https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/781

**REPUBLIC OF KENYA** **IN THE CHIEF MAGISTRATES COURT AT MOMBASA** **MAGISTRATES COURT CIVIL** **MCELRC CAUSE NO. E591 OF 2025** **GIBRAN MWAMBOGHO RUMA..............................................................CLAIMANT** **VERSUS** **PROTO ENERGY LIMITED....................................................................RESPONDENT** **JUDGEMENT** **Introduction** 1. The Claimant, Gibran Mwambogho Ruma, instituted these proceedings against the Respondent, Proto Energy Limited, alleging that his employment was unlawfully and unfairly terminated and seeking various terminal and employment benefits. 2. The Claimant’s case is founded on his Memorandum of Claim dated 29th August 2025, his witness statement and supporting documents. He contends that he was employed by the Respondent on 7th September 2021 and worked until 25th October 2024 when he says he was verbally informed that there was no more work for him and was asked to go home. He maintains that no valid reason was given for his termination and that he was not afforded a fair disciplinary process. 3. The Respondent denies the claim. Its case is that the Claimant was summarily dismissed for gross misconduct after reporting to work while under the influence of alcohol in a safety-sensitive LPG filling plant. It contends that the Claimant was subjected to a disciplinary process, afforded an opportunity to respond to the allegations and thereafter lawfully summarily dismissed. 4. The parties agreed that the matter be determined on the basis of the pleadings, documents and written submissions filed on record. The Claimant’s submissions challenge both the substantive justification for the dismissal and the procedure adopted by the Respondent. The Respondent maintains that both substantive and procedural fairness were satisfied. 5. I have carefully considered the pleadings, witness statements, documentary evidence and the elaborate written submissions and authorities filed by both parties. **The Claimant’s case** 1. The Claimant states that he was employed by the Respondent on 7th September 2021. Although the Memorandum of Claim describes him as a loader, his witness statement and the Respondent’s employment documents identify his position as Truck Assistant. 2. The employment relationship is not disputed. Indeed, the Respondent’s Certificate of Service records the Claimant’s employment as having commenced on 7th September 2021, his place of employment as Mombasa, his job title as Truck Assistant and his date of separation as 25th October 2024. The Claimant states that he earned a monthly salary of Kshs.25,000. He further pleaded that shortly before termination, he had executed a two-year contract with the Respondent which was due to expire in September 2026. 3. That assertion is now confirmed by the Respondent’s own documents. The Respondent produced a contract renewal dated 3rd September 2024 extending the employment relationship for a further two years, effective from 7th September 2024 to 6th September 2026. 4. According to the Claimant, when he reported to work on 25th October 2024, he was informed by Grace Musyoki that there was no more work for him, was asked to go home and was told that he would be called back. He says that he was never recalled, no proper explanation was offered and no fair hearing preceded his separation. 5. The Claimant therefore contends that the termination was unlawful and seeks: 6. One month’s salary in lieu of notice — Kshs.25,000; 7. House allowance at 15% of Kshs.25,000 for 38 months — Kshs.142,500; 8. Annual leave — Kshs.52,500; 9. Prorated leave — Kshs.2,916.67; 10. Compensation equivalent to twelve months’ salary — Kshs.300,000; 11. Certificate of Service; 12. Costs and interest. 13. The total monetary claim pleaded is Kshs.522,916.67. **The Respondent’s case** 1. The Respondent admits the employment relationship but denies that the Claimant was verbally dismissed without reason. It states that on 17th October 2024 at approximately 6.00 p.m., while the Claimant was working the afternoon shift at the Mombasa Filling Plant, the plant-in-charge observed that operations had slowed and that the Claimant was not lifting LPG cylinders in the prescribed manner. 2. According to the Respondent, the Claimant was not in his usual demeanour, smelt strongly of alcohol and was escorted to the security room where an alcohol-detection test was administered. The Respondent says the alcohol-testing gadget returned a reading of 150. It further relies on a statement given by the Claimant on 17th October 2024 and a statement by Philip Ogwe dated 18th October 2024. 3. A Notice to Show Cause was subsequently issued on 22nd October 2024, an invitation to a disciplinary hearing was issued on 23rd October 2024, and a disciplinary hearing was conducted on 25th October 2024. 4. The Respondent maintains that the Claimant admitted that he had consumed alcohol the previous night, had continued drinking until about 6.00 a.m., slept until approximately 1.00 p.m., woke up with a hangover and thereafter reported for the afternoon shift. 5. The Respondent further relies on the disciplinary minutes in which the Claimant is recorded as confirming that he was the person appearing in a video and that the alcohol-detection gadget indicated a reading of 150. 