Onchwati v Karen Blixen Coffee Garden & Cottages Limited (Cause 185 of 2019) [2025] KEELRC 2530 (KLR)

j. Medical cover deductions for thirty one [31] months but insurance not provided Kshs.12,400/ = k. General Damages for breach of legitimate expectation. l. Costs of the suit and Interest at court rates until payment in full. 2. The claimant in support of the claim filed his verifying afidavit sworn on 22nd March 2019; list of witnesses dated 26th March 2019; witness statement of even date; and bundle of documents also dated 26th March 2019. The claimant later filed a supplementary list of documents dated 30th July 2019. 3. The Respondent entered appearance through M/s Barbara Lunani Advocates and filed their memorandum of defence dated 24th June 2019. In support of the said defence, the respondent filed a witness statement of Bonnie Dunbar dated 22nd November 2023; list and copies of documents dated 22nd November 2023 with bundle of documents attached; and list of witnesses dated 22nd November 2023. 4. To counter the Respondent’s defence, the claimant filed a reply to defence dated 30th July 2019. Hearing and evidence 5. The claimant’s case was heard on February 18, 2025, where he testified under oath, adopted his witness statement dated March 26, 2019, as his primary evidence, and sought relief under his claim. He produced documents listed on his list dated March 26, 2019, as C-exhibits 1-10, along with a supplementary list of documents dated July 30, 2019. The claimant was cross-examined by the respondent’s counsel, Mr. Makambo. 6. The respondent’s case was heard on the 20th May 2025 when Dr. Bonnie Dunbar testified on oath as RW1, adopted her witness statement dated 22nd November 2023 as her evidence in chief, and produced filed documents under list of even date. She was cross-examined by counsel for the claimant, Bwoigara. The Claimant’s case in summary 7. The Claimant’s case was that he was employed by the Respondent sometime in February 2004 as an Accountant's Assistant at a salary of Kshs. 20,000/= only on a one-year renewable contract, which was renewed annually from June 1, 2009, to October 2018. The claimant rose through the ranks, and at the time of his termination, he earned a gross salary of Kshs. 111.60. The circumstances of the claimant’s termination from employment were that he proceeded on his accrued annual leave, which had accumulated to 12 months on May 2, 2017, with the Respondent’s permission. The leave was set to lapse on May 2, 2018. On May 2, 2018, the Claimant states that he received a text message on his mobile phone from the Respondent’s acting Human Resources Manager, instructing him to remain on leave and await communication from the Respondent's Director regarding the date he should return to work. Despite following up through phone calls and messages, the claimant did not receive a response about when to resume his duties. On November 1, 2018, the Respondent’s acting Human Resources Manager informed the Claimant via telephone that the Respondent had decided to terminate his employment. The Claimant’s salary for the entire period he was on leave up to July 2018 was paid in October 2018. 8. The Claimant objects to not being given notice of termination and the reason for it. Additionally, the Claimant objects to the Respondent’s failure to pay back loan deductions that were taken from his salary to NIC Bank for a loan of Kshs. 1,900,000/- he took in August 2015, with the Respondent's full knowledge. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2530/eng@2025-09-26 2

