https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2105

 **REPUBLIC OF KENYA** **IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT** **NAIROBI** (ON Makau J on 21st July 2026) **ELRC CASE NO. E870 OF 2023** **DOLLY B. WANJA …………………………………………….CLAIMANT** **VERSUS** **ST. JOHN AMBULANCE OF KENYA…………………..RESPONDENT** **JUDGMENT** **Introduction** 1. By a Memorandum of Claim dated 15th August 2022, the Claimant sued the Respondent for unfair termination of her employment and prayed for the following: - 2. ***A declaration that Claimant's termination from the Respondent's employment was unprocedural, unfair and unlawful and unconstitutional.*** 3. ***Compensation equivalent to 12 months' salary amounting to Kshs. 3,347,916.00.*** 4. ***Notice pay for Kshs. 278,993.00.*** 5. ***Certificate of service.*** 6. ***A fine of Kshs. 100,000 against the Respondent for failure to comply with the mandatory provision of section 51(3) of the Employment Act, 2007.*** 7. ***Service pay at the rate of 15 days for every year worked.*** 8. ***Exemplary damages.*** 9. ***Punitive and aggravated damages.*** 10. ***Compensation for constitutional rights violation to be assessed.*** 11. ***Interests on (a-h) above from the date of filing the suit.*** 12. ***Costs of this suit.*** 13. ***Any other relief that the court may deem appropriate to grant.*** 14. The Respondent filed a Reply to the Memorandum of Claim dated 27th November 2023 admitting the employment relationship but denying that the termination was unfair or unlawful. It averred that the Claimant's termination was fair, lawful, non-discriminatory as it was grounded on a valid reason and the claimant was taken through disciplinary hearing. Therefore, it averred that the Claimant is not entitled to the reliefs sought and prayed for the suit to be dismissed with costs. 15. When the suit came up for hearing on 12th February 2026 the parties agreed to dispense with oral evidence and instead adopted their respective witness statements and bundle of documents as evidence and proceeded to file written submissions. **Evidence** 1. The Claimant's evidence was contained in written statement dated 15th August 2022 and supported by the following 13 documents: - a) Contract of employment dated 31st July 2008. b) Appointment letter dated 11th February 2016. c) Pay slip for July 2019. d) Letters dated 11th April 2019 and 21st May 2019. e) Claimant's explanation letter dated 6th June 2019. f) Letter dated 28th June 2019. g) Letter dated 31st July 2019. h) Suspension letter dated 6th August 2019. i) Summary dismissal letter dated 16th August 2019. j) Excerpt of pages 22-27 of the Human Resource Manual. k) Letter dated 21st May 2019. l) Demand letter dated 3rd August 2022. 1. In brief, the Claimant stated that she was employed by the Respondent as its Finance and Administration Officer from 1st September 2008 reporting to the Chief Executive Officer. She was responsible for all the financial and administration functions of the Organization and her monthly salary was Kshs. 80,000.00. 2. She devoted her whole time, attention and ability in the performance of her duties and undertook her duties diligently which saw her being promoted to the position of the Principal Executive Officer with effect from 1st February 2016. Her monthly salary was increased to Kshs. 221,375.00 and further to Kshs. 278,993.00. 3. The Claimant averred that on 21st May 2019, she was issued with a letter inviting her to explain why she wrote a recommendation letter to Mr. Bernard Mbaiphira, a former employee, on 24th January 2019. The letter followed an earlier which had been issued to her dated 11th April 2019 requiring her to explain why she had called Mr. Mbaiphira as alleged by his lawyer in a letter dated 10th April 2019 addressed to the organization. 4. The Claimant stated that she wrote an explanation on 6th June 2019 indicating that the recommendation letter was written on the assumption that the former employee was looking for another job and not for use for court cases. She explained that the recommendation letter was actually sent to the Respondent’s Mombasa office of the organization for onward transmission to the former employee and it was never issued to him directly. 5. She further stated that the Respondent through its Chief Executive Officer wrote a letter dated 28th June 2019 informing her that he would liaise with the Finance and Administration Committee on the way forward after he received her explanation. 6. Subsequently, the Claimant issued with a letter dated 31st July 2019 informing her to attend a committee meeting of the Finance and Administration Committee where she was expected to give an explanation on the issue of Bernard Mbaipira. She attended the said meeting on 6th August 2019 but thereafter she was surprised to receive a letter dated 6th August 2019 suspending her from her duties till further notice. 