[2024] KEELRC 596 (KLR)

Wanyera v Central Isiolo Investment Limited (Appeal E002 of 2023) [2024] KEELRC 596 (KLR) (8 March 2024) (Judgment)

Neutral citation: [2024] KEELRC 596 (KLR)

Republic of Kenya

In the Employment and Labour Relations Court at Meru

Appeal E002 of 2023

ON Makau, J

March 8, 2024

Between

Michael Namuwa Wanyera

Claimant

and

Central Isiolo Investment Limited

Respondent

(Being an appeal from the Judgment of the Chief Magistrate’s Court at Isiolo delivered on 20th December 2022 by Hon.Lucy K.Mutai -CM in MELRC Cause No.3 of 2021)

Judgment

1. The Appellant was employed by the Respondent on the 10th April 2014 as a Petroleum Tank Driver for a monthly salary of Kshs. 25,000 excluding housing allowance. Thereafter the salary was increased to 30,000. He diligently worked for 5 years six months, until 19th September 2020 when his employment was terminated for alleged syphoning of fuel from the lorry. He was aggrieved by the termination and sued the employer before the Magistrate’s Court at Isiolo alleging that there was no valid reason to justify the same and that he was condemned unheard. By the suit, the Appellant prayed for a declaration do issue that his termination was unfair and unlawful; Kshs. 4,277,186 as compensation for the unfair termination plus terminal dues; and for costs and interest.

2. The respondent denied liability for the alleged unlawful termination and averred that it is the appellant who terminated his employment by absconding from work. Therefore, it prayed for the suit to be dismissed with costs.

3. After hearing the suit, the trial court (Hon. Lucy K.Mutai-CM) rendered the impugned judgement on 20th December 2022 whereby he found that the claimant had failed to prove unfair termination and instead held that the claimant had resigned from his employment.

4. The appellant was dissatisfied with the said decision and filed this Appeal on the following grounds:a.The Learned Magistrate erred in law and in fact in finding that the Appellant had failed to prove a case for unlawful termination of employment under section 47(5) of the Employment Act contrary to the evidence on record.b.The Learned Magistrate erred in law and in fact in finding that there was no evidence of termination of the Claimant’s services contrary to the available evidence on payment of one month’s salary in lieu of notice and salary of September 2020. c.The Learned Magistrate erred in law and in fact in failing to find that the Respondent failed to prove the reasons for termination were valid and justify the process for termination as provided for under sections 43 and 41 of the Employment Act.d.The Learned Magistrate erred in law and in fact in failing to find that termination of the Claimant’s employment was unlawful for the reason that the Claimant was not granted a hearing as contemplated under the mandatory provisions of section 41 of the Employment Act.e.The Learned Magistrate erred in law and in fact in negatively commenting on being called upon to rely on the evidence tendered in Court and the pleadings yet the law is very clear that those are the only materials to be relied upon by the Court in arriving at a judgement.f.The Learned Magistrate erred in law and in fact in relying on misleading evidence erroneously presented in the submissions of the Respondent not tendered in Court by either the Appellant or the Respondent to the effect that the Appellant had not been interdicted, sacked or suspended contrary to the evidence on record.g.The Learned Magistrate erred in law and in fact Introducing her opinion and relying on extraneous evidence of transfer of the Appellant and in the process blamed the Appellant for refusing to go on transfer which evidence tendered in court by either the Respondent or the Appellant to rule against the Appellant.h.The Learned Magistrate erred in law and in fact by failing to find that the Appellant was entitled in law to payment of house allowance even after the Respondent failed to produce records to prove payment of the same.i.The Learned Magistrate erred in law and in fact by failing to find that the Appellant was entitled to payment for service for the six years even after finding that the Respondent had failed in its legal obligation to register the Appellant with National Social Security Fund.j.The Learned Magistrate erred in law and in fact in failing to find that the Appellant was entitled to compensation for unlawful termination of employment after the Respondent failed to prove the validity of the process leading to termination.k.The Learned Magistrate erred in law and in fact failing to find that the Appellant was entitled to payment of leave allowances for the period he worked for the Respondent.l.The Learned Magistrate erred in law and in fact in misinterpreting and or misapplying the provisions of section 47(5) of the Employment Act, sections 107 and 108 of the Evidence Act on proof of unlawful/ unfair termination to the detriment of the Appellant.m.The Learned Magistrate erred in law and in fact in finding that the Appellant accepted that he was involved in fuel syphoning contrary to the evidence on record and the pleadings.n.The Learned Magistrate erred in law and in fact introducing extraneous matters.