6. It was the Respondent’s position that intoxication in an LPG filling plant created a serious safety risk to the Claimant himself, his colleagues, members of the public and company property. 7. The disciplinary committee concluded that the Claimant’s conduct constituted gross misconduct and recommended summary dismissal. 8. A Summary Dismissal Letter dated 28th October 2024 was thereafter generated. The Respondent states that the Claimant cleared with the company on that date. The Respondent denies that any additional house allowance is payable because the Claimant’s gross salary of Kshs.25,000 expressly included house allowance. It similarly contests the blanket claim for three years’ annual leave and maintains that only the actual accrued leave balance recorded at separation was payable. **Issues for determination** 1. From the pleadings, evidence and submissions, the following issues arise for determination: 2. Whether the Respondent had a valid and fair reason for terminating the Claimant’s employment; 3. Whether a fair procedure was followed; 4. Whether the Claimant is entitled to the remedies sought; and 5. Who should bear the costs of the proceedings. Whether there was a valid and fair reason for termination 1. Sections 43 and 45 of the Employment Act require an employer to demonstrate the reason for termination and establish that such reason was valid and fair. Section 43(2) focuses on the matters which the employer, at the time of termination, genuinely believed to exist and which caused the employer to terminate the employee’s services. 2. The standard applicable to employment disciplinary proceedings is not proof beyond reasonable doubt. The Court considers whether, on a balance of probabilities, the employer had a genuine and reasonable basis for the decision taken. The Respondent’s case is that the Claimant reported for duty while under the influence of alcohol. The allegation is especially serious because the Claimant was engaged as a Truck Assistant in a plant handling LPG cylinders. 3. There is no dispute that the Claimant consumed alcohol before reporting for the material shift. According to the disciplinary record, he acknowledged having consumed alcohol during the preceding night and morning and waking up with a hangover. 4. Further, the disciplinary minutes record him as confirming the alcohol-detection reading of 150. The Respondent relies on that admission together with the observations of the plant-in-charge, the Claimant’s written statement, Philip Ogwe’s statement and the disciplinary action request. 5. The Claimant has strongly attacked the absence of the actual breathalyser printout or a formal alcohol-test report. 6. I agree that, in an ideal disciplinary record, the primary test result ought to have been produced, particularly where the principal accusation rests on a numerical reading from an alcohol-testing device. The absence of the test printout is therefore a weakness in the Respondent’s evidential record. It is, however, not the only evidence relied upon. 7. The Claimant’s own account establishes recent alcohol consumption. The disciplinary minutes further record his confirmation of the reading and his acknowledgment that working under the influence of alcohol in such an environment endangered himself and others. His alternative explanation that LPG fumes may have affected the test result was not supported by medical, scientific or technical evidence. 8. In Mwashimba v Aircraft Leasing Services Limited [2026] KEELRC 1655 (KLR), relied upon by the Respondent, the Court upheld disciplinary action against a pilot who failed alcohol tests before duty and emphasized the overriding importance of safety in a safety-sensitive workplace. 9. Likewise, in Nzioki v Safaricom PLC [2023] KEELRC 722 (KLR), the Court held that alcohol consumption which compromises an employee’s ability to work or exposes the employee and third parties to risk may constitute a valid reason for termination. 10. Section 44(4)(b) of the Employment Act recognizes intoxication during working hours which renders an employee unwilling or incapable of properly performing his work as conduct capable of justifying summary dismissal. The Claimant’s job required him to handle LPG cylinders. This was plainly a safety-sensitive function. 11. An employer dealing with LPG is entitled, and indeed obliged, to maintain strict workplace safety standards. It need not wait for an explosion, physical injury or loss of life before acting against a safety risk. 12. Taking the evidence cumulatively, I am satisfied, on a balance of probabilities, that the Respondent had a genuine and reasonable basis for believing that the Claimant had reported to duty in a state in which recent alcohol consumption had compromised, or was reasonably capable of compromising, his safe performance of duty. 13. I therefore find that the Respondent has established a valid and fair substantive reason for taking disciplinary action against the Claimant. The termination was thus substantively justified. Whether the procedure was fair 1. Substantive justification does not, however, conclude the matter. Section 41 of the Employment Act imposes a separate and mandatory procedural obligation on an employer contemplating termination on account of misconduct. 