7. Subsequently, she was issued with a letter dated 16th August 2019 summarily dismissing her from employment for writing a positive recommendation letter to Mr Bernard Mbaiphira who had earlier been dismissed by the Respondent. The dismissal letter alluded to a disciplinary hearing on 6th August 2019 which according to her was only a committee meeting as per the letter dated 31st July 2019. 8. The Claimant stated that at no one point was she aware that the Organization was contemplating terminating her services for breach of Clause (XI) of her contract of employment and/or for negligence of duty when she was invited for the committee meeting on 6th August, 2019. Therefore, she averred that she was deeply aggrieved by the Respondent's abrupt decision to summarily dismiss her from employment. 9. She contended that the summary dismissal was done in a very inhumane, unfair and illegal manner. She also contended that she was not provided with an opportunity for seeking redress against the Respondent's decision, which was contrary to the Human Resource Manual. 10. She felt humiliated and undignified in the way she lost her job despite working diligently for more than 11 years without receiving a single warning letter. She believed there was an ulterior motive in the Respondent's decision to terminate her services as her contract was awaiting renewal at the time of termination as per letter dated 21st May 2019 which indicated that her performance contract was being reviewed. 11. She stated that she has suffered without any source of livelihood since she is yet to secure an alternative employment. She contended the respondent’s failure to issue her with a Certificate of Service has reduced the chances of her employability. She averred that despite serving a demand letter to the Respondent seeking redress, the same was blatantly ignored. 12. On the other hand, the Respondent's case was contained the witness statement of its Human Resources and Administration Officer, Ms. Winnie Njoroge, dated 6th February 2026. In brief, she stated that she is the custodian of the Claimant's employment records and the Respondent's Human Resources Policies, and therefore fully conversant with the facts giving rise to this suit. 13. She confirmed that the Claimant entered into an employment contract dated 31st July 2008 with the Respondent and later she was appointed the Principal Executive Officer with effect from 1st February 2016 after the reorganization of the secretariat. 14. She stated that on 24th January 2019, the Claimant wrote a positive recommendation letter to a former employee of the Respondent Organization, Bernard Mbaiphira, who had been dismissed from employment for gross misconduct. She contended that the claimant did that despite the fact that she was a member of the disciplinary panel that recommended for dismissal of said employee. 15. She further stated that the Claimant had earlier requested Mr. Opanga (the Coast Executive Officer, where Bernard Mbaipira worked) to write a recommendation letter, but Mr. Opanga turned down the Claimant's request and advised the Claimant that the only thing the dismissed former employee was entitled to was the Certificate of Service. 16. She stated that the Claimant went on to omit the positive recommendation letter from the official employment records of the dismissed former employee at the Respondent Organization so as to conceal her dishonest acts. On 11th April 2019, the Respondent through the then Chief Executive Officer, wrote to the Claimant notifying her of the positive recommendation letter received from Bernard Mbaiphira's advocate and the need to get an explanation of the contents of the said letter before 16th April 2019. 17. The Respondent once again, after becoming aware of what had transpired, on 21st May 2019, through the then Chief Executive Officer, wrote to the Claimant requiring an explanation of the Claimant's actions not later than 7th June 2019. The Respondent through the then Chief Executive Officer, on 31st July 2019, wrote to the Claimant inviting her to appear before the Finance and Administration Committee on 6th August 2019 at 8 am for a hearing. The Claimant was also requested to bring with her a chosen representative to represent her during that hearing. 18. She stated that after the hearing on 6th August 2019, the claimant was served with a suspension letter until further notice. On 16th August 2019, pursuant to the disciplinary hearing that took place on 6th August 2019 and upon consideration of the Claimant's defence, the Priory Council decided to summarily dismiss the Claimant from employment. The Claimant was then invited to collect her terminal dues and advised that the Certificate of Service would be issued at a later date. 19. She contended that the Certificate of Service was delivered to the Claimant's advocates for onward transmission to the Claimant and by a letter dated 3rd May 2023, the advocate confirmed receipt of the Certificate of Service. **Submissions and issues for determination** 1. The Claimant filed her submissions dated 20th March 2026 while the Respondent filed its submissions dated 24th April 2026. Having considered the pleadings, evidence and submissions, there is no doubt that the parties herein were engaged in an employer-employee relationship from 1st September 2008 to 16th August 2019 when the respondent summarily dismissed the Claimant. The issues for determination are: - 2. Whether summary dismissal of the claimant was unfair and unlawful. 