers & Group Human Resource Manager Head Office.* *Your appointment will be subject to satisfactory completion of a three months probationary period.* *Your job group is 5 in the Prime Steel/Abyssiania Steel Group Grading Structure and your salary for the duration of your contract is 90,000 Net per month. Your contract is for a Two year period effective 10/11/2017 and expires on 9/11/2019. Thereafter, subject to your performance, it may be renewed by mutual consent. Your other terms and conditions of employment are as set out in the attached document.* *Kindly acknowledge receipt of this letter and the attached Terms and Conditions of Employment and confirm your acceptance by signing a copy of both documents where indicated and by returning them to me.* *Yours sincerely,* *Signed* *Peter Kaguamba* *Group Human Resource Manager* *I hereby acknowledge receipt of the letter of which this is an exact copy audits attachment and confirm my acceptance of the terms and conditions contained therein.* *Signed dated 10/11/17* 1. The Claimant further signed a contract dated 10th November, 2019 in which it is provided at paragraph 1 under terms and Conditions as follows: ***EMPLOYMENT CONTRACT*** *Further to your successful assessment with Western Steel Mills Limited (Hereinafter referred to as “the Company) we hereby issue this Employment Renewal Contract to confirm your employment with this company effective 10th November, 2019 on below terms of conditions:* ***1. Position*** *You will be employed in the position of* ***Human Resource Manager*** *based at our plant in Eldoret. However, you may be required to work in any other capacity that the company may require you to work from time to time.* 1. The parties are in agreement that the Claimant was originally employed by the 1st Respondent and which was later taken over by the 2nd Respondent. The original contract of the Claimant was issued by the 1st Respondent while the contract dated 10th November, 2019 is by Abyssinia Group of Companies, the 2nd Respondent. 2. The Respondent insists that the Claimant disobeyed lawful instructions to go on transfer to Kitengela. The Claimant on the other hand retorts that his contract did not provide for his transfer to any station outside Eldoret. He states that he asked for six months to prepare for relocation. Fair termination of employment contract involved compliance with fair procedure as provided in section 41 of the Employment Act and proof of valid reason as provided in section 43 of the Act. 3. The Respondent has submitted that it complied with both fair procedure and valid reason. The Claimant’s position is that there was neither. 4. In the instant case the Respondent insists it called the Claimant for a disciplinary hearing on 30th November, 2022. The Respondent however was unable to produce such letter. The Claimant on his part states that he was called for a meeting to be held in Nairobi on 30th November, 2022 at 9 am. That the meeting was moved to 11 am then to 12 pm. that the meeting had no agenda, and he had been made to believe that it was to discuss his relocation. That when he realized that it was a disciplinary hearing he refused to participate as he had not been notified of the same. 5. No notice of the meeting was produced by the Respondent. Further, no minutes were produced by the Respondent. The only document produced by the Respondent is a letter dated 16th December, 2022 which states as follows: *JACKSON BULIMO OMINDE* *HUMAN RESOURCE MANAGER* *ABYSSINIA GROUP OF INDUSTRIES* *ELDORET* *Dear Jackson.* ***RE: FEEDBACK ON ISSUES RAISED IN THE MEETING HELD ON 30TH NOVEMBER 2022*** *We refer to the above subject, the meeting held on 30th November 2022 and the minutes deduced thereto. (You have to date declined to sign the said minutes).* *In the aforementioned meeting, you stated among other issues, that you would only consider the transfer from Eldoret to Kitengela after six (6) months from the date of the meeting. Whereas management has tried to be as accommodative as possible to you this far, the company is in continuous operation and requires prompt action from all stakeholders.* *We look forward to a smooth transition.* *Signed* *Yours Faithfully* *FOR:ABYSSINIA GROUP OF INDUSTRIES* *AUTHORIZED SIGNATORY* 1. From the letter it is evident that the meeting of 30th November, 2022 was to discuss the relocation of the Claimant from Eldoret to Nairobi and not a disciplinary hearing. It is further evident that after the parties failed to agree the Respondent issued an ultimatum to the Claimant to move to Kitengela by 17th January, 2023, a period of one month. It is the failure of the Claimant to comply with this letter that the Respondents regarded as and failure to obey a lawful command of the employer which is insubordination and therefore gross misconduct, justifying summary dismissal. 2. The Claimant was thereafter, by letter dated 9th February, 2023, summarily dismissed from employment. The letter of summary dismissal is reproduced below: *JACKSON BULIMO OMINDE* *HUMAN RESOURCE MANAGER* *Dear Jackson,* ***RE: SUMMARY DISMISSAL ON THE GROUNDS OF REFUSAL TO OBEY A LAW AND PROPER COMMAND WITHIN THE SCOPE OF YOUR DUTY*** *We refer to the above subject.