2. The employee must be informed of the accusation in a manner he understands and be afforded a genuine opportunity to respond before the decision to terminate is taken. 3. The Claimant’s principal complaint concerns the extremely compressed disciplinary timetable. The chronology is important. The incident occurred on 17th October 2024. The Claimant gave a statement on the same date. Philip Ogwe’s statement was recorded on 18th October 2024. The Notice to Show Cause is dated 22nd October 2024. Critically, the Notice to Show Cause required the Claimant to submit his response by 5.00 p.m. on 22nd October 2024, that is, on the very date the notice was issued. The Respondent itself accepts this fact. The disciplinary invitation is dated 23rd October 2024 and the hearing took place on 25th October 2024. 4. The Claimant further contends that the acknowledgement on the hearing invitation indicates that it was served on him on 25th October 2024 itself, being the date of the disciplinary hearing. This chronology causes the Court considerable concern. 5. A disciplinary process is not rendered fair merely because documents bearing the titles “Notice to Show Cause”, “Invitation to Disciplinary Hearing” and “Minutes” exist. 6. The substance of fairness is whether the employee was afforded a real and reasonable opportunity to understand the accusations, consider the evidence, seek assistance where necessary and meaningfully prepare his response. 7. The Respondent argues that the Claimant had known about the allegation from 17th October 2024 and had already provided a statement. That argument has some force, but it does not cure the defect. 8. A preliminary statement made immediately following an incident is not necessarily the equivalent of a considered response to a formal disciplinary charge after the employer has determined precisely what misconduct it proposes to pursue. 9. The Notice to Show Cause is the formal point at which the employee is expected to appreciate the disciplinary case he is required to answer and the possible consequences. Requiring the employee to respond by 5.00 p.m. on the same day that the formal charge is issued does not, in my view, amount to reasonable time. 10. In the authority relied upon by the Claimant, Bakery Confectionery Food Manufacturing & Allied Workers Union (K) v Kenafric Industries Limited, the Court considered a 24-hour response period and held that, in the circumstances, it was insufficient to afford the employee a reasonable opportunity to prepare a defence. The Court found the dismissal procedurally unfair notwithstanding the existence of a substantive reason for termination. 11. The Claimant here had considerably less than the 24 hours criticized in that case if the Notice to Show Cause was indeed issued and was to be responded to on 22nd October 2024 itself. There is a further concern regarding the disciplinary invitation. 12. Although dated 23rd October 2024, the Claimant contends that the acknowledgment appearing on the document indicates service on 25th October 2024, the very day of the hearing. 13. The Respondent has not satisfactorily demonstrated, by independent evidence of service, that the Claimant received the invitation sufficiently in advance of the hearing. 14. The Court accepts that the Claimant actually attended the hearing. Attendance, however, is not synonymous with adequate preparation. 15. The minutes show that he was informed that he could have a representative and that he elected to proceed without one. 16. Nevertheless, the right to representation and the right to adequate preparation are distinct procedural protections. 17. The Claimant also complains that he was not furnished with the evidentiary material relied upon against him, including the alcohol-test record and the alleged video. 18. I would not go so far as to hold that every internal employment disciplinary hearing requires full discovery of documents to the standard applicable in civil litigation. 19. However, where an employer relies on a specific scientific or mechanical test as central evidence of intoxication, procedural fairness is enhanced by providing the employee with the test result or sufficiently identifying the evidence to enable a meaningful response. 20. The Respondent did not produce the primary alcohol-test result in these proceedings. It therefore follows that the Court cannot confidently conclude that such document was furnished to the Claimant before his disciplinary hearing. The Claimant further challenged the absence of a standalone investigation report. 21. On this point, I agree with the Respondent that neither section 41 nor section 43 of the Employment Act invariably requires a separate document bearing the title “Investigation Report”. 22. As held in Nzioki v Safaricom PLC, questioning an employee, taking statements and gathering evidence prior to the disciplinary hearing can collectively constitute an investigation. I therefore do not find procedural unfairness merely because the Respondent did not produce a standalone investigation report. 