3. Whether the Claimant is entitled to the reliefs sought. **Analysis** * 1. **Unfair and unlawful summary dismissal** 1. The Claimant contended that her dismissal from employment was unfair and unlawful but the Respondent was of a different view. Section 45 (2) of the Employment Act provides that: - **"*(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. The Respondent's witness, stated that the Claimant was summarily dismissed for writing a positive recommendation letter to a former employee, Bernard Mbaiphira, on 24th January 2019, after the said former employee had been dismissed from employment due to gross misconduct. She stated that the Claimant was a member of the disciplinary panel that recommended for the dismissal of the employee. She further stated that the Claimant had earlier requested Mr. Opanga to write a recommendation letter but he turned down the request and advised the Claimant that the only thing the dismissed employee was entitled to was the Certificate of Service. 2. The Claimant admitted that she wrote the recommendation letter but explained that it was written on the assumption that the former employee was looking for another job and not for use for court cases. The recommendation letter had actually been sent to the Mombasa office of the organization for onward transmission to the former employee and it was never issued to him directly. 3. She clarified that the letter was general in nature as it only pointed out to the duties that were undertaken by Bernard Mbaiphira and his employment period which was not in dispute. She maintained that the fact that she stated that he performed his services diligently and was helpful did not in any way invalidate the fact that Bernard Mbaiphira had been dismissed by the company. 4. The recommendation letter in issue was dated 24th January 2019 and it stated as follows: ***“TO WHOM IT MAY CONCERN*** ***Dear sir/Madam.*** ***RE: BERNARD MBAPHIRA FRANCIS*** ***This is to inform you that Bernard Mbaphira was employed as a Driver with St. John Ambulance Kenya in the EMS Department Coast Region 13th August 2007 to 10th November 2018.*** ***He performed his services diligently and was helpful.*** ***Duties that he performed are as follows:*** * ***Carry regular and daily vehicle checks as specified and ensure cleanliness.*** * ***Ensure the assigned vehicle is fueled.*** * ***Ensure proper hand-over recording during driver change over.*** * ***Provide vehicle records i.e mileage, fuel, work ticket, when required.*** * ***Ensure only authorized patients are carried in the vehicle.*** * ***Drive the vehicle with utmost care.*** * ***Ensure licensing and insurance is always updated.*** * ***Track down mileage and report regular servicein the time for booking.*** * ***Report any defects detected in the vehicle and follow procedure for reporting accidents.*** * ***Ensure all vehicle use is authorized.*** ***We would not hesitate to recommend him for employment.*** ***Yours faithfully,*** ***Dolly Wanja*** ***Principal Executive Officer”*** 1. The relevant law to consider is Section 51 of the Employment Act, which provides as follows: - ***“(1) An employer shall issue to an employee upon termination of his employment a certificate of service.*** ***(2) No employer is bound to give to any employee a testimonial, referral or certificate relating to the character or performance of an employee.*** ***(3) An employer who fails to issue a certificate of service to an employee commits an offence and shall on conviction be liable to a fine not exceeding one hundred thousand shillings.”*** 1. It is clear from the above provision that while an employer is only bound to issue a Certificate of Service to his employee but not testimonial, referral or certificate relating to the character or performance of an employee. However it is also clear that the subsection (2) does not prohibit an employer from giving a testimonial, referral or certificate relating to the character or performance of an employee. 2. The Respondent has not demonstrated that the Claimant's actions were beyond his mandate, or that without the said recommendation Bernard Mbaiphira would not have filed any suit against it, or that any suit filed without the recommendation letter would have failed. The Respondent has also not proved that the recommendation letter was malicious and false about the position he served, the duties he performed, his performance and the helpfulness of his services for the years served. 