* *On 22nd October 2022,management initiated the process of transfer from your role as the Human Resource Manager-Eldoret plant to the Human Resource Manager-Kitengela by issuing a 30 days’ notice for you to effect the same. Thereafter, acknowledging your reservations on the transfer conveyed through an extensive conversation on email, we invited you for a meeting on 30th November 2022,with the intention of resolving the stalemate amicably and offering support in whatever areas you would require to successfully effect the transfer. In the said meeting you maintained that your contract did not provide for transfer therefore you were not inclined to effect the same. You however stated that you may consider the transfer after six (6) months.* *Minutes of the aforementioned meeting were extracted and you thereafter protested that the same did not reflect the discussion of the meeting and in fact highlighted specific points. We made revisions to accommodate your concerns, but you still declined to sign the minutes to date.* *Following the timeline that you issued(being 6 months), management was unable to accommodate this request due to the nature of the company’s operations and instead allowed you 30 days to effect the transfer We did not receive any response to this letter, even after various reminders both on email and over telephone calls.* *Noting that time was of the essence and some of company’s operations were stalling in regard to your pending transfer, we wrote an email to you on 22nd December 2022 issuing a reporting date for 17th January 2023. This email evoked a response from you, which response addressed many issues including those not in discussion. The upshot of your response was that you would not effect the transfer from Eldoret to Kitengela in spite of the direct order to do so.* *Section 44 (4) of the Employment Act sets out instances of gross misconduct including* *Section 44 (4) (e): If an employee fails or refuses to obey a lawful and proper command which is within the scope of the employee to obey issued by his employer or a person placed in authority over him by his employer.* *Your Contract of Employment states that “You may be required to work in any other capacity that the company may require you to work from time to time on need basis”. The company was therefore justified in asking you to transfer to Kitengela and work in the capacity of Human Resource Manager. Failing to obey this order amounts to gross misconduct. As such, having given you a fair chance to present your case and having accommodated you this far, the company is constrained to summarily dismiss you in accordance with Section 44 (4) (e) of the Employment Act.* *Today shall therefore be your last day of working for the company. You are however entitled to payment in lieu of any pending leave days. Kindly make all the necessary clearances.* *We thank you for your service to Abyssinia Group of Industries wish you well in your future endeavours.* *Yours Faithfully;* *FOR:ABYSSINIA GROUP OF INDUSTRIES* *AUTHORIZED SIGNATORY* 1. Section 44(4) of the Employment Act provides: *(4) Any of the following matters may amount to gross misconduct so as to justify the summary dismissal of an employee for lawful cause, but the enumeration of such matters or the decision of an employer to dismiss an employee summarily under subsection (3) shall not preclude an employer or an employee from respectively alleging or disputing whether the facts giving rise to the same, or whether any other matters not mentioned in this section, constitute justifiable or lawful grounds for the dismissal if— (a) …* *(b) …* *(c) …* *(d) …* *(e) an employee knowingly fails, or refuses, to obey a lawful and proper command which it was within the scope of his duty to obey, issued by his employer or a person placed in authority over him by his employer;* *(f) …* *(g) ...* 1. The issue in contention is thus, whether the Claimant was guilty of insubordination as alleged by the Respondent. 2. From the Claimant’s contract, it is clear that his letter specifically provided that his employment station was Eldoret plant. There was no mention of transfer or relocation. The words “… *you may be required to work in any other capacity that the company may require you to work from time to time”* do not refer to relocation but to assignment of other duties on temporary basis besides or in addition to the Claimant’s core role as Human Resource Manager. 3. Section 10(1) of the Act provides that *“(1) A written contract of service specified in section 9 shall state particulars of employment which may, subject to subsection (3), be given in instalments and shall be given not later than two months after the beginning of the employment.”* 1. Section 10(3) provides: *(3) The statement required under this section shall also contain particulars, as at a specified date not more than seven days before the statement, or the instalment containing them, is given of—* *(d) either the place of work or, where the employee is required or permitted to work at various places, an indication of that place of work and of the address of the employer;* 1. Section 13(1) of the Act provides: *13. Statement of changes* *(1) If, after the material date there is a change in any of the particulars required under sections 10 and 12, the employer shall give to the employee a written statement containing particulars of the change.