Total Solutions Limited v Bett (Appeal E158 of 2024) [2026] KEELRC 2033 (KLR) (15 July 2026) (Judgment)

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI** **APPEAL NO. E158 OF 2024** *(Before D. K. N. Marete)* **TOTAL SOLUTIONS LIMITED…………………………………………… APPELLANT** **VERSUS** **MARGARET CHERONO BETT………………………………..…………RESPONDENT** **JUDGMENT** This matter was originated by way of a Memorandum of Appeal dated 27th May 2024. It is an appeal from a judgment delivered on the 26th day of April, 2024 in Milimani in CMEL Cause No. E1470 of 2022. The Memorandum of Appeal sets out the following as grounds: 1. *The Learned Magistrate erred in law and in fact in finding that the Appellant did not adopt a fair procedure as set out in section 41(1) of the Employment Act.* 2. *The Learned Magistrate erred in fact and law in delivering a judgment replete with factual errors and which is contrary to the evidence tendered by the parties.* 3. *The Learned Magistrate erred by finding that the termination of the Respondent's employment was unfair contrary to the weight of the evidence.* 4. *The Learned Magistrate erred in law and in fact in awarding the Respondent one (1) month salary in lieu of notice in spite of overwhelming evidence justifying summary dismissal.* 5. *The Learned Magistrate erred in law and in fact in awarding the Respondent compensation equivalent to seven (7) months gross salary which amount was unreasonably high and without justification.* 6. *The Learned Magistrate, in awarding damages, erred in law by failing to put into consideration the factors set out in section 49(4) of the Employment Act, 2007.* 7. *The Learned Magistrate erred in law and in fact in awarding the Respondent service pay equivalent to five (5) years worked against the weight of evidence and in contravention to the provisions set out in section 35(6)(d) of the Employment Act, 2007.* 8. *The Learned Magistrate erred in law and in fact in awarding the Respondent unpaid and untaken leave in spite of his own finding that the claim was unsubstantiated and without providing any explanation in justification of the award thereof.* 9. *The Learned Magistrate erred in law and in fact in ordering the Appellant to issue the Respondent with a Certificate of Service contrary to the evidence on record that such Certificate had already been issued.* 10. *The Learned Magistrate exhibited bias in the manner in which he captured and treated the parties' respective cases thereby leading to the conclusion that the judgment was not just and fair as required by law.* The Appellant prays for orders that: 1. *This appeal be allowed.* 2. *The trial court's judgment be set aside in its entirety.* 3. *Costs of this appeal be awarded to the Appellant.* The Appellant's case before the trial court was presented through the following documents, all of which form part of the Record of Appeal: a Memorandum of Claim dated 22nd August, 2022, a Verifying Affidavit of even date, a List of Witnesses, a List and Bundle of Documents, a Memorandum of Response dated 29th September, 2022 a Respondent's List of Witnesses, a Respondent's Witness Statement, a Witness Statement of Margaret Cherono Bett, a Respondent's List of Documents, a Reply to the Respondent's Memorandum of Response, a Pre-trial Questionnaire, a Statement of Issue, a Witness Statement of Lemmy Manja, Written Submissions filed by both parties, and a Record of Proceedings. The trial court delivered its judgment on the 26th day of April, 2024. The Appellant is Total Solutions Limited, a limited liability company registered in Kenya with its principal place of business in Nairobi. The Respondent, Margaret Cherono Bett, was employed by the Appellant from April 2016, initially as an instore salesperson at Nakumatt Mega. She was thereafter offered a position as Helpdesk Administrator at the head office and subsequently served as Help Desk Coordinator as evidenced by the updated contract of employment dated 25th July, 2017 which was backdated and effective as of 1st April, 2016. At the time of her termination, the Respondent was earning a gross monthly salary of Kshs. 48,000/=. The Appellant's case, as presented through its witnesses, Susan Munene (Human Resources Manager) and Lemmy Manja (the Line Manager) was that the Respondent's employment was terminated by way of summary dismissal on 29th September, 2021 following a fair and proper disciplinary process. The Appellant contended that the Respondent was issued with a show cause letter dated 14th September, 2021 which set out four specific allegations against her. These were lack of commitment on tasks issued by her immediate manager violation of the company leave application procedure violation of the company code of conduct on confidentiality and insubordination besides behaving in a manner insulting to individuals placed in authority by the employer. The Respondent was given until 16th September, 2021 to respond. The Appellant further contends that upon receipt of the Respondent's response, a disciplinary hearing was convened and held on 21st September, 2021 at which the Respondent was present. The Respondent was informed of her right to have a witness of her choice present at the hearing and elected to proceed without one. This fact was noted in the minutes of the disciplinary hearing. At the hearing, the Respondent was accorded ample time to answer to all the issues raised. When asked whether she had been accorded a fair hearing process, she replied in the affirmative. The minutes of the hearing were thereafter shared with her via email for her to confirm their accuracy and she confirmed them with only minor typographical corrections or indications. Following the disciplinary hearing, the Respondent was summarily dismissed with effect from 29th September, 2021 by a dismissal letter