3. The Claimant maintained that the recommendation letter was a general opinion on the claimant given on the assumption that Bernard Mbaphira was looking for another job. This assumption is corroborated by the email written by Pius Opanga to Alber Ruturi on 15th May 2019 stating that: ***“I wish to clarify that Bernard Mbapira seems to have collected a recommendation letter most likely from the PEO Dolly Wanja after he had been dismissed.*** ***This is after he had been pestering us for the letter in order to get employment elsewhere. The PEO requested me to write him a recommendation letter but which I declined to issue and instead advised that he is entitled to certificate of service.*** ***I did not see the contents of the letter as it was addressed directly to the former driver.*** ***Yours faithfully,*** ***PIUS OPANDA*** ***CEO. COAST”*** 1. The Claimant rightly submitted that a recommendation letter in itself can only be used for purposes which it is written for and does not in any indicate that the officer was never dismissed from service for cause. The letter was only recommending Bernard Mbaiphira for another employment opportunity. Therefore, it was upon the new employer to do a background check before hiring the officer. 2. The Respondent relied on the case of **Naqvi Syed Omar v. Paramount Bank Limited & another [2015] eKLR**, which held that where an employer suspects the employee of stealing; or where the employee carelessly and improperly performs his role; the employer has the right to summarily dismiss the employee under section 44(4) of the Employment Act. However, in the present case, the Respondent has not demonstrated that the Claimant's actions amounted to careless and improper performance of her role. 3. As regards the alleged concealment of the recommendation letter from the Respondent's records, the Claimant was never afforded a chance to deny or admit the said allegation during the Financial Administration Committee meeting on 6th August 2019. No investigation report or witnesses testified against the claimant before the Financial Administration Committee meeting and no minutes of the meeting were produced as exhibits. 4. Having considered the totality of the evidence before the court, and in view of the observations and finding made above, I reached the conclusion that a reasonable employer would not have dismissed the Claimant for writing the recommendation letter to the former employee for the purpose it was sought. Consequently, I hold that the Respondent has failed to prove on a balance of probability, that there existed a valid and fair reason for the summary dismissal of the Claimant within the meaning of section 43 and 45 of the Employment Act. 1. **Procedural fairness** 5. Section 45 (2) (c) of the Employment Act places on the employer the burden of proving that termination of employment contract was done in accordance with fair procedure. Section 41 of the Act then sets out the procedure for terminating employment for misconduct as follows: - ***“ (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 summary 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. The above procedure is mandatory and the bear minimum is that before terminating the services of an employee on account of misconduct the employer must accord the employee an oral hearing. During the hearing the employer is required to explain the misconduct to the employee in a language he/she understands. The employee is entitled to have another employee present during the explanation and both the employee and his companion are entitled to respond to the allegations. Finally, the response by the employee and his/her companion must be considered before the verdict is made, which must be communicated to the employee in a fair manner. 2. The Respondent submitted that the Claimant was invited for a disciplinary hearing before the Finance and Administration Committee through a letter from the then Chief Executive Officer dated 31st July 2019. The Respondent, through the Finance and Administration Committee, explained to the Claimant the reasons why termination of her employment was being considered. The Claimant was also requested, in the letter dated 31st July 2019, to attend the hearing with a representative of her choice. During the hearing, the Claimant was reminded of her right to be accompanied by a witness/representative and she confirmed that she had opted to come alone. 3. The Claimant submitted that although she was summarily dismissed by the letter dated 16th August 2019, the record does not show that formal disciplinary proceedings were undertaken in compliance with section 41 of the Employment Act. There is no indication by way of letters before court that disciplinary proceedings were being undertaken against the Claimant. There is no evidence of minutes of a disciplinary hearing against the Claimant. 