Mwadzoya v United States International University – Africa & another

BETWEEN EUNICE MADZO MWADZOYA ........................................................... PETITIONER AND UNITED STATES INTERNATIONAL UNIVERSITY – AFRICA .... 1ST RESPONDENT MASTERCARD FOUNDATION ................................................ 2ND RESPONDENT JUDGMENT 1. The Petitioner alleges that the Respondents, vide letter dated 22nd June 2022, engaged her as a Program Ocer- Career Placement, on a three-year renewable contract. That she accepted a new role of Lead Transitions eective 1st September 2024, which was communicated vide letter dated 22nd November 2024. Thereafter, the role was extended vide letter dated 23rd June 2025 for two months, from 1st July 2025. That vide letter dated 3rd September 2025, the Respondents conrmed that the contract would not be renewed. The Petitioner termed it as premature and unlawful termination of her contract despite her diligence, dutiful and consistent service. She averred that prior to the engagement, she served the 1st Respondent as an Academic Advisor for six years, on permanent and pensionable terms, she resigned from this position in order to serve as the Program Ocer under the Mastercard Foundation Scholarships Program, which was to run for 10 years, subject to funding and satisfactory performance. 2. The Petitioner violation of her legitimate expectation on contention that her position was expected to last for ten years, given her performance and that there was sucient funding. She alleged that the oer inuenced her resignation from her permanent and pensionable role, expecting to serve the program for the partnership period scheduled to lapse on 31st August 2030. She maintained that having taken over the new role eective 1st September 2024, she expected that it would last for at least three years, renewable, as agreed upon by the Respondents. She reiterated that her services were terminated prematurely without any reason or notication and in the middle of a pending disciplinary inquiry against her. 3. The Petitioner alleged discrimination on ground that she was treated dierently from her colleagues in other Lead roles, whose contracts were aligned with the written agreement between Respondents and remain in service to date. 4. On constitutional violations, the Petitioner alleged that the two months’ renewal followed an nonexistent interview, which the Respondents alleged she underwent while she was on her maternity leave, from 15th May 2025 to 13th August 2025. She alleged that the same was expiring on 31st August 2025, on the same day her suspension was lapsing. She averred that there is no other Lead Role contract that was ever extended for only two months. She denies attending any interview. She maintained that it was a deliberate and orchestrated move to eliminate her from the Program without any valid reason. She further averred that she already lled the position she was purportedly lling on 1st September 2024 and served in that capacity for ten (10) months before the new oer dated 23rd June 2025 was made adding that if the same were in good faith, then it ought to have been for three years as her colleagues. 5. The Petitioner averred that she was compelled to attend questioning by the Mastercard Foundation’s Auditors (Deloitte, South Africa) and USIU Africa’s Auditors (PwC, Kenya). She averred that she https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2559/eng@2026-09-23 2

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attended the sessions despite evident harassment. She averred that while on maternity leave, access to her work systems was withdrawn, and was never restored until her eventual termination on 3rd September 2025. She added that upon her return from maternity leave, she was issued with a 19-day suspension letter, culminating in the termination of her services. She averred that she was not accorded chance to defend herself on the allegations over various scholars’ issues in the Program. She averred that the inhumane and degrading treatment has caused her to undergo serious psychological, mental and emotional torture that it was her belief that she was unfairly targeted and discriminated against contrary to Article 27 as read together with Articles 28 and 41 of the Constitution. 6. The Petitioner charactersed her suspension as irregular since it was not provided for in the 1st Respondent’s Human Resource Policy and Procedure Manual 2024 (HR Manual), and the letter dated 12th August 2025, failed to identify any specic concerns on her conduct. She stated that the same was malicious and she was denied fair administrative process. She alleged that the process was instigated by the 2nd Respondent’s threat to withdraw funds, thereby constraining the 1st Respondent to overlook its policy. That the action condemned her unheard, causing her signicant psychological and mental stress and severely injured her reputation. 7. The Petitioner alleged that the resultant stress caused her high blood pressure leading to her admission, inducement and augmentation on 14th May 2025. On 16th May 2025, the foetal heart rate was low, demonstrating foetal distress thus necessitating an emergency caesarian section to save both her and the baby. Consequent to the distress, her baby was admitted to the Neonatal Intensive Care Unit (NICU) for four days and later moved to the High Dependency Unit (HDU). She added that she had to attend counselling sessions at the Nairobi Hospital due to the psychological trauma. She alleged that the baby was denied exclusive breast feeding occasioned by the insucient milk she produced due to stress. She further alleged that despite consulting a specialist, her attempts to improve milk supply were unsuccessful. 8. The Petitioner reiterated that the denial of an opportunity to clear her name has signicantly damaged her reputation. She alleged that the Respondents had further denied her the investigation report. She alleged that her constitutional and labour right were violated by the discriminatory treatment, presumption of guilt, and predetermined termination of her services. She alleged that the Respondents had an ulterior motive to eliminate her from the program; and the two month’s extension of contract was meant to run her out of the program upon return from maternity leave. The Petitioner prays for: a. A declaration that the action of the Respondents and/or their ocers to foreclose the Petitioner’s right to fair hearing was unfair, unreasonable, irrational, illegal and made in abuse of power, mala des and in contravention of the Petitioner’s right to fair administrative action protected by Article 47 of the Constitution and the Fair Administrative Action Act. b. A declaration that the Respondents violated the petitioner’s right to a legitimate expectation of the renewal of her employment contract. c. A declaration that the termination of the Petitioner's employment and/or failure to renew the Petitioner’s employment contract was malicious, unprocedural, unfair, unlawful and wrongful contrary to the provisions of Articles 41 and 47 of the Constitution, Sections 41, 43 and 45 of the Employment Act and Section 4 (3) of the Fair Administrative Action Act. d. A declaration that the 1st Respondent treated the Petitioner in a degrading and discriminatory manner contrary to the provisions of Articles 27 and 28 of the Constitution by irregularly suspending her from work, denying her access to work systems without cause, harassing her https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2559/eng@2026-09-23 3

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while on maternity leave, treating her employment contract dierently from those of her colleagues in similar roles and eventually failing to renew her employment contract without cause and before the conclusion of the pending disciplinary process against the Petitioner. e. A declaration that the 1st Respondent breached the Petitioner's right to fair labour practices, the right to a fair disciplinary and administrative process and denied the Petitioner an opportunity to a fair hearing. f. An order that Petitioner be compensated by the Respondents as follows: g. i. One (1) month’s salary amounting to Kshs. 392,718.00 in lieu of notice of termination of the Employment Contract; ii. Contractual gratuity at 10% of the last annual salary amounting to Kshs. 471,261.60; and iii. Twelve (12) months’ earnings amounting to Kshs. 4,712,616.00 as damages for unfair termination of the Petitioner’s employment; iv. General damages for degrading and inhuman treatment, psychological torture, mental anguish and reputational injury. v. Applicable interest on the amounts in (i), (ii) and (iii) above from the date of judgment until payment in full. The costs of this Petition. 9. The 1st Respondent challenged the Petition vide its Replying Adavit sworn by Irene Ogutu, its Acting Director. Director Human Resources on 15th January 2026. She termed the Petition as misconceived, misguided and an abuse of court process as it raises purely contractual issues, with no constitutional implications. She stated that the dispute fall within the ambit of the Employment Act and institutional policies rather than Constitutional law. She stated that the constitutional approach undermined the administration of justice as it excludes the viva voce evidence applicable in claims proceedings. 10. Besides that, she acknowledged that the Petitioner was indeed engaged under permanent and pensionable terms for six years, before she voluntarily resigned to join the Mastercard Program for a xed term contract of three years. She stated that the Petitioner was aware that the contract would terminate by euxion of time and the Respondents were under no obligation to extend it. The aant denied the existence of legitimate expectation due to the unequivocal contractual terms. 11. On advice of counsel, she stated that no employer can be compelled to guarantee renewal of xed-term contract, as the same would negate the essence of xed term contracts. 12. On the issue of discrimination, the respondents contended that the contracts of all the other lead employees were personal and distinct to them, having been guided by their individual terms between them and the employer. She termed the claim as baseless and misconceived. She added that the Petitioner’s contract was extended by two months so as to avoid her term lapsing while she was on maternity leave. Thereafter. The Respondents received allegations of gross misconduct against her and thus, she was suspended with full benets to pave way for unhindered investigation. She stated that the Petitioner was informed of the suspension, the details and the fact that she would be called to assist with the inquiries where necessary. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2559/eng@2026-09-23 4

