https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2274

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI** **ELRC CAUSE NO. E425 OF 2022** **BRIAN NJOROGE WAMATU…………………….…………….CLAIMANT** **VERSUS** **SAFARICOM PLC……….…………………………………….RESPONDENT** **JUDGMENT** **Background** 1. The Claimant instituted these proceedings to challenge the Respondent’s decision to terminate his contract of service. It is his case that the decision was unlawful. 2. The Claimant contends that the Respondent engaged his services as VAS Product Manager with effect from 17th November 2008. He avers that he had risen through the ranks to the position of Head of Regional Expansion at the time his employment was terminated in August 2019. 3. The Claimant avers that he served the Respondent with dedication, a fact which he asserts is demonstrated by his excellent performance reviews. He avers that as a result of the foresaid, his salary was gradually increased from Ksh. 170,000.00 in 2008 to 1,200,000.00 in 2019. 4. The Claimant contends that on the evening of 7th June 2019, he was accosted by six men whilst having dinner at an eatery within Nairobi. He alleges that the six men assaulted and dragged him into a waiting car. 5. The Claimant avers that the men took him to the CID Headquarters for interrogation. However, he alleges that they did not divulge the reason for his arrest. 6. The Claimant avers that he was subsequently moved to two other police stations where he was variously held until 10th June 2019 when he was arraigned in court on a charge of computer fraud and demanding Ksh. 300,000,000.00 with menaces. He avers that the charge was subsequently amended to conspiracy to commit a felony. 7. The Claimant blames the Respondent for his tribulations. He contends that the Respondent orchestrated his arrest and arraignment in court in order to use him as a scapegoat for loss of data. He further alleges that the arrest and arraignment in court was part of a wider boardroom squabble within the Respondent’s Board. 8. The Claimant contends that after he was arraigned in court, the Respondent suspended him from duty and issued him with a letter of show cause dated 14th June 2019 which required his response by 18th June 2019. He alleges that the Respondent rejected his request for more time to respond to the show cause letter and invited him to attend a disciplinary hearing on 21st June 2019. 9. The Claimant avers that he immediately wrote to the Respondent to inform it (the Respondent) that the aforesaid date was not convenient since he was scheduled to report to the CID offices on the same day pursuant to a court directive. He avers that despite this, the Respondent wrote to him on 21st June 2019 at 4.01 PM (4.19 PM as per the evidence on record) to notify him that the hearing will proceed as scheduled from 4.00 PM. 10. The Claimant contends that the Respondent’s actions were malicious since it should have accorded him another date for hearing of the disciplinary case in view of the fact that he was engaged at the CID office on 21st June 2019. He further contends that it was malicious for the Respondent to write to him at 4.01 PM on 21st June 2019 to inform him that his case was to be heard from 4.00 PM on the same day. 11. The Claimant contends that this demonstrates that the Respondent had predetermined the case. He avers that the purported hearing was a charade intended to give legitimacy to a predetermined process. 12. The Claimant contends that after he failed to appear before the Disciplinary Committee on 21st June 2019, the Respondent issued him a letter of summary dismissal. He avers that although he challenged the decision on appeal, the said appeal was dismissed. 13. The Claimant contends that the Respondent had no legitimate reasons to terminate his employment. He further contends that the process that resulted in the decision to terminate his services was flawed and denied him an opportunity to be heard. 14. The Claimant also avers that the events that resulted in the termination of his contract negatively impacted on his reputation. It is his case that the Respondent’s actions against him portrayed him as a criminal and a person of unethical and unscrupulous character. As such, he contends that his reputation has been damaged. 15. As a result of the matters aforesaid, the Claimant prays for various reliefs in the Memorandum of Claim to wit:- 16. A declaration that his contract of service was unfairly terminated. 17. General damages for wrongful termination of his contract of service. 18. Payment of various amounts as particularized in the Memorandum of Claim. 19. An order directing the Respondent to retract the allegations against him. 20. Aggravated and punitive damages for defamation of character. 21. Severance and or gratuity pay. 22. Costs of the suit. 23. Interest on the amount claimed. 24. In response, the Respondent avers that the Claimant conspired with other employees to illegally:- 25. Access, compile, share and sell sensitive customer subscriber data contrary to its (the Respondent’s) policy. 26. Request for and receive data loss protection controls information which he was not authorized to have. 27. Request for and receive information on compensation of various senior management staff of the Respondent which information he was neither authorized to have nor required for execution of his duties. 28. The Respondent avers that upon learning of the foregoing, it reported the matter to the criminal investigative agency. It contends that after the agency carried out investigations, it found the complaint justifiable and caused the Claimant’s arrest and arraignment in court. As such, it denies that the report to the police was actuated by ulterior motive as asserted by the Claimant. 