page 2 of 12

9. The Claimant argued that the loan of Kshs. 1,900,000/- was unsecured, but the agreement with the bank stipulated that he would repay it in monthly installments of Kshs. 42,800/-, which the Respondent was supposed to remit directly to the bank after deducting the amounts from the Claimant’s salary through a Check Ofi Arrangement between the bank and the Respondent. From August 2017 to October 2018, when the Claimant’s employment ended, the Respondent deducted these installments from his salary but never transferred them to NIC Bank, resulting in the Claimant defaulting on the loan payments. NIC Bank issued a Demand Notice for the outstanding balance. Due to the Respondent’s actions, the loan accrued interest and fines totaling Kshs. 651,754.93/-, and the Claimant was listed with the Credit Reference Bureau. This listing prevented him from obtaining any loan facilities from other financial institutions, hindering his personal development. Respondent's case in brief 10. The Respondent admits that that the Claimant was its employee in the position of Assistant Accountant from September 2006 to June 2018 on a renewable contract and at a salary of Kshs. 20,000/= and which progressively increased to Kshs. 153,111.60. It also admits that the Claimant, requested for and was granted accumulated leave to attend to personal issues, and on 2nd May,2017 he proceeded on a paid twelve months accumulated leave which was meant to end on 2nd June,2018. It is the Respondent’s position, however, that the Claimant failed to resume duty on 2nd June 2018 as agreed, but began making inquiries as to payment of his terminal dues, which the Respondent took as an indication that he did not have any intention of resuming duty. The Respondent denies extending the Claimant’s leave past the indicated 12 months, and/or terminating employment in June 2018, as alleged. 11. The Respondent states that two months after the Claimant was supposed to report to work and after realizing he had failed to do so, the Respondent initiated a disciplinary process by issuing the Claimant a notice to show cause why he should not be terminated for absconding duty. The Claimant was then invited, via his mobile phone, to a hearing scheduled for September 27, 2018, in accordance with Section 41 of the Employment Act 2007. On that date, the Claimant did not appear for the disciplinary meeting. In October 2018, the Claimant contacted the Respondent’s director through SMS to request intervention to allow him to return to work. 12. According to the Respondent, contrary to the Claimant’s claims, the Claimant absconded his duties in breach of the terms of his employment, failed to appear to an internal dispute resolution mechanism and, therefore, the Respondent was forced to declare him redundant. The Respondent afirms that the Claimant was paid his salary for June 2018 to September 2018 despite not having returned to work. 13. On the issue of the loan facility that was obtained by the Claimant from NIC Bank Kenya, the Respondent admits that it deducted monthly installments from the Claimant's salary and remitted the same to the Bank in service of the loan. It states that it was not a party to or a guarantor of the loan. DETERMINATION Issues for determination 14. The claimant identified the following issues for determination in the suiti. Whether the claimant's termination of his employment by the respondent was fair or whether the respondent followed the lawful procedure in terminating the claimant's employment. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2530/eng@2025-09-26 3

page 3 of 12

ii. If the answer to [i] is in negative whether the claimant entitled to damages for unfair termination? iii. Is the claimant entitled to three months' salary in lieu of notice? iv. Was or has the claimant been issued with a certificate of service by the respondent? v. Is the claimant entitled to severance pay or? vi. which payment is the claimant entitled to in in law? vii. Whether there is any unpaid leave travel allowance? viii. Whether there are unpaid salaries arrears by the respondent to the claimant for the months of August, September and October 2018 in this matter? ix. Was there any deduction made from the claimant's salary, which was not remitted to NIC Bank? x. How about damages for unlawful injury of the claimant's credit worthiness in credit bureau due from deducted loan which was not remitted to NIC Bank? xi. Are there accrued unpaid leave days, weekends and public Holidays to the claimant? if yes, what is he entitled with. xii. Whether there was deduction for a medical cover for 31 months in which no medical cover was not provided? xiii. Who should be condemned for the costs and interests of this claim? 15. The respondent in the written submissions addressed the fairness of the termination and reliefs sought. 16. The court was of the considered opinion that the issues placed before the court for determination in the dispute by the parties werea. Whether the termination was lawful and fair b. Whether the claimant was entitled to relief sought. Whether the termination was lawful and fair Claimant’s submissions 17. The claimant states his employment was unfairly terminated on 1st November 2018 by the respondent. That in his written statement dated the 26th March 2019 at para[s] 4, 5, 6, 7 & 8 at pages 10 to 11 of his bundle containing his memorandum of claim, and quoted in part-"...... on the 2nd May 2017, I sought and was granted permission by the respondent to proceed for my accrued annual leave which had accumulated to 12 months, which leave was to lapse on 2nd May [June] 2018......""....... on 2nd May 2018 I received a text message on my mobile phone from the respondent Acting Human Resource Manager informing me that I should extend leave and await communication from the Director of respondent, who was to communicate on the date of reporting back to work [Annexed hereto and marked CO- 3 is a copy of screenshot of SMS sent to the claimant on 2nd May 2018]".... I kept pushing for my date of resumption of my duties through phone calls and messages to no avail......"".... on f" November 2018, the Acting Human Resource Manager of the respondent called me through my personal number and informed me that the respondent had reached a decision to terminate my employment". https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2530/eng@2025-09-26 4