4. The Claimant further submitted that the letters dated 11th April 2019, 21st May 2019, 28th June 2019 and 31st July 2019 did not indicate that the Respondent was contemplating disciplinary actions against the Claimant. The letters did not also indicate under which grounds the Respondent intended to summarily dismiss the Claimant. The invitation to the committee meeting did not also indicate it was a disciplinary hearing. 5. I have carefully examined the letters on record. By the letter dated 11th April 2019 the Claimant was required to explain why she had severally called Mr Mbaiphira after his dismissal. By another letter dated 21st May 2019 she was required to explain why she wrote a recommendation letter to the same person on 24th January 2019. By a letter dated 31st July 2019 she was invited to appear before the Finance and Administration Committee 6th August 2019 to offer explanation on the recommendation letter she gave to Mbaphira. 6. None of the above letters indicate that the Respondent was contemplating termination of the Claimant's employment or that the meeting of 6th August 2019 was a disciplinary hearing. Under section 41 of the Employment Act, the Claimant was entitled to be made aware that the employer was contemplating termination and the reason for the same be explained to him in a language he understands, and in the presence of another employee of her choice. Thereafter she was entitled to a fair opportunity to defend herself, and the defence be considered before the decision to dismiss her was made. The respondent did not comply with the above mandatory procedure. 7. Under Clause 3 of the Respondent’s Human Resource Manual, disciplinary procedure takes three levels. First, is the informal process of trying to resolve matters before instituting any formal disciplinary process. This happens at the departmental level and the employee is entitled to representation. That informal. 8. The next two levels happen during formal disciplinary process and includes investigatory hearing followed by disciplinary hearing. In case of misconduct or serious misconduct, investigatory hearing is to be conducted by the appropriate Senior Manager accompanied by another manager. The investigating manager presents his /her findings in the presence of the employee who has been suspected. The employee is entitled to representation at this hearing. Witnesses should be called at this stage and the employee (or representative) allowed to question the witnesses. 9. After the full presentation of the facts, the employee is to be afforded an opportunity to states his/her case and thereafter the case is adjourned to give the Senior Manager and the other manager hearing the case, to discuss the case and make a decision, which may be recommendation not take further action, or counselling, or to proceed to disciplinary hearing. Once the decision is made all the parties must be called back to the meeting informed of the decision. 10. Should the decision taken be that disciplinary hearing proceeds, the following threshold has been met: 11. The employee has been informed by letter that the investigation may turn intoi a disciplinary hearing, and that he has the right of representation. 12. He has been told in advance what the nature of complaint is, and had time to consult with a representative. 13. All the facts have been produced at the investigatory hearing, and the manageris in a position to decide on disciplinary action. 14. The manager should inform the employee and their representative that the hearing would now become a formal disciplinary hearing, and invite them to say anything further in relation to the case. 15. The HR manual provides that it may be appropriate to adjourn the proceedings and make necessary arrangements for attendance of the employee’s representatives if requested. The claimant’s evidence was that the respondent did not follow the above procedure in its HR Manual and therefore the burden of proof shifted to the employer. I have no doubt that the respondent did not discharge that burden of proof by adducing evidence. 16. The Claimant was only invited to give explanations to the Finance and Administration Committee meeting after responding to the letter dated 21st May 2019. No investigatory hearing and a decision made by the appropriate senior Manager alongside another manager to refer the matter to disciplinary hearing under Clause 3 of the HR Manual. Without the investigatory hearing, and a decision to refer the matter to disciplinary hearing, the claimant could not have been subjected to any valid disciplinary proceedings under the respondent’s HR Manual. 17. An employer is bound by its own Human Resource Policies and Procedures Manual, and failure to comply with the same renders any disciplinary action taken against an employee procedurally unfair and unlawful. In this case, the respondent did not comply with the detailed disciplinary procedure set out under clause 3 of its HR Manual and section 41 of the Employment Act. Therefore, I find that the summary dismissal of the claimant by the letter dated 16th August 2019 was not in accordance with a fair procedure. 