1.The Claimant filed a Memorandum of Claim dated 22nd January 2018.
2.The Claimant was employed by the Respondent on 1st July 2013 as a managing director.
3.The Claimant avers that on 3rd July 2014 the Respondent served him with a letter of notice to show cause why he should not be summarily dismissed on grounds that:-
4.The Claimant avers that he provided a written response vide a letter dated 15th December 2014 in which he responded to each accusation and explained the notice to show cause was unfounded and made in bad faith.
5.The Claimant avers that he was called to an alleged disciplinary hearing on 19th January 2015 however he was neither given an opportunity to defend himself nor called a representative of his own during the hearing as required under section 41 of the Employment Act.
6.The Claimant avers that the hearing was attended by Gerald Mwaka- Chairman; Phoebe Muindi- Director; Mary Kisuke- Director; Samuel Mutua- Director; Agnes Muteti- Ag. MD; Brenda Kiberenge- Legal Officer, Tanathi Water Services Board and Richard Muindi- Machakos County Government representative.
7.The Claimant avers that the Respondent contravened tenet 27 of the code of ethics for board of directors of the Respondent by failing to report the Claimant’s alleged misconduct to the CEO, Tanathi Water Services as he is the authorised person to issue appropriate sanction and penalty as he may deem fit.
8.The Claimant avers that on 31st January 2015, the Respondent’s chairman issued him a letter in which he was summarily dismissed on grounds that the board of directors resolved to do so in view of the serious allegations of misconduct levelled against him.
9.The Claimant avers that the termination letter and the reasons therein were unfair, unjust and in breach of the Employment Act, the Respondent’s Code of Ethics or Board of Directors and his letter of appointment.
10.The Respondent aver that since the Claimant’s employment he has acted contrary to the regulations and guidelines in accordance with his letter of appointment dated 3rd July 2015 and was implementing his own decisions.
11.The Respondent aver that the Claimant was given several written and oral warnings which he defied including side lining the managing director in his decisions, recruiting new employees without the board’s consent, making abrupt decisions singlehandedly, conspiring with cartels to defraud the company, disregard of work ethics expected of him as can be seen in the Respondent’s documents attached.
12.The Respondent’s aver that it conducted a disciplinary panel by following correct procedures required in law by serving the Claimant a notice to show cause first and have the panel sitting on 19th January 2018 in which the Claimant was found to have violated his mandate, incompetent to serve as a managing director and the Claimant was paid his dues and summarily dismissed.
Evidence in court
13.This court took note and ordered that the court records affirm that the Claimant served the Respondent’s advocate and the Respondent in person Affidavits of service dated 21st February 2023 and 7th March 2023 respectively were field as proof of service but Respondent and/or his advocate were absent during the hearing therefore the court ordered the case to proceed exparte.
14.The Claimant adopted his witness statement dated 23rd January 2018 together with the memorandum of claim as his evidence in chief and list of documents dated 22nd January 2018 as his exhibit.
15.The Claimant testified that he was dismissed by the Respondent on 31st January 2015 and that the Respondent neither issued him with a notice of the disciplinary hearing nor notified him that he could take a witness to the board meeting he attended where he was informed it was a disciplinary hearing.
16.The Claimant further testified that the alleged minutes of the disciplinary hearing did not contain his response.
17.The Claimant further testified that the 1st Respondent cancelled his paternity leave and that he was dismissed while on leave which was made indefinite.
18.The Claimant testified that the summary dismissal was unfair as he was denied a fair hearing.
19.The Claimant submitted that in as much as he responded to the notice to show cause, the Claimant was not accorded a fair hearing as he was not notified that he had a right to have an independent representative during the proceedings as required under section 41 of the Employment Act.
20.The Claimant submitted that the disciplinary panel failed to consider the Claimant’s explanations and he testified that whatever he communicated during the said meeting was not put in writing, verbatim in the said minutes.
21.The Claimant submitted that the summary dismissal from employment was malicious, unfair and unlawful as the allegations were never proven nor substantiated and the procedure was wrong and unlawful.
22.The Claimant further submitted that the Respondent did not rebut the Claimant’s testimony with any evidence hence the reliefs sought in his memorandum of claim together with costs and interests for reason that his termination was unfair and unlawful as the Respondent contravened Article 41 and 27 of the Constitution and sections 19, 36, 41, 43, 44 and 45 of the Employment Act.
Analysis and Determination
23.The first issue is that the Respondent did not rebut the Claimant’s testimony with any evidence. The court is guided by the case of Billiah Matiangi v Kisii Bottlers Limited & another  eKLR where the court held: -
24.In view of the foregoing, although the Respondent herein did not produce any evidence in this court in support of its case, the Claimant must prove that he was indeed wrongfully and summarily dismissed.
25.The law clearly provides that for an employer to lawfully terminate an employee, it must prove that it has a substantive justification to terminate the employment and that procedural fairness under Section 41 of the Employment Act was adhered to. In Galgalo Jarso Jillo v Agricultural Finance Corporation  eKLR, the court held that:-
26.The Employment Act fully embodies what are legal requirements to lawfully summarily dismiss an employee from employment as seen in the below quoted sections.
27.Section 41 of the Act provides as follows: -
28.Section 43 provides as follows:
29.Section 45 of the Act provides in part as follows: -
30.Section 47(5) of the Act stipulates as follows: -
31.And section 44 (4) (c), (d) and (e) of the Act stipulates as follows:
32.The Respondent vide his statement of response produced the notice to show cause letter dated 3rd December 2014 which was also produced by the Claimant as his exhibit no.4 and minutes of the board of directors held on 19th January 2015 which detailed the allegations against the Claimant which constituted justifiable or lawful grounds for the dismissal under section 44 of the Employment Act. There was however no concrete evidence to support the allegations as provided in the employment laws.
33.Further more the Respondent failed to meet the procedural fairness set out in Section 41 (1) of the Employment Act as no evidence was adduced before this court that the Claimant was notified earlier of the disciplinary hearing and the allegations levelled against him before the alleged disciplinary hearing to enable him prepare a proper defence.
34.In reference to the disciplinary hearing minutes, it stated: - “the show cause letter was read to him and after consideration it was found out he had omitted some accusations which he was given a chance to defend himself.”
36.In the case of Galgalo Illo vs Agricultural Finance Corporation 2021 eKLR supra the court held that even where substantive grounds exist to justify termination certain procedural structures must be observed by the employer to uphold the broad principles of natural justice.
37.The court finds the respondent did not pass the fairness test of justifying the termination of the claimant and also failed to observe procedural fairness. The court finds the claimant was unlawfully terminated and judgment is entered in his favour.
38.The court holds that since claimant was unlawfuly terminated he is entitled to certain reliefs as listed hereunder.i.Compensation for unlawful termination under section 49 of employment act pegged at 3 months considering the period he worked for the respondent kshs 273,000/-ii.One-month salary in lieu of notice 91,000/-.iii.Accrued leave days between July 2014 to January 2015, 45,000/-TOTAL 409,000iv.Costs are awarded to the claimant as wellv.Interest is also awarded from date of judgment till full payment.Orders accordingly.