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13. The Petitioner averred that it was only reasonable to call in the Petitioner from maternity due to the gravity and sensitivity of the allegations. She added that the Petitioner’s absence would have materially compromised the integrity, completeness and credibility of the investigations. She stated that the Respondent exhibited utmost good faith as it put in measures to accommodate the Petitioner, including conducting the investigations at her convenience. She contended that the university’s position on non-renewal of contract was the same even before receipt of the allegations. She added that there was no need for a disciplinary hearing or further action upon the expiry of contract. On the legality of the suspension, she stated that it is an employer’s lawful right to allow for uninterrupted investigation by the concerned employee. She denied the claim that the same amounted to harassment and unfair labour practice. 14. She further deposed that there are no outstanding payments due to the Petitioner as she was paid all her contractual entitlements upon expiry of term. She added that the Petitioner was also issued with a certicate of service. She urged that the Petition be dismissed with costs for want of merit. 15. The 2nd Respondent opposed the Petition vide its Replying Adavit sworn by Ivy Mwai, its Acting Director, Scholars Program, on the 20th February 2026. She stated that save for the knowledge that the Petitioner was engaged as a Program ocer, the 2nd Respondent was not aware of the terms of the contract entered between the 1st Respondent and the Petitioner. She contended that the 2nd Respondent has in no way contravened the Petitioner’s constitutional rights or breached any of the provisions cited in the Petition. She denied the 2nd Respondent’s involvement in the termination. She added that there is no employer-employee relationship between the Petitioner and the 2nd Respondent therefore the Court lacked jurisdiction to grant reliefs against the 2nd Respondent. 16. The aant deponed that the contract between the Respondents is for a charity program that is managed exclusively by the 1st Respondent, and precluded the 2nd Respondent from any liability arising from contracts entered with third parties; including employment contracts. She accused the Petitioner of disregarding the terms of the contract terming the inclusion in the proceedings as malicious and in bad faith. She urged that the 2nd Respondent ought to be excluded from the proceedings. She stated that the alleged legitimate expectation could not have been created by the 2nd Respondent. 17. Responding to paragraphs 40(e), 44 and 50 of the Petition, the aant deposed that the 2nd Respondent received an anonymous whistleblower complaint regarding the running of the Program, which it raised with the 1st Respondent. That it was not involved in the investigative process, but the 1st Respondent engaged its auditors as independent auditors. On the allegation that the 2nd Respondent informed her of the termination, she deposed that the 2nd Respondent did not exercise any powers or authority over the 1st Respondent. The aant stated that the 2nd Respondent’s Executive Director visited the 1st Respondent and held various meetings which added that the same was a standard approach whenever a complaint was received from scholars. 18. In response to Paragraphs 54 and 55, the aant stated that the same was speculative and unsubstantiated as they are made from conjecture. She stated that the emails referred to at Paragraph 56 were only meant to reassure the scholars and did not include evidence that the Petitioner’s contract was not renewed because of the 2nd Respondent. She added that the engagement of independent investigators was due to the 2nd Respondent’s keenness on having the complaint investigated and the allegation of malice on the part of the 2nd Respondent is untrue, as it has no reason to perpetrate malice against the Petitioner with whom it had no legal, contractual or personal relationship. 19. The aant deponed that the assertion that the Petitioner was entitled to damages in the sum of Kshs. 5,576,595/= was unfounded, unsubstantiated and should not be granted as against the 2nd https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2559/eng@2026-09-23 5

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Respondent. She averred that the particulars of unconstitutionality and grounds for relief did not meet threshold for grant of reliefs for constitutional violations. She contended that the same has been proered as a constitutional petition to avert the obvious fact that the dispute was against the 1st Respondent for non-renewal of a xed term contract. She urged the court to dismiss the Petition with costs. 20. Additionally, thereto, the 2nd Respondent led an application dated 20th February 2026, seeking to be struck out from the Petition. The same was dispensed with and disallowed by this Court vide its Ruling of 27th March 2026. 21. In rejoinder, the Petitioner rebutted the Respondent’s positions through the Supplementary Adavit sworn by Eannes Ongus who deponed that he worked for the 1st Respondent between 17th June 2013 and 16th January 2026. He stated that during his tenure, he served in several positions including External Relations Assistant (2013), Acting Chief Manager, Fundraising (September 2018 – July 2020), Chief Manager, Development (August 2020 – August 2023), and Director, Advancement and Partnership (September 2023 – January 2026). He stated that his role as Director, Advancement and Partnership was to oversee the administration of the 2nd Respondent’s (Mastercard Foundation) grants, which included the Mastercard Foundation Scholars Program (the “Program”). He stated that he was part of the Co-Creation Committee that designed the Scholars Program at USIU-Africa, following his appointment by the then Vice Chancellor, Prof. Paul Zeleza. He added that the USIU-Africa cocreation team was led by Prof. Amos Njuguna, while the Mastercard Foundation co-creation team was led by Dr. Codou Diaw. 22. That the proposal and budget for the Program were later approved and signed o via an agreement between the Mastercard Foundation and USIU-Africa in July 2020. That he was appointed in July 2020 to the Scholars Program Oversight and Implementation Committee (the “SPOIC”), a program governance body mandated to ensure the successful implementation of the Mastercard Foundation Scholars Program at USIU-Africa as per Mastercard Foundation’s guidelines. That the SPOIC existed for the life of the Program at USIU-Africa with the key role of ensuring that the implementation of the Program strictly adhered to Mastercard Foundation guidelines, Contract for Services dated 30th June 2020 (hereinafter the “Contract for Services”), approved Program proposal and budget. 23. He averred that the initial proposal and approved budget of July 2020 considered the position of “Internship Coordinator” with responsibilities to coordinate the internship program for the scholars – attachments to the industry, community service, job placements, preparation of workshops and linkage to the African Careers Network and other opportunities. He added that the approved budget covered the years 3–9, FY2022/23 to FY2028/29, respectively. That the Internship Coordinator position changed to Programs Ocer – Careers and Placement in year 3 (FY2022/23), and the budget was approved until year 10 (FY2029/30). He conrmed that the Petitioner took up the position after resigning from her previous permanent and pensionable job with USIU-Africa. 24. The aant stated that he was aware that during year 5 of the Program implementation, USIU-Africa requested several key sta changes, including promotional roles which included Lead, Transitions, Lead, Finance, Lead, Selection and Recruitment, amongst others. That the changes resulted in the revised Scholars Program organogram and the key changes were discussed and approved by the Mastercard Foundation and later signed o through the year 5 Schedule C to the Contract for Services and approved budget. He deposed that he was equally aware that the new roles of Leads, Transition (a position which the Petitioner ascended to during her last promotion), were funded from interest earned from advance funds released to USIU-Africa by Mastercard Foundation. He stated that the https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2559/eng@2026-09-23 6