29. The Respondent avers that its role in the criminal process was confined to reporting the matter to the police. It denies that it played any role in publicizing the matter through various media platforms as claimed by the Claimant. 30. The Respondent denies the Claimant’s assertion that the decision to terminate his services was without justification and disregarded due process. It contends that after the Claimant was arraigned in court, a decision was made to suspend him from duty as communicated to him in a letter dated 11th June 2019. 31. The Respondent avers that the suspension was necessitated by the need to conduct investigations into the matter. It contends that the Claimant was to continue earning his full salary during the suspension. 32. The Respondent avers that it issued the Claimant with a letter of show cause on 14th June 2019 which notified him of the accusations against him and called for his response by 18th June 2019. It contends that the Claimant proffered his response to the letter on 18th June 2019. 33. The Respondent avers that upon receipt of the Claimant’s response, it wrote to him on 19th June 2019 inviting him for a disciplinary hearing on 21st June 2019 at 4.00 PM. It contends that the letter inviting the Claimant for the hearing set out the accusations against him. 34. The Respondent asserts that despite the invite, the Claimant did not attend the disciplinary hearing alleging that he had a meeting with the Directorate of Criminal Investigations (DCI) on the same day pursuant to a court order. However, the Respondent disputes this fact contending that the session with the DCI was scheduled for an earlier time on 21st June 2019 and that the Claimant attended to the DCI and left long before 4.00 PM. 35. The Respondent asserts that following the Claimant’s failure to turn up for the disciplinary hearing, the case proceeded in his absence. It contends that the Disciplinary Committee recommended termination of his services following which, he was issued with a letter dated 24th June 2019 for summary dismissal. 36. The Respondent asserts that the Claimant lodged an appeal against the decision through his letter dated 4th July 2019. However, it contends that the appeal was disallowed and the Claimant was duly notified of this through its letter dated 1st August 2019. **Issues for Determination** 1. After evaluating the pleading, evidence, submissions by the parties and the applicable law, the following issues present for determination:- 2. Whether the Claimant’s contract of service was improperly terminated. 3. Whether the Claimant’s claim for defamation is merited. 4. Whether the Claimant is entitled to the reliefs which he seeks through this action. **Analysis** 1. Whether the Claimant’s contract of service was improperly terminated turns on two things: whether the Respondent had a justifiable reason to terminate his services; and whether the Respondent processed the Claimant’s discharge from service in accordance with the dictates of fair procedure (see ***Walter Ogal Anuro v Teachers Service Commission [2013] KEELRC 386 (KLR)***). 2. The law does not obligate an employer to have infallible evidence establishing an infraction by an employee before he (the employer) can terminate the employee’s services on account thereof. All that is required is for him (the employer) to demonstrate that his decision was informed by a genuine belief that the employee had committed the infraction in question. 3. This is self-evident from section 43 (2) of *the Employment Act* which provides as follows:- *‘’The reason or reasons for termination of a contract are the matters that the employer at the time of termination of the contract genuinely believed to exist, and which caused the employer to terminate the services of the employee.’’* 1. The above position has been affirmed through case law. For instance, in the case of ***Kenya Revenue Authority v Gitahi & 2 others [2019] KECA 300 (KLR),*** the Court of Appeal had this to say on the matter:- *‘’It is improper for a court to expect that an employer would have to undertake a near forensic examination of the facts and seek proof beyond reasonable doubt as in a criminal trial before it can take appropriate action subject to the requirements of procedural fairness that are statutorily required…..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 services. That is a partly subjective test.’’* 1. In the instant case, the Respondent accused the Claimant of having colluded with other members of staff to improperly procure and disclose confidential customer data to third parties. It also accused him of improperly procuring data on compensation of members of management. It asserted that the Claimant’s conduct breached the confidentiality clauses in his contract of service and its policy instruments. 2. The Respondent’s belief that the Claimant committed the aforesaid infractions was based on an investigation it conducted on the matter whose results were documented in the Investigation Report dated June 2019 (see pages 52 to 66 of the Claimant’s bundle dated 28th June 2022). Part of the conclusions in the report read as follows:- *‘’Brian Wamatu* *Brian colluded with Billy Kinuthia and Charles Kimani to steal company information for sale to third parties. His actions have put Safaricom at risk of litigation and loss of brand trust.’’