5. The Appeal was canvassed by way of written submissions. The Appellant filed his submissions on 28th September 2023 and the Respondent on 27th October 2023.

Appellant’s submissions 6. The Appellant framed the following issues for determination:a.Whether the Appellant’s employment was terminated by the Respondent?b.Whether the Appellant prove his case for unlawful termination pursuant to section 47(5) of the Employment Act?c.Whether the decision of the trial court was based on the evidence tendered in Court by the parties or extraneous matters?d.Whether the Appellant was entitled to the reliefs sought in the memorandum of claim?

7. On the first issue, it was submitted that the appellant’s employment was terminated by the respondent on account of an email from Vivo and as a result the respondent paid him Kshs. 60,000 being salary for September and October 2020. Accordingly, it was submitted that the trial contradicted clear evidence and held that there was no evidence of termination of the claimant’s employment. It argued that the trial court made a decision that was contrary to the evidence tendered and urged this Court to find that the Appellant’s employment was terminated on 22nd September 2020.

8. On the second issue, it was submitted that RW1 corroborated the Appellant’s evidence that his employment was terminated on 22nd September 2020 when he stated that he was terminated on account of an email from VIVO accusing him of syphoning fuel and that he paid the Appellant 2-months’ salary. It was further submitted that the Appellant was not taken through a disciplinary hearing before termination in accordance with section 41 of the Employment Act. It was argued that, compliance with section 41 was mandatory in order to meet the procedural fairness required under Article 47 of the Act of the Constitution and section 4 of the Fair Administrative Actions Act.

9. For emphasis reliance was placed on the cases of Janet Nyandiko v Kenya Commercial Bank Ltd [2017] eKLR and Walter Ogal Anuro v Teachers Service Commission [2013] eKLR, where the court held that the employer must explain to the employee the reason upon which termination is being considered and then accord him an opportunity to defend himself.

10. It was submitted that there was no valid reason to justify the termination and the trial court erred when it failed to make such finding. It was argued that the Respondent never investigated the alleged fuel syphoning and never reported the offence to the police, despite it being a criminal offence. Further that the allegation of the Vivo employee who wrote the email fuel syphoning was not called as a witness to prove the allegation and as such the email amounted to hearsay. Consequently, it was submitted that the trial Court erred in failing to find that the respondent had not discharged its burden of justifying.

11. In view of the foregoing matters, this Court was urged to find that the reason for termination was never proved and termination was therefore unlawful. Reliance was placed on the cases of Anthony Yamo Ihito v Basco Products (Kenya) Limited [2022] eKLR and Pius Machafu Isindu v Lavington Security Guards Limited [2017] eKLR where the Courts emphasized the requirement of the employer to prove the reasons for termination.

12. On the third issue, it was submitted that the trial fell into error by entering a judgment which was unsupported by evidence. It was argued that a judgement should be based only on the pleadings and the evidence adduced by parties at the trial but not irrelevant evidence tendered through the parties’ submissions. It was further argued that the assertion that the Appellant was transferred to another station did not arise in the pleadings or the evidence in court but in the respondent’s written submission dated 29th November 2022. Therefore, it was submitted the allegation ought not to have formed the basis of the judgement.

13. For emphasis, reliance was placed on the case of Robert Ngande Kathathi v Francis Kivuva Kitonde [2020] eKLR cited in the case of Daniel Toroitich Arap Moi vs. Mwangi Stephen Muriithi & Another [2014] eKLR where the court emphasized that submissions do not form the basis of a judgement.

14. On the fourth issue, it was submitted that although section 74 of the Employment Act mandates the Respondent to keep accurate records of its employees, the Respondent herein failed to produce the said records including the policy documents on working hours to disprove the appellant’s claims. It was submitted that the Court erred in refusing to grant the reliefs sought including three month’s salary in lieu of notice, service pay, rest day, leave allowance and overtime, on the basis of some invoices and petty cash payment vouchers produced by the respondent.

15. It was argued that the Respondent did not produce any evidence to prove that it paid the monies claimed and thus failed to discharge its burden of proof. Reliance was placed on the case of Agatha Bugosi Said v Vegpro Kenya Limited [2014] eKLR, and Clifford Sosi Nyabuto v Board of Governors - Singhsaba Nursery Primary [2016] eKLR.