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positions were approved for an initial period of three years, renewable, and funds were made available for the initial three years, eective September 2024. 25. The aant stated that by the time the Petitioner’s contract was terminated/not renewed, she had served in the new role for 1 year, including the 2-month contract extension to August 2025. He stated that as the Director in charge of the Division to which the Program was reporting, he, wrote to the Ag. Director, Human Resources Ms. Irene Ogutu, with Vice Chancellor Prof. Mwenda Ntarangwi in copy, 22nd August 2025 advising that funding for the Lead roles and other roles within the Program that were due to lapse was available until August 2027, and that of the Program Director was approved for the duration of the partnership (10 years). He added that the advisory was ignored. 26. He stated that he was aware that two positions within the Program – that of Program Ocer, Careers and Placement, being held by Ms. Dolly Mwiti, and that of Program Administrator, being held by Ms. Selina Mwatua, were both renewed for at least one (1) year in the year 2026. He noted that those were among the roles that were approved during the year 5 program implementation by Mastercard Foundation and USIU-Africa and whose funds were available until August 2027. He added that both Ms. Mwiti and Ms. Mwatua were also suspended from work just like the Petitioner but were later cleared by the 1st Respondent and their contracts renewed. He stated that the Petitioner was never accorded similar treatment but was discontinued prematurely before investigations were concluded by the Respondents. He also conrmed that a decision aecting the Program operations and one which would impact the budget, like in the case of non- renewal/termination of the Petitioner’s contract, required consideration of the SPOIC and additional approval by the Mastercard Foundation. 27. He stated that a whistleblower sent an anonymous email to Mastercard Foundation and USIU leadership on 1st May 2025, raising allegations in relation to the scholars’ welfare at USIU-Africa. That following a directive by Mastercard Foundation, the Program team was suspended to pave the way for investigations. During a meeting of the USIU-Africa Management Board held on 23rd May 2025, the Vice Chancellor Prof. Mwenda Ntarangwi, informed members that given the loss of condence by Mastercard Foundation in the Program team, he was constrained to suspend the Program team. 28. He stated that the same was contrary to the 1st Respondent assertions that allegations of gross misconduct were received while the Petitioner was on maternity leave and that the Petitioner was informed of participation in investigations through the suspension letter. He reiterated that the allegation of gross misconduct was received on 1st May 2025 via a whistleblower email captured on the suspension letter way before the Petitioner went on maternity leave. He added that before the Petitioner was suspended for 19 days, she was already interrogated by the auditors/investigators of both Respondents, had already been locked out of the work systems and the contents of her suspension letter were false. That the suspension letter was a mere formality issued after the fact to avoid the embarrassment of being issued during maternity leave. He stated that the Minutes of the Management Board of 23rd May 2025 conrmed that all 19 suspension letters were ready and were to be issued by the close of business, while some had already been issued. 29. He deposed that the draft Terms of Reference (TORs) for private investigation needed to be prepared and feedback circulated by 3p.m. on the same day, 23rd May 2025. That a copy of the amended TORs circulated to members of the USIU-Africa Management Board through email by the University Director of Legal Services, Ms. Helen Ombima on 27th May 2025, showed that the investigations would target the integrity of employees of the Program as opposed to objectively investigating the issues raised by the scholars in the whistleblower email. He recalled being called by the Vice Chancellor to his oce, on 21st May 2025, and issued with a suspension letter as the Director in charge of the division where the Program was directly reporting to. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2559/eng@2026-09-23 7

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30. He stated that he was showed an email from the then Executive Director, Education and Transition, Mastercard Foundation, Ms. Tina Muparadzi, which highlighted four key actions for USIU-Africa that: the Program team was not to be allowed to continue managing the Program at USIU-Africa; scholars who were staying at Queens Hostel were to be transferred to Qwetu Hostels by 21st May 2025; that the Mastercard Foundation would suspend further disbursement to USIU-Africa; and that the Foundation would appoint an independent investigator to look into the issues raised by the Scholars. That all action areas were met by USIU-Africa in record time. He added that Mastercard Foundation suspended further disbursements for USIU-Africa, and Deloitte, South Africa, was appointed to investigate the scholars’ issues, scholars were relocated from Queens Hostels to Qwetu Hostels – Ruaraka without regard to the existing contractual obligations to Queens Hostels and the Program team members were all suspended and a caretaker team was appointed as conrmed by the minutes of the Management Board of 23rd May 2025. 31. He stated that the PwC Kenya Report, prepared on behalf of USIU-Africa, clearly captured that Mastercard Foundation indeed issued explicit directives and instructions to USIU-Africa, even at the expense of incurring nancial losses. He stated that the PwC Report at page 96 identied the Petitioner as Employee Number USIU023 and found liable for “conict of interest” without an opportunity to defend herself as required under the University HR Policy and Procedure Manual, 2024. He stated that this allegation could not be substantiated by USIU-Africa in his own disciplinary hearing, as it formed one of the grounds in his notice to show cause, but the 1st Respondent’s own Disciplinary Panel dismissed the charge and allegation. He deposed that had the Petitioner been accorded an opportunity to defend herself, she would have successfully challenged this allegation just like her other colleagues. 32. The aant disparaged the allegation by 1st Respondent that the Petitioner’s employment contract expired without renewal, stating that it was clear from the PwC Report and his own Disciplinary Report that the Petitioner was eliminated from the Program team merely for being related to a fellow member of sta. He added that the PwC Report eectively made a nding on the Petitioner without a fair hearing for the Petitioner, unlike other members of sta who had the benet of going through a full disciplinary process, with some (Ms. Dolly Mwiti and Ms. Selina Mwatua) successfully challenging the process. 33. He deposed that it was his belief that the Petitioner’s constitutional and labour rights were violated. He outlined the violations to be: failure to accord the Petitioner any hearing at all following her interrogation and suspension from work; termination of her services before the determination of the pending disciplinary action against her; denial of the right to a fair, lawful, reasonable and procedural disciplinary process; lack of justiable reasons for the nonrenewal of the Petitioner’s employment contract, violating her legitimate expectation; failure to provide any information setting out the criteria applied in arriving at the decision not to renew the Petitioner's employment contract; failure to reveal the identities of her accusers; exposure to unnecessary emotional distress during the antepartum and postpartum period, leading to birth complications and postnatal challenges in milk production for her baby. He termed the same as unnecessary and that they would have waited for the Petitioner to return to work, noting that the results of the investigations are yet to be fully disclosed. He stated that the violation of the Petitioner’s constitutional rights warranted the intervention of this Court through an appropriate award of the prayers sought in the Petition dated 7th November 2025. 34. The 1st Respondent responded through its Further Adavit sworn by Kasiki Mudachi-Egesa, its Director Human Resources. The deponent stated that the said Ongus was stranger to the proceedings and had not demonstrated any authority to swear the adavit on behalf of the Petitioner. She stated that the deposition ought to have been strictly within the deponent’s knowledge, but instead, he introduced substantive and contentious facts which ought to have been deposed to by the Petitioner. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2559/eng@2026-09-23 8