* 1. According to the Investigation Report, the investigators arrived at this conclusion after analyzing data from the phone gadgets of the three individuals (Brian Wamatu, Billy Kinuthia and Charles Kimani). The investigators found that Billy Kinuthia disclosed to the Claimant the amount the Claimant’s line manager received as a ‘’sign on bonus’’ and also shared with him information on remuneration levels of some EXCO members. The investigators also deduced from the texts on the phones that the three individuals had been in conversation regarding the purchase of Safaricom data. 2. The Respondent contends that the Claimant was not supposed to procure and share the impugned data with third parties. And hence the decision to subject him to disciplinary action. 3. In the Claimant’s response, he denied having procured the data in question. However, the Respondent was not satisfied with the response and hence the decision to convene a disciplinary hearing for him on 21st June 2019. 4. The record shows that the Claimant did not attend the disciplinary session. As such, the case was determined in his absence. However, the minutes of the session show that the Disciplinary Committee considered all the material that was placed before it (including the Claimant’s responses to the show cause) in arriving at its decision. 5. In their closing submissions, counsel for the Claimant rely on the averments in the affidavits sworn by one Benedict Kabugi Ndungu on 2nd October 2019 and one Daniel M Ndaba on 8th July 2019 in High Court Civil Suit No. 194 of 2019 and High Court Civil Suit No. 247 of 2018 respectively to urge the court to find that the Disciplinary Committee did not have legitimate grounds to hold the Claimant culpable for the infractions he was accused of. However, I do not think that the averments in the aforesaid affidavits can be relied on to fault the findings of the Disciplinary Committee for the simple reason that the said affidavits were prepared after the Committee had rendered itself on the Claimant’s case. As such, they (the affidavits) could not have been placed before the said Committee for consideration before it made its determination. The Committee relied on the material which was placed before it to arrive at its conclusion on the matter. 6. Having regard to the evidence on record, it is evident that the Disciplinary Committee had in its possession an Investigation Report which implicated the Claimant in the impropriety which he was accused of. The Claimant did not attend the disciplinary session to controvert the findings in the report. 7. In the court’s view, the Investigation Report provided sufficient material upon which the Disciplinary Committee and the Respondent were reasonably entitled, at the time, to entertain a genuine belief that the Claimant had committed the infractions in question. As such, the court is satisfied on the basis of this information that the Respondent had a justifiable ground to consider terminating the Claimant’s contract. 8. Regarding procedural fairness, it is apparent from the evidence on record that the Claimant was issued with a notice to show cause letter which set out the accusations against him. It is also apparent that the Respondent gave him an opportunity to respond to the shows cause. 9. The evidence on record shows that the Claimant responded to the show cause on 18th June 2019 and asked for further particulars of the charges which had been leveled against him. He also requested for more time to provide his comprehensive response to the letter. 10. On 19th June 2019, the Respondent wrote to the Claimant declining his request for extension of time up to 25th June 2019 to respond to the show cause. It (the Respondent) informed the Claimant that his case was to be heard on 21st June 2019 at 4.00 PM. It further shared with him a summary of the forensic report. 11. The Claimant contends that the two days which the Respondent gave him to respond to the show cause were insufficient to make a comprehensive response. On the other hand, the Respondent’s position is that the time which was provided to the Claimant was sufficient and that he indeed proffered a response to the show cause. 12. Although the Claimant avers that the time which was given to him to respond to the show cause was insufficient, the evidence on record shows that he nevertheless responded to the letter on two occasions. The first response was proffered on 18th June 2019 when he called for further and better particulars of the charges against him. The Respondent reacted to this request by sending him a copy of the Investigation Report on 19th June 2019. 13. The second response was proffered in a letter written on 21st June 2019 but wrongly dated 18th June 2019. In the letter, the Claimant informed the Respondent that he could not attend the disciplinary hearing scheduled for 21st June 2019 since he was required to report to the DCI on the same day. He thus asked that the hearing be moved to 25th June 2019. 14. In the same letter, the Claimant gave his further response to the accusations against him after he had interrogated the Investigation Report. He contended that the conclusion in the report which indicated that he colluded with Brian Kinuthia and Charles Kimani to steal company information was arrived at without tangible evidence. 15. From the second response, it is apparent to the court that the Claimant was able to proffer a further response to the accusations against him after he had interrogated the Investigation Report. As such, his contention that he was not accorded sufficient time to respond to the show case is without proper basis. 