18. Having found that the reason for the dismissal was not valid and that fair procedure was not followed before dismissing the claimant from service, I hold that he dismissal was unfair and unlawful within the meaning of section 45 of the Employment Act. **Reliefs** 1. The Claimant prayed for several reliefs. In view of the foregoing conclusion I find that he is entitled to a declaration that the termination of his employment by the Respondent unfair and unlawful within the meaning of Section 45 of the Employment Act. 2. Flowing from the said conclusion, the Claimant is entitled to salary in lieu of notice and compensation under Section 49 of the Employment Act. Clause X of his appointment letter provided for one month notice before termination or payment of salary in lieu of notice. I award him one month salary in lieu of notice being Kshs.278,933. 3. As regards compensation for unfair termination, I have considered that the claimant had served for eleven years without any warning letter. I have further considered the claimant’s contract had lapsed but extended to facilitate performance review towards renewal of the contract. She contended that she had a legitimate expectation to continue working for the Respondent. Consequently, I award her four months gross salary as compensation for unfair termination being Kshs. 1,115,972. 4. As regards prayer for a Certificate of Service, the Respondent's witness stated that the same was delivered to the Claimant's advocates on record for onward transmission to the Claimant. The letter confirming receipt of the Certificate of Service is dated 3rd May 2023 and received on 4th May 2023. The Respondent has therefore complied with Section 51(1) of the Employment Act by issuing the Certificate of Service. Consequently, I decline to order the respondent to issued another certificate of service. 5. For the same reason, I decline to order the Respondent to pay a fine of Kshs. 100,000 for the alleged failure to comply with the mandatory provision of section 51(3) of the Employment Act, 2007. The Respondent has demonstrated by evidence that it issued the claimant with a Certificate of Service through her lawyers. 6. The Claimant further prayed for service pay at the rate of 15 days for every year worked. The Respondent submitted that the Claimant has no legal basis to claim service pay as she was a registered member of the National Social Security Fund Scheme which the Respondent remitted the dues timely. I have also noted from her payslip for July 2019 that she was beneficiary of a pension scheme to which the employer contributed. Section 35(6)(d) of the Employment Act provides that an employee who is a member of the National Social Security Fund or pension scheme is not entitled to service pay. Consequently, I decline to grant the prayer for service pay. 7. The Claimant also prayed for exemplary, malicious, punitive and aggravated damages. The Respondent submitted that such damages are reserved for cases where the employer's conduct is oppressive, arbitrary, or unconstitutional. I have considered the circumstances of this case. I do not find that the Respondent's conduct was so oppressive or arbitrary as to warrant exemplary or punitive damages. I have awarded the Claimant compensation for unfair termination plus salary in lieu of notice to remedy the unfair termination suffered and therefore I find that the no further damages are warranted. 8. Finally, the Claimant prayed for compensation for constitutional rights violation but the Respondent submitted that this claim is misconceived, bad in law, vague and incompetent, as it was not brought under the requisite procedure of a Constitutional Petition. I do not entirely agree with the Respondent's submissions. However, I am of the view that the alleged breach of the Claimant's constitutional rights under Article 41 of the Constitution have adequately been compensated above under section 49 of the Employment Act. **Conclusion** 1. I have found that the dismissal of the Claimant was unfair and unlawful within the meaning of section 45 of the Employment Act. I have further found that the Claimant is entitled to some of the prayers sought. Consequently, I enter judgment for the Claimant against the Respondent as follows: - 2. A declaration that the Claimant's termination from the Respondent's employment was unprocedural, unfair and unlawful. 3. Compensation for unfair termination Kshs. 1,115,972 4. Notice pay Kshs. 278,993 **Total Kshs. 1,394,965** d) The award is subject to statutory deductions. e) The Claimant is awarded costs and interest at court rate from the date of this judgment until payment in full. **DATED, SIGNED AND DELIVERED VIRTUALLY IN OPEN COURT AT NAIROBI THIS 21ST DAY OF JULY, 2026.** **ONESMUS MAKAU** **JUDGE** **Appearance:** Keino for Claimant Sakwa for Respondent