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She raised concerns on the authenticity of the documents produced noting that the source, custody and manner of acquisition had not been disclosed. The aant reiterated that the Petitioner's employment relationship with the Respondent was governed by the terms of contract. 35. The aant further deponed that the existence of donor funding, approved budgets, stang proposals, programme structures, organizational charts and stang costs did not create an automatic renewal of contract or guarantee the Petitioner continued occupation of the oce held. She averred that the availability of funds did not override the express contractual terms voluntarily accepted by the Petitioner. She added that the said Ongus was not the appointing authority or the custodian of the human resource function and therefore is not in a position to make any binding representation regarding renewal or extension of the Petitioner’s contract or assert any obligation over the university. She stated that the SPOIC did not have any authority over the Petitioner’s contract and no such evidence has been placed before this Court. 36. The denied the allegation that the Petitioner’s contract was terminated stating that no termination letter has been placed before the Court. She stated that the suspension was an interim administrative measure to facilitate investigations into complaints regarding the program and which did not in anyway alter the Petitioner’s contract’s expiry date. She stated that the expiry of contract extinguished the employer-employee relationship capable of sustaining disciplinary proceedings, thus, no disciplinary hearing was legally required thereafter. On alleged discrimination the aant stated that the same was inexistent as the employment contracts were distinct and personal in nature and the rights and obligations were governed by the terms applicable to each employee. 37. On the Petitioner’s questioning prior to suspension, the aant stated that the same was neither unusual nor unlawful. She stated that the management board’s minutes committee deliberations and internal reports exhibited by the Petitioner did not demonstrate that the university had predetermined the outcome of the investigation or earlier on resolved not to renew the contract. 38. The allegation that the Petitioner developed birth complications due to stress was termed as untrue. She stated that the Respondent only carried out its mandate and made reasonable arrangements to accommodate the Petitioner. She added that the allegation needed to be accompanied by strict medical evidence and expert proof which had not been produced, adding that the PwC report or other internal investigative reports do not alter the position that the Petitioner’s contract terminatedby euxion of time. She accused Ongus of non-disclosure of the basis upon which he retained or obtained possession of the documents produced after cessation of his employment or the authority to disclose the same in these proceedings. Submissions 39. Counsel for the Petitioner submitted: whether the Respondents violated the Petitioner’s right to a fair hearing; whether the 1st Respondent had any valid reason for terminating the Petitioner’s services; whether the 2nd Respondent inuenced the 1st Respondent’s decision-making; whether the Respondents subjected the Petitioner to emotional distress and inhuman treatment, and the available remedies in law; 40. On the rst issue, it was submitted that the 1st Respondent’s actions violated Clause 9.2.5 its Manual, which did not contemplate a suspension process to be conducted in the manner in which it was done to the Petitioner. It was submitted that there was no written statement was requested from the Petitioner contrary to the said clause. Counsel added that the Respondents had not formally communicated to the Petitioner the outcome of their investigations despite assuring her in the suspension letter dated 12th August 2025 that it would be done. Reliance was placed on the decision Joseph Kairu Mutahi v https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2559/eng@2026-09-23 9

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British Army Training Unit Kenya [2017] eKLR. Counsel submitted that the PwC showed evidenced that the anonymous complaint and/or the cause of the Petitioner’s suspension indeed resulted in the non-renewal of her contract. Submitting on the requirement of hearing, reliance was placed on the decision in Donald Odeke v Fidelity Security Ltd [2012] eKLR and the case of Fred Makori Ondari v The Management Committee of the Ministry of Works Sports Club [2013] eKLR. 41. On the second issue, reliance was placed on Sections 45 and 47(5) of the Employment Act and the decision in Pius Machafu Isindu v Lavington Security Guards Limited [2017] eKLR in submitting that the Petitioner was denied her the right to a lawful, reasonable and procedural disciplinary process. Reliance was placed on the decision in Charles Wanjala Watima v Nyali Golf & Country Club Ltd [2013] KEELRC 704 (KLR) to submit that the 1st Respondent lacked a justiable substantive reason to terminate the Petitioner’s services. In any event, the 1st Respondent jettisoned the Petitioner merely because there was a pending investigation against her. 42. On violation of the Petitioner’s Legitimate expectation, it was submitted that prior to her engagement by USIU-Africa and Mastercard, Foundation the Petitioner she served on permanent and pensionable terms for six (6) years before resigning to take up the new role. It was added that the information given to her, was to run for a period of at least ten (10) years, subject to funding and her satisfactory performance. It was submitted that the Petitioner’s last employment letter dated 23rd June 2025 unequivocally stipulated that the Petitioner’s contract would be subject to continued funding and satisfactory performance. It was submitted that having demonstrated that there was funding, and there been no claims of unsatisfactory performance by the employer; a legitimate expectation was created. 43. On discrimination reliance was placed on Gichuru v Package Insurance Brokers Ltd [2021] KESC 12 (KLR) to submitted that the Report made a nding on the Petitioner without a fair hearing unlike other members of sta who went through a full disciplinary process, with some (Ms. Dolly Mwiti and Ms. Selina Mwatua) having their contracts renewed. It was submitted that the 1st Respondent failed to adduce any evidence setting out the criteria applied in arriving at the decision not to renew the Petitioner’s contract when it admitted that similar roles had been renewed for 3 years based on terms which were personal to those specic roles. The 1st Respondent was accused of failure to justify the dierential treatment of the Petitioner which was outright discriminatory and contrary to Article 27 of the Constitution. The Court was invited to be guided by the decision in Gichuru v Package Insurance Brokers Ltd (Supra) in awarding the Petitioner Kshs. 5,000,000.00 as damages for discrimination and degrading treatment. 44. On the third issue, it was submitted that the 2nd Respondent acted in contravention of Article 28 of the Constitution by how it treated her during her postpartum period. As such, she seeks declaratory reliefs from this Court in addition to the prayer for compensation by way of general damages for the degrading and inhuman treatment and mental anguish caused by the 2nd Respondent’s agents. It was submitted that due to its eective exercise of control and direction over the Petitioner’s work, including supervision, reporting lines, and dictating performance expectations, a de facto employment relationship or, at the very least, a relationship of economic dependency akin to employment was created with the 2nd Respondent. it was therefore argued that the Petitioner needed not establish a strict employer-employee relationship to bring such constitutional claims. Reliance was placed on the decision in Ruwa & 2 others v Secretary, Independent Electoral and Boundaries Commission & 9 others (Civil Appeal 9 of 2013) [2016] KECA 371 (KLR). 45. On the fourth issue, it was submitted that the Respondents violated the Petitioner's right to inherent dignity and fair labour practices by subjecting her to unnecessary emotional distress and repeated interrogation before she proceeded on maternity leave and while she was away on maternity leave, https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2559/eng@2026-09-23 10