signed by the Managing Director, Manish Mehta. The dismissal letter cited her conduct as falling within sections 44(c), (d) and (e) of the Employment Act, 2007. She was afforded the opportunity to appeal and despite filing her appeal out of time, the Appellant allowed her to proceed. The appeal was heard on 19th October, 2021 by Chandni Adatia, Finance Manager, acting as appeal chairperson. The decision to summarily dismiss the Respondent was upheld in a letter dated 28th October, 2021. On quantum, the Appellant contends that the Respondent was not entitled to salary in lieu of notice as her termination was by way of summary dismissal under section 44 of the Employment Act, 2007. On service pay, the Appellant produced payslips confirming that it had duly deducted and remitted NSSF and NHIF contributions on the Respondent's behalf throughout the period of employment and contended that by virtue of section 35(6)(c) and (d) of the Act, the Respondent was not entitled to service pay. On unpaid leave, the Appellant produced evidence of a banker's cheque of Kshs. 17,000.00 dated 26th October, 2021 and a Discharge and Indemnity Voucher dated 2nd November, 2021 which the Respondent signed, acknowledging receipt of all her final dues including leave pay of 11.25 days. On the allegation of bias, the Appellant contended that the trial court misattributed sexual advances to the Line Manager Lemmy Manja when the evidence on record showed that it was the Business Development Manager, one, Peter Monari who was so accused. The Respondent's case was presented through her own witness statement dated 22nd August, 2022 and her bundle of documents. She filed written submissions in the trial court and also in this appeal. The Respondent testified that she joined the Appellant Company in April, 2016 and served diligently without any prior warnings or disciplinary action for over five years before the events leading to her dismissal. She had never been issued with any warning letter during her term of employment. She avers that the global COVID-19 pandemic placed increased demands on her as the workshop team was reduced in size, leaving her to handle two roles simultaneously - workshop manager and helpdesk coordinator - with little support from her line manager. As regards the specific allegations in the show cause letter, the Respondent denied that they amounted to gross misconduct justifying summary dismissal. On the Carrefour incident of 19th August, 2021 the Respondent testified that she could not send the required technician to site because her manager, one, Lemmy Manja, who was on leave, declined her request to borrow a technician from another team, even though she had only one person in the office. She attempted to manage the situation to the best of her ability, given the constraints. On the leave incident of 30th August, 2021 the Respondent testified that she had a toothache requiring urgent dental treatment, that she had sent Lemmy Manja a text message before leaving as he was in a meeting with the Managing Director and had informed the office administrator and colleagues as required by company policy. She denied being rude to her manager in the WhatsApp exchange that followed. The Respondent further raised the issue of sexual harassment at the disciplinary hearing, stating that some of the allegations against her were motivated by the rejection of sexual advances made to her by the Business Development Manager. She contended that this was brushed off by the Human Resource team without investigation. The Respondent challenges the fairness of the entire disciplinary process, contending that she was never informed of her right to have a representative of her choice present at the disciplinary hearing as required by section 41(1) of the Employment Act, 2007. She further contends that the appeal hearing was chaired by Chandni Adatia, the Finance Manager, who was one of the persons who had raised complaints against her, thereby rendering the appeal process fundamentally compromised. The Respondent denied receiving a Certificate of Service or having been paid all her terminal dues. She maintained that she was owed salary in lieu of notice, compensation for unfair termination, service pay for five years and payment in lieu of unpaid and untaken leave. The issues for determination therefore are: 1. Whether the termination of the Respondent's employment was procedurally and substantively fair. 2. Whether the Respondent is entitled to the reliefs awarded by the trial court. 3. Whether the trial court exhibited bias in the conduct of the proceedings. 4. Who bears the costs of this appeal. The 1st issue for determination is whether the termination was procedurally and substantively fair. Section 41(1) of the Employment Act, 2007 provides as follows: *"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."* Section 45(2) of the Act further provides that a termination is unfair if the employer fails to prove that the reason for the termination is valid, that the reason is fair, and that the employment was terminated in accordance with fair procedure. The Court of Appeal in **Postal Corporation of Kenya v K. Tanui [2019] eKLR** identified four elements that must be discernible for procedure to pass the muster test: an explanation of the grounds of termination in a language understood by the employee; the reason for which the employer is considering termination; the entitlement of the employee to the presence of another employee of his choice; and hearing and considering any representations made by the employee. The Appellant placed great emphasis on the fact that a disciplinary hearing was convened and that the Respondent attended it. It is not in dispute that a show cause letter was issued, that the Respondent responded, and that a hearing was held on 21st