page 4 of 12

18. That On cross-examination of the claimant by the counsel for the respondent, your ladyship, the claimant retaliated and was consistent on what he had stated in his written statement.On the other hand, the witness for the respondent, one Bonnie Dunbar, who is actually, the Director for the respondent, in her written statement dated the 22nd November 2023 at paragraphs 4 & 5 of her written statement she stated as follows; and quoted her-"....... that I am aware that sometime in May, 2017 the claimant, requested for and was granted accumulated leave to attend personal issues, and on the 2nd May, 2017 proceeded on a paid twelve months accumulated leave which leave was meant to end on 2nd June, 2018. Copies of the claimant's leave schedule for the years 2017-2017 appears at pages 3-7 of the respondent's bundle of documents...""..... that the claimant did not resume duty on 2nd June 2018 as earlier agreed. Instead, he started making inquiries as to the payment of his terminal dues which was an indication to the respondent that he did not have intention of resuming duty..." The communication referred to by the claimant at para 5 of his bundle, containing is memorandum of claim above, as coming from the respondent's Acting Human Resource can be found in the claimant's supplementary list of documents at page 1 a chat [SMS] made on 30th April 2018 at 4:28pm and not on 2nd May 2018 as was inadvertently quoted by the claimant and it reads: -"..... Bonnie is in Baringo and will be back on Tuesday next week. She will inform you when she is back about the reporting date. That's what she said. Thanks Jacquiline...."On the part of segment of this issue , from the above state of afiairs, it is abundantly clear that the claimant was very Ready and Keen to resume his job on the 2nd May 2018 at the expiry of the twelve months leave. We wish to state that a simple calculation of the twelve [12] months accumulated leave taken by the claimant was to end on the 2nd May 2018 and not 2nd June 2018 as stated by Bonnie Dunbar above. 19. What the above position therefore means is that, the claim by the respondent that the claimant refused to resume his job after his 12 months accumulated leave, is hollow and without any substance and the same should be dismissed.Moreover, the respondent witness that did a chat with the claimant over the date of resumption of job one Jacqueline Adhiambo was never called as witness for the respondent. Also the allegations by the respondent's witness that the claimant after refusing to report back he started claiming his terminal dues is falsehood. The claimant invited the Honourable court to review the chats at the claimant's supplementary list of documents at pages 1, 2 and 3. What the claimant was asking for in those chats was his salary and not terminal dues as alleged by the respondent's witness. 20. That even if the claimant had failed to resume his job which is vehemently denied by the claimant, the respondent has failed to demonstrate to this court how he was served with the purported notice to appear for disciplinary proceedings. The respondent's witness at para 8 of her written statement dated 22nd November 2023 alleges that the claimant was contacted over his phone to attend disciplinary proceedings by the respondent, yet she has not in her list of documents provided any call logs to that efiect. At paragraph 9 of the above witness's written statement she contradicts herself that the claimant did her a short message [SMS] requesting for her intervention for him to resume job. Why would a person who was not interested for the job do such an SMS? That particular SMS is found also at the claimant's supplementary list of document at page 17 on the 26th October 2018 at 1:03pm : -"Good morning Bonnie. My name is Charles am your employee. I am writing this text to explain to you my predicament. I have worked for you for 14 years and I am honest to you and I love working with you. I have never committed any ofience and I love my work. My leave ended ended on 30th April 2018 and I was supposed to come back to work on 2nd June 2018. I called Jakie on 30th April 2018 to inform her that my leave has ended and she probably told me to that I should report back, however on I may Jackie sent me a text message and told me not to report back........."Moreover, when the Director for the respondent testified before court, it was crystal clear that, the respondent had no structures to conduct any meaningful disciplinary proceeding. For instance, how would Human Resource Manager and a lawyer to the respondent conduct disciplinary proceedings. In an ordinary situation, HR is an https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2530/eng@2025-09-26 5