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recuperating from surgery, and thereafter ending her contract and abandoning the disciplinary proceedings before she could defend herself. This Court was therefore urged to grant the reliefs sought in the Petition. 46. The 1st Respondent submitted on: whether the Petitioner had a legitimate expectation that her xed term contract would be renewed; whether the Respondent’s decision not to renew the Petitioner’s contract amounted to unfair and unlawful termination, discrimination or unfair labour practice; and whether the Petitioner is entitled to the reliefs sought in the Petition. 47. On the rst issue, reliance was placed on Section 10(3c) and Section 35 of the Employment Act to argue that the law on xed term contracts is well settled, and parties are bound by terms of their contracts. Counsel submitted that the Petitioner voluntarily resigned from her pensionable job to take up the xed term contract fully aware of the terms. Reliance was placed on the decision in Registered Trustees of the Presbyterian Church of East Africa & another v Ruth Gathoni Ngotho-Kariuki among other cases to submit that the Petitioner failed to demonstrate any legal, contractual or statutory basis giving rise to legitimate expectation that the contract would be renewed. 48. On the second issue, it was submitted that the Provision of Section 45(2) of the Employment Act were not applicable as the Petitioner’s employment was not terminated but it ended automatically through euxion of time. It was argued that the suspension neither extended nor altered the expiry date of the contract. Counsel urged that no disciplinary proceedings could be sustained after cessation of the employer-employee relationship. 49. On the third issue, it was submitted that the reliefs sought were not warranted as the petition falls short of the threshold of a constitutional petition as it concerns nothing more than an ordinary employment dispute. Reliance was placed on the decision in Communication Commission of Kenya & 5 others v Royal Media Services Limited & 5 others. On discrimination, it was submitted that the Petitioner failed to demonstrate any dierential treatment or that employees under similar contractual arrangements received more favourable treatment. Counsel urged that the Petitioner had not demonstrated any violation of her constitutional or statutory rights capable of warranting the reliefs sought. Counsel added that the Petitioner had already been paid all lawful dues arising from the contract including gratuity and accrued leave days and thus any award would amount to unjust enrichment at the 1st Respondent’s expense. The Court was urged to dismiss the Petition with costs. 50. The 2nd Respondent whether there exists an employer-employee relationship between the Petitioner and the 2nd Respondent; whether clause 2.05 as read with 6.03 of the contract for services insulated the 2nd Respondent from any liability arising out of the 1st Respondent’s employment arrangements with third parties, including the Petitioner; whether the reliefs sought can be granted as against the 2nd Respondent; and who should bear the costs of the Petition. 51. On the rst issue, reliance was placed on the denition of employer and employee and the constituent elements of a contract under Section 2 and Sections 9 and 10 of the Employment Act respectively. Reliance was also placed on the case of Arisa v Kipkebe Limited [2024] KEELRC 1232 (KLR) and the decision in Samuel Wambugu Ndirangu v 2NK Sacco Limited [2019] KEELRC 2546 (KLR) where Courts held that for employment relationship to exist, there is need for remuneration and exercise of control. It was submitted that the application of the non-de guerre control test remain the cornerstone of the enquiry herein. Further reliance is placed on the decision in Umbertoh Daniel Nungari v Wildebeest Camp & Travels Limited [2019] KEELRC 1563 (KLR). It was submitted that the letter of oer dated 23rd June 2025 between the Petitioner and the 1st Respondent dened the operational parameters and corroborated the 2nd Respondent’s position. Counsel added that had the intention of the parties been for the 2nd Respondent to be considered an employer, the same would https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2559/eng@2026-09-23 11

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have been worded in the letter of oer. Reliance was placed on the decision in Kamurasi v Absa Bank Kenya PLC & another [2023] KEELRC 3229 (KLR). 52. Counsel submitted that the Petitioner was not unfairly terminated and the Court was cautioned against inferring a longer term than the period expressly contained in the letter of oer. Reliance was placed on the decision in Trocaire v Catherine Wambui Karuno [2018] LECA 769 (KLR). 53. On violation of the Petitioner’s legitimate expectation, it was submitted that if the intention of parties was for the Petitioner to last for the duration of the partnership, then it would have been easier to join her contract and the contract between the Respondents. It was added that the mere existence of funds or absence of disciplinary action did not convert the xed term contract into an indenite one. Reliance was placed on the decision in Transparency International – Kenya v Omondi [2023] KECA 174 (KLR) and Okore v LVCT Health [2026] KEELRC 805 (KLR) where the Court held that legitimate expectation cannot override the express terms of a xed term contract. In submitting that conduct of the 2nd Respondent did not elevate it into an employer, reliance was placed on the decision in Cherogony v African Rural Agricultural Credit Association & another [2022] KEELRC 14645 (KLR). 54. On the second issue, it was submitted that the clauses formed deliberate arms-length allocation of risks and responsibilities. It was submitted that where a clause is one to exclude liability, it must be unambiguous and in such a contract between the Respondents, must be construed contra preferentem. Reliance was placed on the decision in Securicor Courier (K) Ltd v Benson David Onyango & another [2008] KECA 349 (KLR). 55. On the third issue, it was submitted that no relief is lawfully available against the 2nd Respondent. On costs, it was submitted that having been unjustly dragged to Court, that the 2nd Respondent was entitled to costs. Analysis 56. The issues for determination are: whether there existed a legitimate expectation for the renewal of contract; whether the Petitioner’s rights to fair labour practices were violated; whether the 2nd Respondent was properly joined in the proceedings; and whether the Petitioner is entitled to the reliefs sought. Violation of rights and legitimate expectation 57. To better understand the issued at hand, it is important to evaluate the circumstances leading to these proceedings. An excerpt of the the letter dated 22nd November 2024, reads: “ REF: Promotion Letter. I am pleased to inform you that you have been promoted to the position of Lead, Transitions for the Mastercard Foundation Scholars Program through United States International University Africa from 1st September 2024. … All other terms and conditions of your contract of employment remain unchanged…” 58. The Petitioner contends that the Respondent through a calculated move sent her a letter talking of an interview, which she claims she never attended, oered her a position of Lead. An excerpt of the letter dated 23rd June 2025 reads: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2559/eng@2026-09-23 12