September, 2021. The critical question, however, is whether the requirements of section 41(1) were met in substance and not merely in form. In the authority of **John Jaoko Othino v Intrahealth International 2022 eKLR** the court identified the hallmarks of a fair hearing process which includes issuing the employee with a notice to show cause letter with the details of the accusations, inviting the employee to respond, inviting the employee to a disciplinary hearing, according the employee the opportunity to be accompanied, and considering the representations made before deciding. The Appellant's witness Susan Munene testified that the Respondent was informed of her right to have a witness of her choice present at the disciplinary hearing. The trial court, having had the benefit of hearing and assessing the witnesses, found otherwise - that no evidence was adduced to confirm the Respondent was so informed. The Appellant's own witnesses conceded before the trial court that there was no documentary evidence before court confirming this notification. The minutes of the disciplinary hearing, upon which the Appellant relies, record that the Respondent was informed she could bring a witness. The Respondent disputes this. On the evidence as a whole, this court is not persuaded that the trial court's finding on this point was plainly wrong. Of greater and decisive concern to this court is the constitution of the appeal panel. The appeal decision letter dated 28th October, 2021 was signed by Chandni Adatia, Finance Manager. Yet the show cause letter, which formed the basis of the disciplinary action, includes among the allegations complaints arising from interactions involving the Finance Manager's office - specifically, the allegation of insubordination towards Chandni on the matter of the repair of chairs. It is a fundamental principle of natural justice that no person shall be a judge in their own cause - *nemo judex in causa sua.* A hearing presided over by a person, or one of the persons identified as a complainant in the very disciplinary process cannot satisfy the requirements of a fair process. As was held in **Francis Njeri Kariuki v Kenya Institute of Management (2024**.**) eKLR,** a hearing where the accuser is presiding cannot be said to be a fair hearing. In the authority of **Judicial Service Commission v Gladys Boss Shollei & another [2014] eKLR**, this court held that the perception of bias can only be based on established facts and that the test is whether there was a real danger and threat of bias. The facts here plainly establish this danger. The appeal process was tainted from day one. This defect alone is sufficient to render the entire disciplinary process procedurally unfair. On substantive fairness, the summary dismissal letter cited four grounds: insubordination, failure to act on tasks assigned, violation of leave procedure and violation of the code of conduct on confidentiality. The Respondent served the Appellant for over five years without any prior disciplinary action or warning letters. The Appellant sought to produce a warning letter dated 22nd October, 2019 to counter this, but the fact remains that no warning was issued in the period immediately preceding the summary dismissal and the incidents cited in the show cause letter were largely situational in character, arising from operational challenges created by the pandemic-driven understaffing. Taken together with the procedural infirmities, the substantive finding of unfair termination by the trial court is affirmed and established. The 2nd issue for determination is whether the Respondent is entitled to the reliefs awarded by the trial court. The reliefs awarded by the trial court were: salary in lieu of notice of Kshs. 48,000.00; compensation for unfair termination of Kshs. 336,000.00; service pay of Kshs. 75,000.00; and unpaid and untaken leave of Kshs. 67,200.00, together with orders for issue of a Certificate of Service to the Respondent. On salary in lieu of notice, the Appellant submitted that since the termination was by way of summary dismissal, no notice pay was due. This court has found the summary dismissal to be procedurally unfair. A dismissal that is procedurally unfair is treated as an unlawful termination and the reliefs that flow from such termination become payable. The award of Kshs. 48,000.00 for one month's salary in lieu of notice is therefore affirmed. On compensation for unfair termination, section 49(1)(c) of the Employment Act,2007 gives this court power to award compensation in the event of unjustified dismissal. The relevant factors under section 49(4) include the circumstances of the termination, the length of service, the employee's conduct contributing to the termination, efforts to mitigate loss, and any other relevant considerations. The trial court awarded Kshs. 336,000.00, equivalent to seven (7) months' gross salary. The Respondent served the Appellant for over five years without prior disciplinary action. The Appellant submitted, and this Court notes, that the Respondent obtained alternative employment shortly after her dismissal. It is also relevant that the Respondent's own conduct, while not sufficient to justify summary dismissal without fair process, did contribute to the disciplinary action taken. In **Regent Management Limited v Wilberforce Ojiambo Oundo [2018] eKLR** the court held that where a judge awards maximum compensation, reasons must be given. The trial court gave its reason as the Respondent's clean record of service over five years. This Court finds no basis to interfere with the quantum of seven months' compensation. The award of Kshs. 336,000.00 is upheld. On service pay of Kshs. 75,000.00, section 35(6)(c) and (d) of the Employment Act, 2007 provides that an employee is not entitled to service pay if he