page 5 of 12

employer who would draft the charge-sheet for disciplinary proceeding. He/she cannot again be part of the proceedings. 21. The respondent did not place before court any HR manual or its structures for disciplinary proceedings in the organization. According to Article 41[1] of the Constitution of Kenya provides that:[1] Every person has the right to fair labour practices." Article 47 [1] & [2] provides that: -[1] Every person has the right to administrative action that is expeditious, eficient, lawful, reasonable, and procedurally fair.[2] If a right or fundamental freedom of a person has been or is likely to be adversely afiected by administrative action, the person has the right to be given written reasons for the action." In CMC Aviation Limited v Mohammed Noor [2015] eKLR, the Court of Appeal [Karanja, Musnga & Gatembu, JJA] stated at paragraph 36 that: -"... Unfair termination involves breach of statutory law... On the other hand, wrongful dismissal involves breach of employment contract, like where an employer dismisses an employee without notice or without the right amount of notice contrary to the employment contract..." This difierentiation has been adopted by other superior Court decisions including Monica Wanza Mbavu vRoofspec & Allied Works Co Ltd [2021] eKLR, per M. Onyango, J.;Section 43 of the Employment, 2007 provides as follows: -[1]. 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". What the above provision means, is that the burden of proof of whether termination of employment is fair or otherwise, is upon an employer and for this instant matter, the respond. Section 45 [2] of the Employment, 2007 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 [c]. [1] Related to the employee's conduct, capacity, or compatibility; or [2] Based on the operational requirements of the employer; and That the employment was terminated in accordance with fair procedure." In Boniface Mwangi v B.O.M. Iyego Secondary School [2019] eKLR, Simon Mbithi Mbane v Inter Security Services Limited [2018] eKLR, Joseph Nzioka v Smart Coatings Limited [2017] eKLR and Stanley Omwoyo Onchweri v Board of Management Nakuru YMCA Secondary School [supni], Felistas Acheha Ikatwa v Charles Peter Otieno [2018] eKLR show:-"......whenever, the employer alleges that the employee absconded duty, it must demonstrate that reasonable efiorts were expended to ascertain the employees whereabouts to appreciate why he/she was not reporting to work. In addition, a notice to show cause is necessary to alert the employee that termination of their employment was under consideration on account of the desertion and a letter of termination ought to follow if the letter to show cause is not responded to....."From the evaluation of the evidence as placed before the court by both parties and the Case-law, the respondent has not discharged its burden of proof. The claimant urged the court to reach a finding that the respondent termination of the claimant's job was unfair. At no time did the claimant fail to resume his job after his twelve accumulated annual leave. The respondent’s submissions 22. The Claimant was employed by the Respondent as an accountant and served in the said role from 1st October 2006 until 1st October 2018, when his services were terminated for failing to report to duty. At the start of his employment, the Claimant was earning a consolidated salary of Kshs. 22,000/= but over the course of his employment he was promoted, and his salary increased several times. At the https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2530/eng@2025-09-26 6