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RE: Lettr of Oer Following your successful interview, the University is pleased to oer you a xed term contract in the position of Lead, Transitions for the Mastercard Foundation Scholars Program through the United States International University Africa. This is a two (2) month contract, subject to continued project funding and individual performance, commencing 1st July 2025 and unless earlier terminated under the provisions of the termination clause below continue up to and including 31st August 2025 when it shall lapse automatically the university will be under no obligation to hire you for a further period…” 59. In answering the issue on legitimate expectation, the court is guided by the standard established by the Supreme Court in Kenya Revenue Authority v Export Trading Company Ltd [2022] KESC 31 (KLR) where it held that: 50. In the 4th Edition, Vol 1 (1) At page 151, paragraph 81 of the Halsbury’s Laws of England, legitimate expectation is described as follows: “ A person may have a legitimate expectation of being treated in a certain way by an administrative authority even though he has no legal right in private law to receive such treatment. The expectation may arise either from a representation or promise made by authority, including an implied representation, or from consistent past practice”. 60. 51. Further according to De Smith Woolf & Jowell, “Judicial Review of Administrative Action” 6th Edn Sweet & Maxwell page 609;“A legitimate expectation arises where a person responsible for taking a decision has induced in someone a reasonable expectation that he will receive or retain a benet of advantage.” 52. As can be discerned from these two denitions, legitimate expectation may take many forms. It may take the form of an expectation to succeed in a request placed before the decision maker or it may take the objective form that a party may legitimately expect that, before a decision that may be prejudicial is taken, one shall be aorded a hearing. 53. Respectfully, we take the view that the question of whether a legitimate expectation arose is more than a factual question. It is not merely conned to whether an expectation exists in the mind of an aggrieved party, but whether viewed objectively, such expectation is in a legal sense, legitimate.” Emphasis supplied. Similarly, the concept of legitimate expectation was explained in the case of Schmidt and Another v. Secretary of State for Home Aairs [1968 S. No. 4261] [1969] 2 Ch. 149 as hereunder: “ The speeches in Ridge v. Baldwin [1964] A.C. 40 show that an administrative body may, in a proper case, be bound to give a person who is aected by their decision an opportunity of making representations. It all depends on whether he has some right or interest, or, I would add, some legitimate expectation, of which it would not be fair to deprive him without hearing what he has to say. Thus in In re H.K. (An Infant) [1967] 2 Q.B. 617 a Commonwealth citizen had a right to be admitted to this country if he was (as he claimed to be) under the age of 16. The immigration ocers were not satised that he was under 16 https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2559/eng@2026-09-23 13

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and refused him admission. Lord Parker C.J., at p. 630, held that, even if they were acting in an administrative capacity, they were under a duty to act fairly - and that meant that they should give the immigrant an opportunity of satisfying them that he was under 16.” 61. The concept is further expounded in Halsbury's Laws of England Judicial Review (Volume 61A (2023)) 2. Substantive Grounds for Judicial Review (4) Legitimate Expectation as follows: “ A person may have a legitimate expectation of being treated in a certain way by an administrative authority even though there is no other legal basis upon which he could claim such treatment1. The expectation may arise either from a representation or promise made by the authority2, including an implied representation3, or from consistent past practice4 or policy5. In all instances the expectation arises by reason of the conduct of the decisionmaker6, and is protected by the courts on the basis that principles of fairness, predictability and certainty in administration should not be disregarded and that a legitimate expectation should not be disappointed7.” 62. The mystery that needs unravelling, is the reason behind the issuance of the oer letter dated 23rd June 2025 given that the Petitioner was already holding the position. While the Petitioner question the letter, the Respondent on its part has not produced any evidence in support of the alleged interview or invitation sent to the Petitioner securing her attendance. Meanwhile, the Petitioner, through her Supplementary Adavit produced the Key Sta Change Request from the 1st Respondent making propositions on new roles to the 2nd Respondent, and which, at page 3, appearing at page 371 of the Petitioner’s bundle, indicates that the Lead Position should be for three years. Evidence of the adoption process undertaken by the 1st and 2nd Respondent’s representatives leading to the execution of the Schedule C to the Contract for Services was also availed. It is therefore imminent that the intention of the parties was for the Lead position to run for a three-year period from 1st September 2024. 63. Notably, the promotional letter was authored shortly after execution of Schedule C which occurred between 5th and 7th November 2024. Other than claiming that the deponent lacked the authority to produce the evidence, nothing was placed before this Court to show that the same were condential or that the aant was barred from producing it. The veracity of the same has also not been rebutted suciently. Relatedly, the evidence was accompanied by relevant certicates of electronic evidence considered with Section 106B(4) of the Evidence Act. Evidence was thus properly produced before this Court. Consequently, the court that the Petitioner reasonably expected that she would remain in employment at least three years. However, no evidence was led to prove that there was a legitimate expectation that the contract would be continuously renewed until the 10th year. 64. On violation of rights, the Petitioner’s argument is that she was targeted and granted a two months contract calculatedly to get rid of her. From the above reproduced excerpt of the letter dated 22nd November 2024, and examination of the Respondents’ intention while creating the Lead position, the court is not convinced by the 1st Respondent’s explanation that the 2-month contract was out of grace and humanity. The said letter did not provide for the expiry date and this being a completely dierent role, the same could not have been said to have been running within the period of the previous role. At the very least, what the 1st Respondent created was a month to month contract governed by the provisions of the Employment Act. Further the same could be construed to mean that the contract would equally be for a three-year term, renewable subject to the conditions therein. 65. Changing the terms therefore to a two-month contract would require the Petitioner’s involvement. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2559/eng@2026-09-23 14

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66. Section 10 (5) of the Employment Act provides for alteration of terms of an employee’s contract as follows: (5) Where any matter stipulated in subsection (1) changes, the employer shall, in consultation with the employee, revise the contract to reect the change and notify the employee of the change in writing. 67. Despite stating that an interview was conducted, which Petitioner denied, there were no minutes to prove that there was indeed an interview that took place; bearing in mind that the Petitioner was already on maternity leave. It is also unclear how the 1st Respondent resorted to undertaking interviews while at the same time, the Petitioner was undergoing investigation by the Respondents’ auditors. The only evidence related to one meeting between the auditors and the Petitioner; which she availed herself for as evidenced by pages 53-56 of the Petitioner’s bundle. 68. In the court’s view, the only logical explanation of the alleged renewal would be to cure the fact that the contract was open ended and the Petitioner was a threat that needed handling. An opportunity arose for the 1st Respondent to milk the ambiguity in the promotional letter. The courts persuaded that this was a clever way to do away with the Petitioner without any legal consequences. The wording of the letter itself refers to a new position rather than renewal of an existent contract one. 69. In Ian Edwards v Bytes Technology Group Kenya Ltd [2018] KECA 428 (KLR) the Court of Appeal noted that: “ Even applying the contra proferentem rule, a clause in a contract considered to be ambiguous should be interpreted against the interests of the party that drafted it, in this case the respondent.” 70. Similarly, Jill Poole, in Textbook on Contract Law, 13th Ed; at page 86 states: “ … However, it is equally clear that where a court can resort to clear commercial practice or to previous dealings between parties in order to ascertain the meaning of a particular contractual expression, it will do so, thereby giving eect to what must have been the ‘obvious’ intentions of the parties…” 71. The court is of the view that the Respondent’s action amounted to a passive termination and an unlawful variation of the Petitioner’s employment terms. I say so paying regard to page 409 of the Petitioner’s bundle at paragraph 12 under the Recommendation and action points, from the Special Management Board Meeting held on 23rd May 2025, which stated: “ 12. 72. All suspension letters to be issued by close of business on 23 May 2025. Some were issued others were pending.” Evaluating this action plan as against the Petitioner’s suspension letter, it is notable that the letter was dated 12th August 2025 and the suspension was to begin on 13th August 2025. The Petitioner informed this Court that her maternity lapsed on the said 13th August 2025. In the body of the said letter, under the conditions of suspension, it is indicated that: “ During this period of suspension, your email account and computer access will be suspended.” https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2559/eng@2026-09-23 15