23. There is also the issue of the Respondent’s disciplinary SOP. The copy produced in the Respondent’s bundle bears a revision/effective date of 20th March 2025, whereas the impugned disciplinary proceedings occurred in October 2024. 24. The Respondent cannot, without more, rely conclusively upon a subsequent revision of its internal policy as proof of the precise contractual procedure applicable five months earlier. 25. This does not invalidate the disciplinary action because the statutory framework under section 41 applied independently. It does, however, weaken the Respondent’s attempt to rely on that particular copy of the SOP as conclusive proof of procedural compliance in October 2024. 26. Another discrepancy concerns the date of termination. The Certificate of Service issued by the Respondent records the Claimant’s date of separation as 25th October 2024. The disciplinary hearing itself was conducted on 25th October 2024. The written Summary Dismissal Letter is, however, dated 28th October 2024. 27. The Respondent says the committee deliberated after the hearing and communicated its decision through HR. That is consistent with a written decision following the hearing. 28. It is therefore difficult to reconcile the assertion that the employment relationship ended on 25th October 2024 with the position that the dismissal decision was made and formally communicated on 28th October 2024. 29. The discrepancy is not, standing alone, sufficient to negate the substantive reason for dismissal. It nevertheless reinforces the Court’s concern regarding the precision and fairness of the termination process. 30. In Rebecca Ann Maina & Others v Jomo Kenyatta University of Agriculture and Technology, the Court emphasized that internal disciplinary proceedings, though not trials, remain subject to fundamental fairness, including adequate notice of the allegations and a genuine opportunity to prepare and answer them. 31. Likewise, Mary Chemweno Kiptui v Kenya Pipeline Company Limited affirms that the protections under section 41 remain applicable even where the employer believes the conduct warrants summary dismissal. I therefore find that although the Claimant was ultimately heard, the process preceding the hearing was unduly compressed. 32. A same-day deadline for responding to the Notice to Show Cause, coupled with uncertainty as to when the invitation to the disciplinary hearing was actually received, deprived the Claimant of the reasonable preparation time contemplated by procedural fairness. Consequently, I find that the Respondent did not fully satisfy the requirements of procedural fairness under section 41 of the Employment Act. The dismissal was therefore procedurally unfair, notwithstanding the existence of a valid substantive reason. **Remedies** 1. Declaration- Having found that the Respondent had a valid substantive reason but failed to fully comply with procedural fairness, the Claimant is entitled to a declaration limited to that finding. I therefore declare that the termination was procedurally unfair but substantively justified. 2. Notice pay- The Claimant seeks one month’s salary in lieu of notice amounting to Kshs.25,000. The Respondent argues that because the conduct fell within section 44(4)(b), no notice was payable. The summary dismissal was substantively justified. However, the Respondent did not lawfully perfect that dismissal because the procedure preceding it did not satisfy section 41. A finding that the disciplinary process was procedurally unfair brings the termination within the statutory framework governing unfair termination. In the circumstances, I find that the Claimant is entitled to one month’s salary in lieu of notice, namely: Kshs.25,000. 3. House allowance- The Claimant claims Kshs.142,500 as house allowance calculated at 15% of Kshs.25,000 for 38 months. This claim is contradicted by the written employment contract. The contract expressly stated that the Claimant’s gross monthly salary was Kshs.25,000 inclusive of allowances, and broke the amount down as follows: Basic salary — Kshs.21,739.13. House allowance — Kshs.3,260.86. Gross monthly salary — Kshs.25,000. The Claimant signed the employment contract. The Respondent’s final-pay computation similarly identifies basic salary and house allowance separately within the Kshs.25,000 gross salary. It follows that the Claimant was already receiving house allowance as a component of his contractual gross salary. To award a further 15% would amount to double recovery. The claim for Kshs.142,500 house allowance is dismissed. 4. Annual leave and prorated leave- The Claimant seeks Kshs.52,500 for three years’ annual leave and Kshs.2,916.67 as prorated leave. The Respondent denies that the Claimant never took leave and relies upon the final dues computation. The Respondent’s own written submissions state that the Claimant had an accrued balance of 4.06 leave days, valued at Kshs.4,397.13. There is some inconsistency in the Respondent’s documents because an earlier reference appears to describe the accrued balance as 4.66 days. The monetary computation, however, consistently identifies leave pay of Kshs.4,397.13. The Claimant’s blanket claim assumes that he never proceeded on leave throughout the entire period of employment. The evidence before Court does not sufficiently establish that proposition. Conversely, the Respondent’s own record admits that some leave remained outstanding at separation. The Respondent contends that all terminal dues were paid, yet no clear bank or payment evidence demonstrating actual receipt by the Claimant of the admitted leave amount has been identified. The terminal-dues computation also contains an unexplained “Absent Amount” deduction and results in a very small net payment. That document, standing alone, does not satisfactorily prove actual settlement of the admitted leave entitlement. I therefore award the Claimant the admitted accrued leave amount of: Kshs.4,397.13. The balance of the claims for annual and prorated leave is dismissed. 