page 6 of 12

time of termination of his employment, the Claimant was being paid a consolidated monthly salary of Kshs. 151,611/=. The Claimant had worked for the Respondent for a long time without taking leave. Therefore, in May 2017, the Claimant requested and was allowed to proceed on 12 months paid leave that had accumulated at the time, and he was expected to report back to work on or about 2nd June 2018. The Claimant confirms this in paragraph 4 of his Witness statement dated 26th March 2019. 23. That when the 12 months' leave lapsed, the Claimant did not report back to work as expected. He instead started making enquiries about his terminal dues showing an inclination that he did not have any intentions of resuming duty. [see paragraph 2.3 of the Memorandum of Response]. Despite his continued absence from work, the Respondent paid the Claimant his salary for the months of June and July 2018 [and the Claimant has admitted at paragraphs 13 of the Memorandum of Claim]. When the Claimant continued to absent himself from work, the Respondent initiated a disciplinary process by issuing the Claimant with a Show Cause letter in August 2018 and inviting the Claimant for a hearing on 27th September 2018. In the foregoing, the Respondent avers that it had a valid reason to terminate the Claimant's employment, it availed the Claimant of the benefit of due process, but the Claimant failed to respond to the show cause letter and the claim for unfair dismissal is not merited. 24. In the foregoing and against the prayers sought by the Claimant, the Respondent submits as follows. The Respondent had a probable cause and valid reason to terminate the Claimant's employment. This limb of submissions covers the overarching prayer and submission by the Claimant that the termination of his employment was unfair. The Respondent terminated the Respondent's employment on account of failing to report back to work after the end of his 12 months' leave. The Claimant admits in his pleadings that he did not return to work after his leave ended on 2nd June 2018. The Claimant was issued with a show cause letter and invited for a disciplinary hearing on 27th September 2018 but failed to respond or attend the hearing. That the termination of the Claimant's employment was for a valid reason and urged the court to uphold it accordingly. 25. Section 43 of the Employment Act allows an employer to terminate employee's services where the employer genuinely believes that the ofience disclosed warrants dismissal or termination in the following terms;"43.[1] 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. [2] 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. [emphasis supplied]" Given the circumstances of what was happening, the failure by the Claimant to report to work after the end of his leave, any reasonable person would have been left with no choice but to believe that the Claimant had absconded duty. In the case of Samuel Kyulu Ndunda v Delmonte [k] Limited [2018] eKLR, the Employment and Labour Relations Court examined the application of the test under Section 43 of the Employment Act and expressed itself as follows; "Section 43[2] is quite clear. The reason for termination is the matters at the time of the termination that the employer genuinely believed to exist. The employer in this case was of the view that the Claimant had siphoned fuel. After hearing testimony from the Claimant and the Respondent's witnesses, the apprehension of the Respondent was not misplaced. The Claimant's story did not add up as he seriously could not expect the Respondent or this court to believe that he was so generous as to use his own money to bail out a colleague who used to ride a motorbike to work. If indeed the colleague was in need of obtaining fuel for his motorbike, he would have made arrangements that would not have entailed the Claimant leaving his work place, driving to a petrol station along Garissa Road and then return with the fuel. [emphasis supplied]." https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2530/eng@2025-09-26 7