16. It was also argued that the Respondent’s assertion that the Appellant refused to be registered for NSSF was never substantiated. Reliance was placed on section 19 of NSSF Act, to fault the Respondent for failing to register him, deduct or remint his deductions to NSSF. It was argued that the law mandated the Respondent as the employer to register the Appellant with NSSF. Consequently, it was submitted that the claim for service pay for the 6 years of service equalling to Kshs. 103,846. 80 was merited pursuant to section 35 (1 & 5) of the Act.

17. It was further submitted that the Appellant is entitled to leave allowance as per section 28 of the Act, at Kshs. 180,000/= on grounds that he never took leave for the period worked for the Respondent. Likewise, it was submitted that he is entitled payment of Kshs. 664,70/= for rest days because the Respondent never allowed him to take rest days and he was never paid double pay to compensate him. It was argued that the Respondent failed to prove its allegation by records, that it did not operate over the weekend.

18. As regards the claim of Kshs. 2,492,640/= for overtime worked, it was submitted that he used to work between 6. 00am to 12. 00am but was not paid for the extra 8 hours. He submitted that despite the Respondent’s witness admitted during cross examination that it was impossible to drive from Isiolo to Nairobi and back within the working time between 8. 00am and 400pm. It was submitted that the claim for overtime was made pursuant to Rule 6 of the Regulation of Wages (General) Order and it was not challenged.

19. On compensation for loss of employment, it was submitted that the Respondent terminated the Appellant’s employment when he was not ready to leave and without disclosing the reason contrary to sections 41, 43 and 45 of the Employment Act. It was submitted that the Appellant had reasonable expected to work until retirement, but the same was disrupted by the unlawful termination and therefore entitling him to compensation under section 49 of the Act.

20. The Appellant further submitted that he was entitled to an undisputed amount of Kshs. 100,000/= as baggage allowance to cater for his transport back home as he was from western Kenya. The Appellant also submitted that he was entitled to Kshs. 6,000/= for unpaid mileage allowance as was confirmed by RW1 as opposed to the amounts of Kshs. 2,000/=, 4,000/= and 5,000/= paid to him. It was submitted that the deficit amounted to Kshs. 151,500/=.

21. In conclusion, it was submitted that the termination of Appellant’s employment did not pass the fairness test and therefore the trial Court erred in finding that the Appellant failed to prove his case. Accordingly, this Court was urged to allow the appeal, set aside the judgement of 20th December 2020 and award the appellant Kshs. 4,338,686.

Respondent’s submissions 22. It was submitted for the Respondent that it did not terminate appellant’s employment unfairly and unlawfully. It was submitted that the termination was lawful because the Appellant was on several occasions caught siphoning fuel from the lorry he was assigned to drive as evidenced by the warning letters and email from VIVO Energy produced as exhibits. It was contended that the reprimand vexed the Appellant who asked for his salary together with one month as he never wished to continue working. He admitted in page 462 of the record that he was never given any termination letter by the employer.

23. It was submitted that a reprimand did not amount to termination as the appellant was required to continue working. Therefore, it was submitted that the appellant voluntarily left work and the alleged contravention of section 41,43, and 45 of the Employment Act did not arise. For emphasis, reliance was placed on the case of Edwin Beiti Kipchumba v National Bank of Kenya Limited [2018] eKLR and Postal Corporation of Kenya v Andrew K. Tanui [2019] eKLR.

24. The Court was urged to note that there was a difference between unfair termination and wrongful dismissal as discussed by the Court of Appeal in the case of CMC Aviation Limited v Mohammed Noor [2015] eKLR.

25. It was submitted that the Appellant did not prove a case for unfair termination, and that the reasons for termination were valid as per sections 41, 43 and 47 (5) of the Act. It was argued that section 107 of the Evidence Act placed the burden of proof on the who is party seeking judgment from the court to prove his assertions.

26. It was further submitted that the Appellant’s accepted the said one month pay and an extra month salary as full settlement of his claims and declared that he had no other claims against the respondent.

27. The foregoing notwithstanding, it was submitted that the Appellant only worked for 10-15 days in a month and the rest were rest days. It was further submitted that he never worked on rest days and weekends. It was observed that there is evidence on record that the Appellant made 15 trips in the month of August 2020, and he accepted the pay plus bonus for 15 trips.