5. Compensation for unfair termination- The Claimant seeks the maximum statutory compensation equivalent to twelve months’ salary, being Kshs.300,000. Compensation under section 49 of the Employment Act is discretionary rather than automatic. Relevant factors include the length of service, the circumstances leading to termination, the employee’s conduct, the extent to which the employee contributed to the dismissal and the nature of the procedural defect. The Claimant served the Respondent for approximately three years. His employment had only recently been renewed for a further two years. However, the Court has found that the substantive reason for the disciplinary action was valid. The Claimant materially contributed to his termination by consuming alcohol before reporting for a safety-sensitive shift and reporting for work notwithstanding his own account that he woke with a hangover. This was not an innocent or purely technical workplace transgression. The risk associated with handling LPG cylinders while potentially impaired was substantial. On the other hand, procedural fairness is a statutory right and the Respondent should have afforded the Claimant reasonable time to respond to the formal charge and adequately prepare for the disciplinary hearing. I have considered the Claimant’s authority of Bakery Confectionery Food Manufacturing & Allied Workers Union (K) v Kenafric Industries Limited, where the Court found substantive justification but procedural unfairness and awarded three months’ salary, having regard to the employee’s contribution to the dismissal. Each case must, however, turn on its particular circumstances. 6. In this matter, considering: the Claimant’s approximately three years of service; the fact that there is no evidence of previous disciplinary infractions placed before the Court; the existence of a substantive reason for dismissal; the Claimant’s substantial contribution to the circumstances leading to dismissal; the serious safety implications of the misconduct; the Respondent’s failure to give reasonable formal response time; and the fact that the Claimant was nevertheless ultimately afforded and participated in a disciplinary hearing, 7. I consider compensation equivalent to three months’ gross salary fair and proportionate. At a monthly gross salary of Kshs.25,000, the compensation is: Kshs.25,000 × 3 = Kshs.75,000. 1. Certificate of Service- The Claimant prayed for a Certificate of Service. The evidence already contains a Certificate of Service issued by Proto Energy Limited confirming his employment from 7th September 2021 to 25th October 2024. That prayer has therefore already been satisfied and no further order is necessary. **Disposition** 1. In the result, judgment is entered for the Claimant against the Respondent as follows: **Item Award** One month’s salary in lieu of notice Kshs.25,000.00 Accrued leave Kshs.4,397.13 Three months’ compensation Kshs.75,000.00 House allowance Dismissed Balance of annual/pro rata leave claim ` Dismissed **TOTAL AWARD Kshs.104,397.13** 1. For avoidance of doubt, the Court makes the following final orders: 2. A declaration is hereby issued that the Respondent had a valid and fair substantive reason to take disciplinary action against the Claimant; 3. The termination of the Claimant’s employment is nevertheless declared procedurally unfair for failure to afford him reasonable time to respond to the formal Notice to Show Cause and adequately prepare for the disciplinary hearing; 4. The Respondent shall pay the Claimant Kshs.104,397.13 as particularized above; 5. The claim for additional house allowance of Kshs.142,500 is dismissed; 6. The claims for annual and prorated leave beyond the admitted accrued leave balance are dismissed; 7. The prayer for twelve months’ compensation is declined and substituted with three months’ gross salary; 8. The prayer for a Certificate of Service is marked as satisfied; 9. The awarded sum shall attract interest at court rates from the date of this Judgment until payment in full. 10. On costs, each party has succeeded in part. The Claimant has established procedural unfairness but the Respondent has succeeded on the substantive justification for dismissal and on a substantial portion of the monetary claims. In those circumstances, I direct that each party shall bear its own costs. It is so ordered. **DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOSFT TEAMS AT MOMBASA THIS 27TH AUGUST 2026.** **……………………………………………….** **EMILY M. MWAMUYE** **SENIOR RESIDENT MAGISTRATE**