* 1. In the instant case the Respondent did not issue to the Claimant any letter specifying the changes to his contract. The Claimant was thus within his rights to point out to the Respondent that his terms of contract did not provide for transfer to any location other than Eldoret. There was therefore necessity for the Respondents to first issue a letter changing the Claimant’s terms of contract in so far as location of employment was concerned, before requiring him to relocate. 2. Based on the foregoing, the directive o the Claimant to relocate to Kitengela was a material departure from his contract and without amendment of the contract, did not constitute a valid reason for summary dismissal. I thus find that there was no valid reason for the summary dismissal of the Claimant. 3. **Turning to the procedure for dismissal, section 41 of the Act provides:** *41. Notification and hearing before termination on grounds of misconduct* *(1) Subject to section 42(1), an employer shall, before terminating the employment of an employee, on the grounds of misconduct, poor performance or physical incapacity explain to the employee, in a language the employee understands, the reason for which the employer is considering termination and the employee shall be entitled to have another employee or a shop floor union representative of his choice present during this explanation.* *(2) Notwithstanding any other provision of this Part, an employer shall, before terminating the employment of an employee or summarily dismissing an employee under section 44(3) or (4) hear and consider any representations which the employee may on the grounds of misconduct or poor performance, and the person, if any, chosen by the employee within subsection (1), make.* 1. It is mandatory that an employee be notified and then heard before being dismissed on grounds of gross misconduct. The wording used is “*an employer shall, before terminating the employment of an employee, on the grounds of misconduct* …” 2. Even assuming that the Claimant refused to obey a lawful command of the employer to move to Kitengela as communicated to him through the letter dated 16th December, 2022, the Respondent ought to have taken him through a disciplinary hearing in the manner set out in section 41 of the Act. 3. The wording of section 41 of the Act are couched in mandatory terms. Once the Respondent came to the conclusion that the Claimant had refused to obey the terms of the letter dated 16th December, 2022, it ought to have called him for a disciplinary hearing, giving him notice of the charges against him, the date and venue of the disciplinary hearing and notifying him of his right to be accompanied to the hearing by a colleague of his choice. 4. The Claimant having not been subjected to a hearing at all, the summary dismissal did not comply with the mandatory provisions of section 41 of the Act and was therefore unfair in terms of section 45 (1) and (2) of the Act which provide: *45. Unfair termination* *(1) No employer shall terminate the employment of an employee unfairly.* *(2) A termination of employment by an employer is unfair if the employer fails to prove—* *(a) that the reason for the termination is valid;* *(b) that the reason for the termination is a fair reason—* *(i) related to the employee’s conduct, capacity or compatibility; or* *(ii) based on the operational requirements of the employer; and* *(c) that the employment was terminated in accordance with fair procedure.* 1. From the foregoing I find that the summary dismissal of the Claimant was both substantively and procedurally unfair. ***Whether the Claimant is entitled to the prayers sought in the Claim*** 1. The Claimant prayed for a declaration that his dismissal from employment was unlawful, unprocedural and unfair and that in the circumstances he is entitled to compensation. 2. Having found as above, I declare the summary dismissal of the Claimant unlawful, unprocedural and unfair. 3. The Claimant prayed for one months’ salary in lieu of notice. Having found the summary dismissal unfair the Claimant is entitled to pay in lieu of notice in terms of section 49(1) as read with section 35 and 36 of the Act. I award him Kshs. 120,320 being one months salary in lieu of notice. 4. The Claimant further prayed for compensation for unfair termination. Taking into account the Claimant’s length of service, the circumstances under which he was employed, the conduct of the Respondents and the applicable factors under section 49(4) of the Act, I award the Claimant 4 months salary as compensation for unfair termination in the sum of Kshs. 481,280. 5. The Respondents shall issue a certificate of service to the Claimant if the same has not yet been issued 6. The Respondents shall bear the Claimant’s costs of this suit 7. Interest shall accrue at court rates from date of judgment **DATED, DELIVERED AND SIGNED** **THIS 14TH DAY OF MAY, 2026.** **M. ONYANGO** **JUDGE**