28. As regards the claim for service pay, it was submitted that the Respondent failed to make NSSF contributions for Appellant because he refused to register with NSSF. It was argued that NSSF remittance couldn’t be done to a non-existent account.

29. With respect to the claim for housing allowance, it was submitted that the Appellant was being paid Kshs. 2,000/= and Kshs. 6,000/= as housing allowance for Nanyuki and Nairobi trips respectively. The said payment was proved by production of delivery notes as exhibits which were duly signed for by the Appellant while picking his allowance.

30. It was again submitted that, the Appellant was receiving a trip bonus that he duly acknowledged by signing. Besides, the Appellant admitted at page 462 of the record that he was being given Kshs. 6,000/= as mileage to Nairobi and Kshs. 2000/= to Nanyuki together with bonus for trips done.

31. On the other hand, the Respondent contended that the Appellant had an outstanding loan of Kshs. 85,000/= which is evidenced by the petty cash vouchers duly signed by the Appellant and which were produced as exhibits. In view of the matters highlighted above, the Court was therefore urged to dismiss the appeal with costs.

Issues for determination and analysis 32. This being a first appeal, this Court is empowered to re-evaluate the evidence on record and proceed to make its own independent conclusions on the case before it. I gather support from the case of Kenya Ports Authority versus Kuston (Kenya) Limited (2009) 2EA 212, where the Court of Appeal stated as follows:“On a first appeal from the High Court, the Court of Appeal should reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in that respect. Secondly that the responsibility of the court is to rule on the evidence on record and not to introduce extraneous matters not dealt with by the parties in the evidence”

33. In the instant appeal, I have carefully considered the evidence in the record of appeal and the submissions made herein. There is no denial that the appellant was employed by the respondent as a petroleum tank driver for 6 years, until 19th September 2020 when they separated. The issues that fall for determination are:a.Whether the Appellant voluntarily resigned or his employment was terminated by the respondent.b.If the answer to (a) above was termination, whether the same was unfair and unlawful.c.Whether the Appellant is entitled to the reliefs sought in his suit.

Voluntarily resigned or termination 34. The Appellant contended that his employment was terminated by the respondent while the latter maintained that the appellant was vexed by reprimand left the employ voluntarily. It was further respondent’s case that the appellant requested for payment of his salary for September plus another one-month salary as full and final settlement and confirmed that he had no other or further claim against the employer.

35. I have considered the evidence on record and it is a fact that the appellant had been warned against fuel syphoning. The Respondents letter dated 21st August 2020 communicated a last warning to the Appellant as follows:“This will be the last Notice for you in this matter. Please note we will no longer tolerate this behavior as it is tarnishing our name and of our partners.”

36. Subsequently, Vivo Energy wrote to the Respondent an email dated 17th September 2020 stating that:“The illegal activities are tarnishing our name as Vivo Energy Kenya and posing a major HSSE risk exposure and as the Retailer of New Isiolo and Isiolo, you need to take strict measures and actions on the driver, to ensure the reputation is not tarnished and ensuring goal zero is maintained.Kindly relay this message to the driver and site managers.Will be looking forward to your feedback on the measures and actions you have taken in regards to the said matter.”

37. On 22nd September 2020, the appellant signed a petty cash voucher for the Kshs. 60,000/= being payment for September salary and one extra month. The petty cash voucher read that:“Paid for Sept 2020 full salary and one month extra (October 2020) salary. Being full settlement and no further claims.”

38. I am persuaded by the appellant to find that he was dismissed by the respondent for alleged syphoning of fuel to appease its partners including Vivo Energy Kenya. It not a natural consequence for an employee to resign from employment without prior notice and request the employer to pay salary in lieu of notice. The vice versa is the correct position, that is, the guilty party is the one who offers to pay salary in lieu of notice.

39. The respondent alleged that it reprimanded the appellant and the latter opted to quit employment. In august 2020, the employer had given him a last warning and the appellant never quit. It follows that, after Vivo Energy wrote the email dated 20th September 2020, the respondent relied on the said last warning and fired the appellant. It then paid him one-month salary in lieu of notice and made him to sign a settlement agreement in the said petty cash voucher indicating that he had no other claim against the employer.

40. The appellant has sneaked into the record appeal copy of a termination letter (see page 16 of the record). The Respondent contended that the said termination letter was not produced in court and neither was it in the list of documents in the lower court. I have in deed verified from the evidence adduced in the lower court that there was no termination letter produced by the Appellant during the trial and no leave was sought to introduce new evidence at this stage.

