Njuguna v Embe Water and Sanitation Company Limited (Cause E015 of 2023) [2024] KEELRC 1039 (KLR)

The charges of insubordination, poor performance, misappropriation and unlawful procurement were general and unsupported: no performance evaluation was done, no staff complainants testified, no audit report or EACC/DCI complaint was produced, and the procurement and debts were matters known to and within the Board's own budgetary role. The dismissal followed the claimant's lawful advice against holding an extra special Board meeting without County Government approval, evidencing victimisation contrary to Article 236 of the Constitution.

Although the claimant argued that Luceta Njeri Ngari had resigned and her purported rescission was a nullity, the minutes showed six directors attended on 14th March 2023 and five on 5th April 2023. Even excluding her, at least four or five members remained, satisfying the quorum under Article 65 of the Articles of Association (one third of directors). The quorum challenge therefore failed.

Section 12.4.2 of the HR Manual prescribed show cause, interdiction or suspension, yet the respondent sent the claimant on compulsory leave with only 6 days to respond to the show cause letter instead of the 21 days provided, without justification. However, the claimant responded in writing and was heard orally by the Board and never protested, and the compulsory leave had no effect on the final decision. Under section 41 of the Employment Act the hearing requirement was met.

Having found no valid reason, sections 43 and 45 entitled the claimant to a declaration. Under section 49(1) the court considered his two years of service, legitimate expectation of one further year, clean disciplinary record and lack of prior warnings, awarding six months' gross salary as compensation plus the conceded notice pay. Because the unlawful termination prevented completion of the contract, gratuity at 31% was awarded for the two years actually served.