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73. Be that as it may, at page 56 of her bundle, vide a WhatsApp text of July 16, 2025 to a number +27724387248, from audit rm Deloitte, the Petitioner informed the auditor that: “ Hello, My work account is locked so I am not able to join the meeting on Teams. Sorry, I just realized this. Could we do a zoom meeting instead?” 74. The foregoing leaves no doubt that the Petitioner’s claim that she was denied access to her computer and the work system while she was on maternity. Tying all these together, it is surmisable that the Petitioner was suspended way before the actual letter was availed; and it was delayed purposely to keep the petitioner away until the predetermined expiry of her contract. These circumstances clearly reveal the intention of the letter dated 23rd June 2025. 75. Signicantly, the 1st Respondent not only unlawfully varied the Petitioner’s terms, employment but equally breached Step V of clause 9.2.5 of it’s Policy on suspension which provides for the maximum period of suspension to be 30 days. Likewise, there was no indication that there was any extension sought to facilitate any incomplete investigation to warrant the prolonged suspension. The court nds that the Respondent’s action amounted to unfair labour practice and in violation of the Petitioner’s right to fair administrative action. 76. The right to work is a sacrosanct right protected not only by legislation but also through International Conventions Kenya is signatory to, specically Article 6 of the International Covenant on Economic, Social and Cultural Rights, which states as follows: “ The States Parties to the present Covenant recognize the right to work, which includes the right of everyone to the opportunity to gain his living by work which he freely chooses or accepts, and will take appropriate steps to safeguard this right.” 77. The scope of ‘unfair labour practice’ was highlighted by the Supreme Court in Kenya Ports Authority v Munyao & 4 others (Petition E008 of 2023) [2023] KESC 112 (KLR) (Civ) (28 December 2023) (Judgment) where it held as follows: “ 55. 78. From the above denition unfair labour practice encompasses all conduct prior to, in the course of employment, during and after termination of employment. The provisions of article 41 therefore encompass the full spectrum of labour practices. The provisions of article 41 are borne from the realization that employment and/or right to work is a human right. The right is also linked to other rights in the bill of rights more so the protection of life and the dignity of a person. The right is therefore a principle with legal obligations. The Petitioner argued that the denial of a hearing denied an opportunity to clear her name and therefore ruining her reputation. On the issue, I borrow from the decision in JMK v MWM & another [2015] KECA 524 (KLR) where the Court cited authorities on importance of reputation as follows: On the value and importance of reputation, it may be apt to digress a little and let William Shakespeare speak from the grave. In Othello, Act III, Scene 3, the bard states through Iago: “ Good name in man and woman, my dear lord, is the immediate jewel of their souls. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2559/eng@2026-09-23 16

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Who steals my purse steals trash; ‘tis something, nothing; ‘Twas mine, ‘tis his, and has been slave to thousands; But he that lches from me my good name Robs me of that which not enriches him, And makes me poor indeed.” And in Richard II, Act I, Scene 1, he proclaims through Thomas Mowbray: “ The purest treasure mortal times aord Is spotless reputation; that way, Men are but gilded loam or painted clay. A jewel in a ten-times-barr’d-up chest Is a bold spirit in a loyal breast. Mine honour is my life, both grow in one; Take honour from me and my life is done.” The value a person’s reputation is not a concern of poets and playwrights alone. The Courts in various jurisdictions have underscored the value of reputation, particularly in the context of defamation actions. Thus in Rosenblatt v Baer (1966) 382(US) 75 at 92, Justice Stewart of the US Supreme Court, stated: “ The right of a man to the protection of his own reputation from unjustied invasion and wrongful hurt reects no more than our basic concept of the essential dignity and worth of every human being - a concept at the root of any decent system of ordered liberty. The protection of private personality, like the protection of life itself, is left primarily to the individual States under the Ninth and Tenth Amendments. But this does not mean that the right is entitled to any less recognition by this Court as a basic of our constitutional system.” In Canada the, Cory, J. expressed similar views in Hill v Church of Scientology [1991] 126 DLR 129: “ Democracy has always recognized and cherished the fundamental importance of an individual. That importance must, in turn, be based upon the good repute of a person. It is that good repute which enhances an individual’s sense of worth and value. False allegations can so very quickly and completely destroy a good reputation. A reputation tarnished by libel can seldom regain its former lustre. A democratic society, therefore, has an interest in ensuring that its members can enjoy and protect their good reputation so long as it is merited.” Lastly in the UK, Lord Nicholls had the following to say in Reynolds v. Times Newspapers Ltd [1999] 4 All ER 609: “ Reputation is an integral and important part of the dignity of the individual. It also forms the basis of many decisions in a democratic society, which are fundamental to its well-being: whom to employ or work for, whom to promote, whom to do business with or to vote for. Once besmirched by an unfounded allegation in a national newspaper, a reputation can be damaged forever, especially if there is no opportunity to vindicate one’s reputation.” Having carefully considered this appeal, we are satised that the appellant ought to have been aorded an opportunity to be heard before he was condemned as a perpetrator of sexual harassment. We are equally satised that in the particular circumstances of this appeal, the industrial court ought to have reviewed and set aside its judgment dated 30th May 2014 to aord the appellant an opportunity to be heard. 79. From the foregoing the court nds that the Respondent’s actions of altering the terms of Petitioner’s contract in order to deny her an opportunity to be heard, infringed her right to fair labour practices in violation of Article 41 of the constitution of Kenya. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2559/eng@2026-09-23 17

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80. On the allegation of harassment leading to distress and developing complications, the court nds that the same was not proved as neither medical reports to prove the allegations nor other records expert witness was called. 81. Concerning discrimination it is trite law that the provisions of Article 27 of the Constitution and Section 5 of the Employment Act. Prohibit unjustiable direct and indirect discrimination as follows: 27. 82. Equality and freedom from discrimination. (1) Every person is equal before the law and has the right to equal protection and equal benet of the law. (2) Equality includes the full and equal enjoyment of all rights and fundamental freedoms. (3) Women and men have the right to equal treatment, including the right to equal opportunities in political, economic, cultural and social spheres. (4) The State shall not discriminate directly or indirectly against any person on any ground, including race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth. (5) A person shall not discriminate directly or indirectly against another person on any of the grounds specied or contemplated in clause (4). Similarly, Section 5 of the Employment Act provides that; 5. Discrimination in employment (1) It shall be the duty of the Minister, labour ocers and the Industrial Court— (a) to promote equality of opportunity in employment in order to eliminate discrimination in employment; and (b) to promote and guarantee equality of opportunity for a person who is a migrant worker or a member of the family of the migrant worker, lawfully within Kenya. (2) An employer shall promote equal opportunity in employment and strive to eliminate discrimination in any employment policy or practice. (3) No employer shall discriminate directly or indirectly, against an employee or prospective employee or harass an employee or prospective employee— (a) on grounds of race, colour, sex, language, religion, political or other opinion, nationality, ethnic or social origin, disability, pregnancy, mental status or HIV status; https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2559/eng@2026-09-23 18