41. The existence of the said termination letter notwithstanding, I am satisfied that the weight of the evidence on record tilts in favour of the appellant’s case that was dismissed and did not resign as alleged by the respondent.

Whether the Appellant was unfairly terminated from his employment? 42. The jurisprudence on termination of employment by an employer is now well settled. Termination is unfair and unlawful if it is not justified by a valid reason and if it is not done in accordance with a fair procedure. Section 45 (1 & 2) of the Employment Act which provides for requirements to be considered when determining whether termination was unfair as follows:“1)No employer shall terminate the employment of an employee unfairly.(2)A termination of employment by an employer is unfair if the employer fails to prove:(a)that the reason for the termination is valid;(b)that the reason for the termination is a fair reason—i.related to the employee’s conduct, capacity or compatibility; orii.based on the operational requirements of the employer; and(c)that the employment was terminated in accordance with fair procedure.”

43. Appellant contended that the termination was unlawful and unfair because it was grounded on unsubstantiated allegations and he was not accorded any disciplinary hearing before the termination. Accordingly, the Appellant argued that the trial court erred in not finding that the termination was unlawfully and urged this Court to reverse that finding.

44. Its trite law that an appellate court can only disturb a finding of fact by the trial only on specific instances, including cases were the trial court proceeded on wrong principles, or that he misapprehended the evidence in some material respect, or where the finding was based on no evidence.

45. I have already made a finding of fact the respondent terminated the appellant’s employment and paid him one-month salary in lieu of notice. The question that begs for answer is whether the termination was grounded on a valid reason and done in accordance with a fair procedure.

46. Sections 43(1) provide as follows:“In any claim arising out of termination of a contract, the employer shall be required to prove the reason or reasons for the termination, and where the employer fails to do so, the termination shall be deemed to have been unfair within the meaning of section 45. ”

47. Section 41 of the Employment Act then states that:1. “Subject to section 42(1), an employer shall, before terminating the employment of an employee, on the grounds of misconduct, poor performance or physical incapacity explain to the employee, in a language the employee understands, the reason for which the employer is considering termination and the employee shall be entitled to have another employee or a shop floor union representative of his choice present during this explanation.(2)Notwithstanding any other provision of this Part, an employer shall, before terminating the employment of an employee or summarily dismissing an employee under section 44(3) or (4) hear and consider any representations which the employee may on the grounds of misconduct or poor performance, and the person, if any, chosen by the employee within subsection (1), make.”

48. In George Musamali versus G4S Security Services Kenya Ltd [2016] eKLR the court stated that:“14. A termination of employment takes two stages. First there must be a valid and justifiable reason for termination and once this is established, the termination must be carried out in accordance with the procedure laid down in the employers’ human resource manual or as set out in the Employment Act or both. The most important thing to be ensured is that there is a valid or justifiable reason for termination and that the termination must be conducted by following a fair procedure. This includes furnishing the employee with the charges he or she is facing and affording them an opportunity to defend themselves. It does not matter whether the employee’s guilt is apparent on the face of the record. He or she must be heard no matter how weak or useless his or her defence might seem to be. However, the conduct of the disciplinary hearing does not have to take the rigour of a Court trial. It suffices that the employee was notified of the charges and afforded an opportunity to respond before the decision to dismiss is made.”

49. The Respondent’s case that the appellant resigned upon verbal reprimand for syphoning fuel from the lorry and as such it did not attempt to discharge the burden of proving the reason for termination and the procedural fairness. I have already held that the appellant never resigned but his services were terminated by the respondent. It follows that the appellant’s evidence that he was dismissed for no valid reason and without being accorded any hearing was never rebutted by the respondent. Consequently, I find that the Respondent terminated the appellant’s employment unlawfully and unfairly, and as such the trial court fell into error by finding otherwise.

50. I am satisfied from the evidence on record that the Respondent did not prove that the Appellant syphoned fuel from the tank. There is no cogent proof that the said acts were actually committed by the Appellant as there was no independent investigation done by the Respondent to ascertain that indeed there was fuel syphoning by the Appellant. Neither eye witness nor the author of the email from Vivo Energy Kenya was called to give evidence during the trial and as such, the alleged syphoning of fuel remains hearsay. Terminating an employee’s employment on allegation of misconduct is a serious matter and that is why, the Employment Act has placed the burden of proof on the employer to demonstrate that the reason for termination is factual. The employer is not given the liberty to fire an employee at will or based on mere allegations.