16. The evidence on record shows that the Claimant’s case was heard on 21st June 2019 at 4.00 PM in his absence. There is evidence that the Respondent had notified him of the date and time of the hearing through its letter dated 19th June 2019. However, the Claimant contended that the date was not convenient since he was scheduled to appear before the DCI on the same day. 17. Despite the Claimant’s request to push the hearing to 25th June 2019, the Respondent insisted on conducting the trial as scheduled. The Claimant accuses the Respondent of having refused to adjourn the matter despite being aware that he was also expected to appear before the DCI on the same date. As such, he avers that he was denied a fair hearing. 18. On the other hand, the Respondent contends that the Claimant’s session with the DCI on 21st June 2019 was concluded around midday. As such, it contends that he had the opportunity to appear before the Disciplinary Committee at 4.00 PM on that day but failed to do so without justifiable cause resulting in the case against him proceeding in his absence. 19. The court has cautiously evaluated the evidence on record on this aspect of the case. It is evident that the Respondent informed the Claimant that his case was to proceed on 21st June 2019 at 4.00 PM notwithstanding that he had a scheduled meeting with the DCI on the same date. The Respondent’s position was that the Claimant had the morning of that day to clear with the DCI before appearing before the Disciplinary Committee at 4.00 PM. 20. The Claimant alleges that the session with the DCI went on until around 3.45 PM. On the other hand, the Respondent has tendered evidence to show that the session ended around 12.00 Noon. 21. The Respondent called the investigating officer who met the Claimant at the DCI on the material date. According to the officer, his meeting with the Claimant started at 11.30 AM and lasted for less than 30 minutes. He said that he released the Claimant around 12.00 Noon. 22. On the other hand, the Claimant called the lawyer who accompanied him to the meeting with the DCI. According to the lawyer, the meeting went on until 3.45 PM. 23. The court is disinclined to believe the Claimant’s evidence on the matter because of the inconsistencies in it. Whilst testifying in chief, the Claimant’s witness stated that he was with the Claimant at the DCI from 10.00 AM on 21st June 2019. He asserted that the DCI officer who was to meet the Claimant did not report at the station until after 12.00 Noon and only saw the Claimant around 2.00 PM. Yet, in his written witness statement, he asserted that the Claimant was with the officer from 10.00 AM. 24. The discrepancy in the evidence by the Claimant’s witness as to the time the Claimant met the DCI officer on 21st June 2019 renders his evidence incredible. As such, the court is inclined to believe the Respondent’s account on the time the meeting between the Claimant and the DCI commenced and ended. 25. The evidence on record shows that the Disciplinary Committee called the Investigating Officer before the disciplinary hearing proceeded to confirm whether the Claimant was still in the meeting with him. According to the Respondent, the officer informed the Committee that the meeting with the Claimant ended around 12.00 Noon. This narrative was confirmed by the officer when he testified in court. 26. From this evidence, it is apparent that the Claimant’s engagement with the DCI ended around 12.00 Noon. Yet, he did not attempt to make it to the disciplinary session which was scheduled for 4.00 PM on the same day. 27. The Claimant had no plausible explanation to account for his failure to turn up for the disciplinary hearing at 4.00 PM on 21st June 2019. As such, he cannot blame the Respondent for having proceeded with the case against him in his absence. 28. The Claimant posits that the Respondent did not revert to him in time to notify him that his request to postpone the disciplinary hearing had been declined and that the hearing was to proceed at 4.00 PM as scheduled. He contends that the Respondent only reacted to his request at 4.19 PM (4.01 PM) asserting that the hearing was to proceed at 4.00 PM when the time for the session had already passed. 29. The Claimant’s contention that the Respondent only reacted to his request to postpone the session to 25th June 2019 at 4.19 PM on 21st June 2019 is incorrect. At page 41 of his trial bundle is an email by David Kinuu to him (the Claimant) which was sent out at 10.01 AM on 21st June 2019. In the email, the said David Kinuu who described himself as the Respondent’s Head of Department HR Operations, acknowledged the Claimant’s request to adjourn the hearing but declined the request. He reaffirmed the Respondent’s position that the disciplinary case was still scheduled for 4.00 PM on that day. The email stated as follows:- *‘’Dear Brian,* *I acknowledge receipt of your email.* *We appreciate the commitments that you have pursuant to the court orders of 10th June 2019 as noted in your letter of 21st June 2019.* *It is for that reason that we scheduled your disciplinary hearing for today’s date at 4.00 PM.* *This gives you ample time to attend to the DCI at your convenience in the course of the day.* *We note your leave request and remind you that you are currently on suspension and it was our aim to close the investigation and give you a chance to be heard at the earliest opportunity. In this regard and appreciating the arrangements made so far to accommodate you and the legal obligations upon you, the disciplinary hearing remains scheduled for Friday 21st June 2019 4.00 PM at SCC, Large Boardroom, 6 Floor.