or she is a member of the National Social Security Fund or any other scheme established and operated by an employer. The Appellant produced payslips forming part of the Record of Appeal confirming that it deducted and remitted NSSF contributions of Kshs. 200.00 and NHIF contributions of Kshs. 1,100.00 per month on the Respondent's behalf throughout the period of employment. The Respondent herself confirmed in cross-examination before the trial court that the Appellant paid NSSF and NHIF contributions for her. This was accepted by the trial court as a matter of fact. The legal consequence of that finding is clear. As was held in **Felix Mwalimu v Nairobi Safari Club [2022] eKLR** and **Hassanath Wanjiku v Vanela House of Coffees [2018] eKLR**, an employee who is a member of NSSF is not entitled to service pay under section 35(6) of the Employment Act, 2007. This Court finds that the award of service pay by the trial court was made in error. The award of Kshs. 75,000.00 for service pay is therefore set aside. On unpaid and untaken leave of Kshs. 67,200.00, the trial court itself made a damaging finding in its judgment to the effect that: "The claim for rest days, unpaid and untaken leave lacks material particulars and it is exaggerated. It is not humanly possible for the Claimant to have worked without rest days or leave. The trial court expressed itself as follows, “I find that the prayer lacks proper basis for computing and thus is irrational.” Despite making this finding, the trial court proceeded to award Kshs. 67,200/= without offering any reasoning or basis thereof. A court cannot on the one hand find a claim to be unsubstantiated, irrational and lacking proper basis and on the other hand make an award in respect of it. To do so is to act inconsistently with its own findings and to fail the test of judicial reasoning. The award of Kshs. 67,200.00 for unpaid and untaken leave was therefore made in error and is set aside. On the Certificate of Service, the Appellant submitted that a Certificate had already been issued as evidenced by the clearance form. This Court has examined the Record of Appeal. The clearance form records the completion of exit procedures but does not constitute a Certificate of Service as envisaged under section 51 of the Employment Act, 2007. The Appellant has not produced the actual Certificate of Service it claims to have issued. The order for issuance of a Certificate of Service is upheld. On the 3rd issue, whether the learned Magistrate exhibited bias, the Appellant submitted that the judgment contained a factual error in attributing sexual advances to the Line Manager Lemmy Manja when the evidence on record, including the minutes of the disciplinary hearing, disclosed that it was the Business Development Manager, one, Peter Monari who was so accused. This factual error is established. The minutes of the disciplinary hearing confirm that the Respondent identified the Business Development Manager, not the Line Manager, as the person who had made advances to her. However, the test for judicial bias is not whether a court made an error of fact. Courts of all levels make errors and that is the purpose of a hierarchical appellate system. The test, as stated in **Judicial Service Commission v Gladys Boss Shollei & another [2014] eKLR**, is whether there was a real danger that the judicial officer unfairly regarded with favour or disfavour the case of a party. Bias must be established through evidence, not merely asserted and dissatisfaction with the outcome of a case is no justification for impugning the integrity of judicial officers, as was noted in **Civicon Limited v KRA [2014] eKLR**. The factual error in the judgment regarding the identity of the person who made advances to the Respondent, while unfortunate, did not form the basis of the court's finding on the fairness of the termination, which rested on established procedural defects. No real danger of bias is established on the evidence. The allegation of bias therefore fails. On the 4th issue of costs, the appeal has been partially allowed. The Appellant has succeeded on two of the monetary awards challenged. The Respondent has ably defended the core finding of unfair termination and the primary awards. However, and in these circumstances, the Respondent carries the costs. Having considered the Record of Appeal, the evidence adduced at trial, the submissions of the parties and the applicable law, the appeal is partially allowed. The finding of the trial court that the termination of the Respondent's employment was unfair and unlawful is affirmed. The awards of service pay and unpaid and untaken leave are set aside. The remaining monetary awards are upheld. I am therefore inclined to partially allow the appeal and order as follows; 1. A declaration be and is hereby issued that the termination of the Respondent's employment by the Appellant was unfair and unlawful. 2. The Appellant be and is hereby ordered to meet and pay the following sums to the Respondent: 3. One (1) month’s salary in lieu of notice …………………………Kshs. 48,000.00 4. Seven (7) months salary compensation for unfair termination ……..Kshs. 336,000.00 **Total of Award……………………………………………………Kshs. 384,000.00** 1. The Appellant shall issue the Respondent with a Certificate of Service within thirty (30) days of this judgment. 2. Interest on the monetary award shall run at court rates from the date of the trial court's and this judgment until payment in full. 3. The costs of the appeal shall be borne by the Appellant. Delivered, dated and signed this **15th** day of **July** 2026. **D. K. Njagi Marete** **JUDGE** Appearances: 1. Miss Aketch holding brief for Michuki instructed by Michuki & Michuki Advocates for the Appellant. 2. Mr. Makori instructed by Musa Juma & Company Advocates for the Respondent.