page 7 of 12

26. Even if the termination of the Claimant's employment was wrongful, which is denied, the Respondent submits that awarding the Claimant 12 months salary as compensation for wrongful termination as prayed at prayer [g] will be excessive when weighed against material factors under Section 49 as read together with Section 50 of the Employment Act. Section 49 [4] sets out several factors which should be considered in deciding whether to recommend the remedies under 49 [1]; among them:"[b] the circumstances in which the termination took place, including the extent. if any, to which the employee caused or contributed to the termination:[e] the employee's length of service with the employer:the reasonable expectation of the employee as to the length of time for which his employment with that employer might have continued but for the termination;[g] the opportunities available to the employee for securing comparable or suitable employment with another employer:[k] any conduct of the employee which to any extent caused or contributed to the termination:[1] any failure by the employee to reasonably mitigate the losses attributable to the unjustified termination; and[Emphasis added]." Decision Issue 1 - Whether the termination was lawful and fair 27. The threshold for determination of fairness of termination of employment is according to the provisions of section 45 [2] of the Employment Act to wit:- "45[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— [c] [i] related to the employees conduct, capacity or compatibility; or [ii] based on the operational requirements of the employer; and that the employment was terminated in accordance with fair procedure." To pass the fairness test the termination must pass the substantive [in terms of reasons] fairness and the procedural fairness under section 41 of the Employment Act [Walter Ogal Anuro v Teachers Service Commission[2013]eKLR]. 28. The burden of proof in employment claims is as stated in section 47[5] of the Employment Act to wit- "[5] For any complaint of unfair termination of employment or wrongful dismissal the burden of proving that an unfair termination of employment or wrongful dismissal has occurred shall rest on the employee, while the burden of justifying the grounds for the termination of employment or wrongful dismissal shall rest on the employer." The claimant laid basis before the court of the alleged unfair termination and there was a comprehensive response. 29. On the substantive fairness, the burden of proof of the reasons for the termination lies with the employer under section 43 of the Employment Act to wit- "43. Proof of reason for termination [1] 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. [2] 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." https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2530/eng@2025-09-26 8

page 8 of 12

30. The respondent advanced reasons for the termination and stated that the claimant did not resume work after proceedings on the 12 months’ annual leave. The respondent told the court that the Claimant did not respond to the Show Cause Letter or attend the disciplinary hearing . RW1 in her statement said the claimant absconded duties. The respondent produced a letter dated 29th August 2018 titled "invitation for a notice to show cause meeting" for failure to resume duty . The claimant denied receipt of the said letter and submitted there were no call logs to prove he was called by the employer. During cross-examination the claimant was asked whether he resumed work after the 12 months of leave on 2nd May 2018 to which he replied in the negative . He was shown the Notice to show cause letter dated 29Tth august 2018 and confirmed to the court that as at 2nd June 2018 he had not resumed duty. He denied the termination was as a result of failure to resume work. The claimant told the court the Jackie referred to in his supplementary documents was Jacquilyne Odhiambo, the Human resources Manager of the respondent. He told the court he knew the Director Bonnie [RW1]. The claimant told the court on the issues he had with Jackie, he had informed the Director Bonnie in October 2018. 31. On re-examination the claimant told the court he was to resume duty on the 2nd May 2018 but did not because he was told by Jacquelyne, the acting human resources manager that she had instruction of Dr. Bonnie [RW1] for the leave to be extended. That Jacquelyne communicated through SMS and call and relied on the supplementary document. The claimant told the court that he never received any disciplinary documents and that the communication was by email or post ofice. 32. Conversely, RW1 on cross-examination told the court in witness statement the claimant stated he asked for the 12 months leave. She told the court the claimant was to resume duty on the 2nd June 2018. She confirmed there was communication from the MD to the claimant on the 30th April 2018 at 4.38pm [page 1 of the claimant’s supplementary documents]. RW1 said she was not aware of the conversation. The message read-‘ Bonnie is in Baringo and will be back on Tuesday next week. She will inform you when she is back about the reporting date. That’s what she has said . Thanks Jacqueline.’'RW1 told the court that she relied on documents issued to her by the said MD [Jacquelyne ] and her lawyer. That the claimant was called for a disciplinary hearing as per the Invitation Notice to show cause. She confirmed that the boss of the claimant was MD Jacquelyne Odhiambo and was the one who issued the notice. 33. The court found that, from the evidence by the parties, that there was no termination of employment letter produced. The court found on balance of probabilities that the claimant did not resume duty following the message by her boss, referred to as the MD by RW1 of 30th April 2018 at 4.38pm when the claimant was informed that Bonnie[RW1] had said she would inform when he would resume duty. RW1 admitted she relied on the said MD [Jacquelyne] for her testimony. The text message was not controverted. A further communication by the said MD on 28th June 2018 stated that Bonnie was yet to respond. The respondent also produced the thread of chats between the claimant and the said Jacquelyne. One the messages of 17th October the stated Jacquelyne informed the claimant that Bonnie had made a decision on his issue. The court concluded from the foregoing that the claimant did not abscond duty as it was the boss of the claimant under the instruction of the Director [RW1] who stopped him from resuming work. 34. There was no evidence of delivery of the said notice to show cause to the claimant. The letter is dated 29th August 2018 and yet the respondent at pages 19-23 was in communication with the claimant on the employer and did not raise any issue of absconding. RW1 stated in witness statement that the claimant reached out to him in October to intervene on his work. The text was dated 26th October 2018 and there was no response. In the text, the claimant reiterated his communication with Jacquelyne to the extent that Bonnie [RW1] was to decide when he was to return to work since the text of 30th April 2018. This was not a case of an employee who had no intention to stay away from work. Bonnie https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2530/eng@2025-09-26 9