51. From the foregoing, I therefore find that the Respondent did not show that the reason for termination of the Appellant was valid or reasonable. I gather support from the case of Kenya Revenue Authority v Reuwel Waithaka Gitahi & 2 others [2019] eKLR where the Court of Appeal held as follows:“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.’’

52. I have already made a finding that the Respondent did not prove any valid reason for termination, and that a fair procedure was followed before terminating the Appellant’s employment. Consequently, I reiterate that the termination was unfair and unlawful.

Reliefs sought in the lower court 53. The respondent contended that the appellant signed a settlement agreement stating that he had no other claim against the company. The petty cash voucher stated that:“Paid for Sept 2020 full salary and one month extra (October 2020) salary. Being full settlement and no further claims.”

54. There is no indication that the appellant discharged the employer from any further claims related to the employment contract or the termination. Therefore, I find and hold that the said petty cash voucher did not constitute a settlement agreement capable of absolving and discharging the employer from the claims before the court, namely, three months’ notice pay, unpaid housing allowance for 6 years, service pay, 12 months compensation, rest days, leave for 6 years, overtime allowance for 6 years and baggage.

55. I have already found that the appellant’s employment was unlawfully terminated and as such he is entitled to salary in lieu of notice plus compensation for unfair termination under section 49(1) of the Employment Act. He has not proved by evidence that he was entitled to three months’ notice before termination and therefore he is only entitled to one-month salary in lieu of notice under section 35(1) (c) of the Act. He admitted that he was paid Kshs. 30,000 on 22nd September 2020 and therefore the same was settled.

56. As regards the claim for compensation for unfair termination, I have considered that the appellant served for about five and half years and had received warning for alleged misconduct before the termination. Consequently, I award him only three months’ salary compensation for the unfair termination being Kshs. 90,000.

57. The claim for house allowance is also awarded considering that the appellant was neither housed by the respondent nor was he paid house allowance as required by section 31 of the Act. Provision of reasonable housing to an employee is not only recognized under the Act but also Article 41 and 43 of the constitution. Therefore, I award him house allowance at the rate of 15% of the basic pay of kshs. 30,000 which equals to Kshs.4500 per month for the sixty-six (66) months he served before termination being Kshs. 297,000.

58. The claim for rest days and overtime worked lacks material particulars and it is exaggerated. It is not humanly possible for the appellant to have worked for six years for the alleged many hours, without rest day or leave. I also don’t agree with the respondent that the appellant was only working for 10-15 days a month. There is a difference between making a trip and reporting to work. All what I am saying is that these three prayers lack proper basis for computing and they are irrational. Consequently, I award the appellant leave for the last two years of service being 21/30 days x Kshs. 30,000 x 2 = Kshs. 42,000.

59. I also find the claim for service pay merited because the employer had the legal mandate to register the claimant, deduct and remit NSSF contributions for him. The allegation that the appellant refused to register with the NSSF has not been substantiated by evidence. The respondent did not adduce any letter or other documentary evidence to prove that it requested the appellant to register with the NSSF but he declined. Consequently, I find that the appellant is entitled to service pay for the five years served at the rate of 15 days’ basic salary for each completed year of service equalling to Kshs. 75,000.

60. Finally, the claim for baggage allowance of Kshs.100,000 is not supported by evidence and is therefore declined.

Conclusion 61. I have found that the appellant never resigned but he was dismissed by the respondent unlawfully. I have further found that he is entitled to compensation for unfair termination plus the accrued benefits highlighted above. Consequently, I allow the appeal, set aside impugned judgment and substitute there with the following orders:a.A declaration is hereby issued that the termination of Appellant’s employment was unfair and unlawful;b.The respondent to pay the appellant the following:Compensation Kshs. 90,000. 00Leave Kshs. 42,000. 00House allowance Kshs. 297,000. 00Service pay Kshs. 75,000. 00Total Kshs.504,000. 00The award is subject to statutory deductions but in addition to costs of the appeal and the court below. The appellant will also have costs and interest at court rate from the date of this judgment.

DATED, SIGNED AND DELIVERED AT NYERI THIS 8TH DAY OF MARCH, 2024. ONESMUS N MAKAUJUDGEORDERThis judgment has been delivered to the parties via Teams video conferencing with their consent, 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.ONESMUS N MAKAUJUDGE