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(b) (4) in respect of recruitment, training, promotion, terms and conditions of employment, termination of employment or other matters arising out of the employment. It is not discrimination to— (a) take armative action measurers consistent with the promotion of equality or the elimination of discrimination in the workplace; (b) distinguish, exclude or prefer any person on the basis of an inherent requirement of a job; (c) employ a citizen in accordance with the national employment policy; or (d) restrict access to limited categories of employment where it is necessary in the interest of State security. (5) An employer shall pay his employees equal remuneration for work of equal value. (6) An employer who contravenes the provision of the section commits an oence. (7) In any proceedings where a contravention of this section is alleged, the employer shall bear the burden of proving that the discrimination did not take place as alleged, and that the discriminatory act or omission is not based on any of the grounds specied in this section. emphasis supplied. Although section 5(7) of the Employment Act imposes the burden to disprove allegations of discrimination on the employer, the burden of prove does not shift automatically. The employee must in the rst instance establish a prima facie case of discrimination for the burden of proof to shift to the employer. See Gichuru v Package Insurance Brokers Ltd (2021) KESC 12 (KLR) were the court addressed the import of section 5(7) of the Employment Act as follows: “ This however does not automatically shift the burden of proof in cases of discrimination against an employee to the employer. According to section 5(7) of the Act, an employer alleged to have engaged in a discriminatory practice must give reasons for taking certain actions against the employee…” 83. The foregoing is further fortied by the Supreme Court decision in Samson Gwer & 5 others v Kenya Medical Research Institute & 3 others [2020] eKLR where the court held as follows: “ (51) In the foregoing context, it is clear to us that the petitioners, in the instant case, bore the overriding obligation to lay substantial material before the Court, in discharge of the evidential burden establishing their treatment at the hands of 1st respondent as unconstitutional. Only with this threshold transcended, would the burden fall to 1st respondent to prove the contrary. In the light of the turn of events at both of the Superior Courts below, it is clear to us that, by no means, did the burden of proof shift to 1st respondent.” https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2559/eng@2026-09-23 19

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84. The Petitioner claimed that the Respondents discriminated against her by not granting her an opportunity to defend herself to retain her position as was the case with her two colleagues. Other than stating as much, no evidence was produced to show that there was distinct preferential treatment. From the foregoing and the material before this Court, the court is not persuaded that the Petitioner has established a prima facie case for discrimination. The claim in the courts view is without merit. In Judicial Service Commission v Shollei & another [2014] KECA 334 (KLR) the Court of Appeal held: 102. 85. I do not accept the thesis that bias is established merely by the seriousness or the stridentness of the allegations. What is required is proof by evidence, the burden being borne by he or she that alleges. It is not dicult to see what mischief would arise were courts to hold that seriousness of allegations, as opposed to their proof, is the proper basis for apprehending bias. Such apprehension, in my respectful view, is regrettable, not reasonable. On denial of the right to information, the Court is guided by Section 8 of the Access to Information Act in nding that the Petitioner did not produce any request for information to prove his claim as required by law: Under Section 8 of the Access to Information Act, (1) An application to access information shall be made in writing in English or Kiswahili and the applicant shall provide details and sucient particulars for the public ocer or any other ocial to understand what information is being requested. (2) Where an applicant is unable to make a written request for access to information in accordance with subsection (1) because of illiteracy or disability, the information ocer shall take the necessary steps to ensure that the applicant makes a request in manner that meets their needs. (3) The information ocer shall reduce to writing, in a prescribed form the request made under subsection (2) and the information ocer shall then furnish the applicant with a copy of the written request. (4) A public entity may prescribe a form for making an application to access information, but any such form shall not be such as to unreasonably delay requests or place an undue burden upon applicants and no application may be rejected on the ground only that the applicant has not used the prescribed form. Nothing turns on this issue. 86. Concerning joinder of the 2nd respondent, the 2nd Respondent’s argued that it should not has been enjoined as the Petitioner had no have any claim against it and it is not involved in the control or management of the 1st Respondent’s employees. Clause 2.05 of the Partnership Agreement between the Respondents states: “ “ 2. 05 Contractual commitments with Third Parties The Foundation shall not be liable for any contractual commitments entered into by the Organization with any third party for the performance of the services.” https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2559/eng@2026-09-23 20

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87. It is thus clear that the partie’s intention was clearly to exclude the 2nd Respondent from the management of the functions of the 1st Respondent in service delivery and shield the 2nd Respondent from any liability therefrom. 88. Signicantly, Section 2 of the Employment Act denes an employer as follows: “ employer" means any person, public body, rm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, rm, corporation or company; 89. From the record, it is clear that the Respondents agreed on the terms of engagement and the 1st Respondent only consulted the 2nd Respondent on matters touching on nances. This is evidenced by the document appearing from page 369 of the Petitioner’s bundle which indicates the accountability process on matters involving funds disbursed by the 2nd Respondent. There was no employment relationship between the Petitioner and the 2nd Respondent and no such link has been suciently established by the Petitioner. Moreover, the Respondents’ contract contains an indemnity clause under clause 6.03. The 2nd Respondent ought not have been enjoined in these proceedings. This nding is fortied by the court of Appeal decision in National Bank of Kenya Ltd vs. Pipe Plastic Samkolit (K) Ltd (2002) 2 E.A. 503, (2011) eKLR where the court held thus: “ A court of law cannot rewrite a contract between the parties. The parties are bound by the terms of their contract, unless coercion, fraud or undue inuence are pleaded and proved.” whether the Petitioner is entitled to the reliefs sought 90. On quantum of damages for constitutional violation. The decision in John Gakuo & Timothy Moki Kingondu v County Government of Nairobi, Governor, Nairobi City County & Governor, Nairobi City County (Civil Appeal 201 of 2016) [2018] KECA 462 (KLR) (Civ) (13 July 2018) (Judgment) is instructive, where the court held; “ We have come to the conclusion that the appellants were entitled to compensation for violation of their right to fair administrative action and not under the Employment Act as the learned judge proceeded. We therefore set aside the award of Kshs 904,448.00 and substitute therefore an award of Kshs 1,500,000.00 to each appellant as damages for violation of their right to fair administrative action.” 91. The 1st Respondent at page 16 and 17 of its Response has provided a computation of nal dues and proof of payment of the gratuity. The claim for gratuity is therefore unmerited. 92. On pay in lieu of notice and compensation for unfair termination, no evidence has been led to prove that the Petitioner was unfairly terminated from employment and therefore the same are unmerited. In conclusion, judgment is entered infavour of the petitioner against the 1st respondent in the following terms: a. Declaration that the 1st respondent violated the petitioner’s right to fair labour practices. b. General damages in the sum of Kshs.500,000.00 c. Costs of the suit at ½ scale. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI ON THIS 23RD SEPTEMBER, 2026 https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2559/eng@2026-09-23 21

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DR. JACOB GAKERI JUDGE ORDER In view of the declaration of measures restricting court operations due to the COVID-19 pandemic and in light of the directions issued by His Lordship, the Chief Justice on 15th March 2020 and subsequent directions of 21st April 2020 that judgments and rulings shall be delivered through video conferencing or via email. They have waived compliance with Order 21 Rule 1 of the Civil Procedure Rules, which requires that all judgments and rulings be pronounced in open court. In permitting this course, this court has been guided by Article 159(2)(d) of the Constitution which requires the court to eschew undue technicalities in delivering justice, the right of access to justice guaranteed to every person under Article 48 of the Constitution and the provisions of Section 1B of the Civil Procedure Act (Chapter 21 of the Laws of Kenya) which impose on this court the duty of the court, inter alia, to use suitable technology to enhance the overriding objective which is to facilitate just, expeditious, proportionate and aordable resolution of civil disputes. DR. JACOB GAKERI JUDGE ELRC NAIROBI – PET E232 OF 2025 0 https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2559/eng@2026-09-23 22

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