page 9 of 12

[RW1] did not respond to the text. Having evaluated the evidence by the parties, the logical conclusion of the court was that, on a balance of probabilities the respondent terminated the employment of the claimant without a valid reason and without procedural fairness. The termination is held as unlawful and unfair. Whether the claimant was entitled to relief sought Claimant’s submissions 35. Compensation for unfair termination. Section 50 of the Employment Act states-"In determining a complaint or suit under this Act involving wrongful dismissal or unfair termination of the employment of an employee, the Employment and Labour Relations Court shall be guided by the provisions of section 49." Section 49 provides for compensation for unfair termination. The compensatory remedies are1[a] the wages which the employee would have earned had the employee been given the period ofnotice to which he was entitled under this Act or his contract of service; [b] where dismissal terminates the contract before the completion of any service upon which the employee's wages became due, the proportion of the wage due for the period of time for which the employee has worked; and any other loss consequent upon the dismissal and arising between the date of dismissal and the date of expiry of the period of notice referred to in paragraph [a] which the employee would have been entitled to by virtue of the contract; or [c] the equivalent of a number of months wages or salary not exceeding twelve months based on the gross monthly wage or salary of the employee at the time of dismissal." 36. On notice pay - the claimant had asked for 3 months yet it that was not in his contract of service. On this issue the respondent submitted that the claimant had conceded the notice under contract was of 1 month and not three months. In view of these submissions, the notice pay is awarded for 1 month gross salary in liue [payslip of September 2018] of Kshs. 153,111.60. 37. On compensation for unfair and wrongful dismissal- the court held the termination was unlawful and unfair. The criteria to apply in deciding on the quantum is section 49[4] of the Employment Act. The claimant had been in employment of the respondent for 14 years, he had no disciplinary record during service, the employer did not produce any relevant evidence that the claimant contributed to the termination and his social security was the basic NSSF. The employer treated the claimant with contempt and admitted to not having responded to the follow-up on the employment keeping the claimant in limbo and obviously in distress. Taking the foregoing into account the court finds and holds that this case merited maximum compensation of the 12 months gross salary which is awarded thus Kshs. 1,837,339.20. 38. Severance pay- the same is payable in termination through redundancy hence not available in the instant termination. The court rejected the invitation by the claimant to treat the claim as of service pay as submissions are not pleadings and a claim cannot be amended in the submissions. In any case the claimant was on NSSF as per the payslips and had not placed any evidence before the court to the contrary. The burden was on the claimant to prove that the deducted NSSF monies was not remitted by providing the a statement from the NSSF board. Section 35[5] &[6] of the Employment act states- "[5] https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2530/eng@2025-09-26 10