* *In the meantime, I urge you to report to the DCI at your earliest convenience today and we look forward to seeing you at 4.00 PM today.* *Regards,* *David Kinuu* *Head of Department HR Operations’’* 1. The record shows that after the Respondent terminated the Claimant’s services, he appealed the decision. According to the available evidence, the appeal was heard and dismissed. 2. The Claimant also contends that the Respondent breached its Disciplinary Policy Manual which obligates it to subject an employee who is accused of an offence to an informal disciplinary process in the first instance. He contends that instead of adopting this approach, the Respondent subjected him to the formal disciplinary process in the first instance. 3. It is true that the Respondent’s Disciplinary Manual provides for two forms of disciplinary processes: informal; and formal. Clause 5.2 of the manual provides that complaints against an employee should be addressed informally through direct communication between the employee and his line manager. However, it also provides that if the complaint cannot be resolved informally, the employee may be subjected to a disciplinary process. 4. Clause 5.2.2 of the manual provides for two categorizes of offenses: misconduct; and gross misconduct. 5. Clause 5.2.3 thereof stipulates that incidents of misconduct will be dealt with informally by an employee’s line manager. However, it also provides that serious offenses will be processed through the formal disciplinary process. 6. It is thus apparent that whilst the Disciplinary Manual provides for the informal method of resolving disciplinary cases, this only applies to minor offenses. For serious offenses which entitle the Respondent to summarily dismiss an employee (see clause 5.2.4 of the manual), the Respondent is entitled to subject the employee to a formal disciplinary process. As such, it (the Respondent) did not breach its disciplinary procedure when it subjected the Claimant to a formal disciplinary process which resulted in his summary dismissal from employment. 7. Taking into account the totality of the evidence on record, the court is satisfied that the Respondent accorded the Claimant procedural fairness. The fact that the Claimant did not take advantage of the opportunity to attend the disciplinary hearing cannot be blamed on the Respondent. 8. The next issue for consideration is whether the Claimant was defamed as a result of the events which resulted in his dismissal from employment. As seen earlier, the Claimant’s case is that after he was arrested on 7th June 2019, he was subjected to a criminal inquiry which was widely reported in the local media. He contends that this injured his standing in society. He blames this state of affairs on the Respondent’s decision to instigate the criminal process against him. 9. The Claimant attributes his defamation to events which happened in June 2019. Yet, he filed suit to claim for damages for defamation of character in June 2022, approximately two years from the date of the cause of action. 10. Section 20 of *the Defamation Act* requires a claim for defamation of character to be filed within one year of accrual of the cause of action. As such, the action by the Claimant, coming two years from the date of accrual of the cause of action, was time barred. 11. However, even assuming that the claim was presented within time, it would still have failed for want of proof. Defamation is deemed to have occurred only if it is demonstrated that the defamatory material were published to a third party and that the publication has negatively impacted the third party’s view of the person affected. In the premises, for one to prove defamation, he ought to present independent evidence from persons who contend that he was defamed (***Muriuki v Muthama & another [2025] KEHC 14877 (KLR))***. 12. Although the Claimant alleged that he was defamed as a result of the Respondent’s actions, he did not call independent witnesses to affirm this fact. As such, the claim for defamation fails for want of proof. 13. The final issue for consideration is whether the Claimant is entitled to the reliefs which he seeks in the Memorandum of Claim. Having come to the conclusion that the Respondent’s decision to terminate the contract of service between the parties was legitimately executed and having found that the Claimant has not established the claim for defamation, it follows that the reliefs sought in the Memorandum of Claim cannot be granted. 14. The Claimant also claimed for the value of the shares which were allocated to him under the ESOP scheme. However, he did not present cogent evidence to support the claim. As such, it (the claim) also fails for want of proof. **Determination** 1. The upshot is that the court finds that the instant suit is devoid of merit. 2. As such, it is dismissed. 3. Each party to bear own costs of the suit. **Dated, signed and delivered on the 30th day of July, 2026** **B. O. M. MANANI** **JUDGE** In the presence of: …………….for the Claimant …………….for the Respondent **ORDER** **In light of the directions issued on 12th July 2022 by her Ladyship, the Chief Justice with respect to online court proceedings, this decision has been delivered to the parties online with their consent, the parties having waived compliance with Rule 28 (3) of the ELRC Procedure Rules which requires that all judgments and rulings shall be dated, signed and delivered in the open court.** **B. O. M MANANI**