page 10 of 12

An employee whose contract of service has been terminated under subsection [1][c] shall be entitled to service pay for every year worked, the terms of which shall be fixed. [6] This section shall not apply where an employee is a member of— [a] a registered pension or provident fund scheme under the Retirement Benefits Act; [b] a gratuity or service pay scheme established under a collective agreement; [c] any other scheme established and operated by an employer whose terms are more favourable than those of the service pay scheme established under this section; and [d] the National Social Security Fund." Service pay is not available for an employee registered by the employer under the NSSF. The claim is disallowed. 39. On the annual leave allowance, the claimant had already proceeded on leave. The court found this was claim was an afterthought. 40. On the claim of unpaid salary, the claimant produced his payslip for September 2018. The respondent stated that the September salary was paid in October and that no salary was owed for October because he had already been terminated. The claimant filed a rejoinder but did not rebut these arguments. He also presented his Equity Bank statements showing salary deposits for August 2018, September 2018, and October 2018. The court found that the existence of salary arrears was not proven on the balance of probabilities. 41. Regarding the claim related to the loan, the claimant produced his NIC Bank statement indicating loan repayments up to August 2017. Check- ofi arrangements signed by Jacquelyne [the boss] on July 14, 2015, were also provided. The check- ofi letter was addressed to Jacquelyne as Human Resources Manager of the respondent by NIC Bank. The respondent admitted in defense that it was aware the claimant had obtained an unsecured loan, deducted monthly installments, and remitted the money to NIC Bank. However, the respondent further stated that, on the claimant' s instructions, it stopped remitting the loan deductions to NIC Bank Kenya, as the claimant provided an account at Equity Bank where his salary was now remitted. The respondent claimed it was neither a guarantor nor a party to the loan agreement and denied liability related to the loan [paragraphs 2. 11, 2. 2.11,2.12, and 2. 13 of the statement of defense]. The court established that the salary paid to the claimant at Equity Bank was Kshs. 75, 75568.40. 40, which was less than the net salary of Kshs. 110, 113. 42 [see the November 2017 payslip as an example]. The difierence of Kshs. 34545, represents the amount received in the NIC bank in 2017. The respondent's witness [RW1], in her statement, paragraph 12, admitted that the respondent deducted monthly instalments and remitted them to the bank. The court concluded that these loan deductions continued even after the salary payment account was changed to Equity Bank. The respondent simply retained the deducted money instead of remitting it to NIC Bank. The court finds that the claimant proved his case of deduction of the loan and non-remittance to the bank, and his claim for the deducted but unreleased funds, as this was a loan, is reasonable. Consequently, the claim for deducted and unremitted loan money is awarded at KShs. 651,754, 754 as sought. It is considered an unfair labor practice to deduct an employee's salary under checkofi and fail to remit it to the bank. The court declined the claim for general damages because the claimant did not take immediate steps to mitigate his losses after the breach; as an accountant, he was aware at all times that remittance was not being done. 42. On claim for medical deductions- the claimant did not say he was not covered for medical by the employer. There was no evidence of any medical claims borne by the claimant. The court believed the evidence of the respondent that the money deducted was a partial contribution to the medical cover for its employees. The claim is disallowed. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2530/eng@2025-09-26 11

page 11 of 12

43. On claim for general damages for legitimate expectation, the same was not substantiated. CONCLUSION 44. In the upshot the court allowed the claim. Judgment is entered for the claimant against the respondent as followsThe termination is declared as unlawful and unfair. a. Notice pay of 1 month salary in lieu Kshs. 153,111.60 b. Compensation for unlawful and unfair termination equivalent of 12 months' salary Kshs1,837,339.20. c. Unremitted deductions for loan with interest as at 30th October 2018 -Kshs. 651,754 /- d. Costs of the suit Interest on a,b,c and d above at court rates from date of judgment. 45. Stay of 30 days granted. 46. It is Ordered. DATED, SIGNED, AND DELIVERED IN OPEN COURT AT NAIROBI THIS 26TH DAY OF SEPTEMBER, 2025. J.W. KELI, JUDGE. In The Presence Of: Court Assistant: Otieno Claimant: Bwoigara Respondent: Ms. Kimiti h/b Makambo https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2530/eng@2025-09-26 12

page 12 of 12