Joy Kwamboka v Benjamin Nzei T/A Nzei & Company Advocates

d. Accrued leave days being Kshs. 63,000 Claimant’s Case 2 The Claimant avers that she was employed by the Respondent as an Associate Advocate on 6 th June 2022, on a monthly salary of Kshs. 55,000, payable on or before the 10th day of every subsequent month. 3 She avers that the Respondent progressively reviewed her salary upwards, with increments on 23rd December 2022 to Kshs. 65,000, on 3rd May to Kshs. 70,000, on 6th October 2023 to Kshs. 80,000, and finally on 6th November 2023 to Kshs. 90,000. 4 The Claimant states that it was agreed between her and the Respondent that her duties as an Associate Advocate would include attending court to take directions on matters, conducting hearings, drafting legal documents including pleadings, submissions and agreements, engaging in out of court negotiations, and managing support staff to ensure that each person performed their duties. 5 It is the Claimant’s case that she discharged these duties with utmost diligence and hardwork, and even settled several matters out of court on behalf of the Respondent's Page 2 of 33

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firm, and that at all material times she was a high performer who was trustworthy, efficient and faithful in her work. 6 It is the Claimant's case that on 16 th January 2024 at 9:48am, while she was on her feet before the Machakos ELC Court, she received a text message from the Respondent's phone number, 0702186263, informing her that he had learnt she was running an enterprise under the name MKJ Advocates from the same office, that this amounted to diversion of clients/business and a conflict of interest against the terms of their engagement, and that it was only logical that she concentrate on her own ventures. The message thanked her for her service, wished her well in her future endeavours, and indicated that her month's salary in lieu of notice, alongside all other entitlements/prior agreed amounts, would be sent to her. 7 The Claimant avers that despite being shocked by this sudden turn of events, she concluded the matter then pending before the ELC Court and made numerous phone calls to the Respondent to establish what was going on, which calls went unanswered to date. 8 She states that she thereafter packed her belongings, including her grey book and pro-bono files, and handed Page 3 of 33

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over the office laptop to the secretary, who in turn gave her one file she had opened at the Respondent's office with the Respondent's permission and/or knowledge, remarking that "the boss has said you go with this," whereupon she left the Respondent's office. 9 The Claimant contends that notwithstanding her numerous demands and notice of intention to sue, the Respondent has refused and/or neglected to pay her dues. 10 She asserts that her termination was un-procedural and in outright violation of the Constitution of Kenya 2010 and the Employment Act, in that the Respondent did not accord her an opportunity to be heard before making the decision to terminate her employment, that the termination was without justifiable cause and against the rules of natural justice, and that it was unreasonable, without basis and against public policy. 11 It is the Claimant’s case that as a result of the Respondent's unlawful and unfair labour practices, she has suffered immense loss and emotional turmoil for which the Respondent is liable. Respondent’s Case 12 In opposition to the claim, the Respondent filed a Response to Claim and Counterclaim dated 20 th May 2024. Page 4 of 33

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13 The Respondent that the Claimant earned a consolidated monthly salary of Kshs. 55,000 throughout her employment, with no increments ever made to this figure, a position he states is evidenced by his NHIF contributions of Kshs. 1,200 made monthly on her behalf. 14 He avers that any amounts received by the Claimant above this consolidated sum were one-time bonuses, commissions or gratuities tied to specific file closures and settlements, or reimbursements for travel and airtime expenses, and were not continuous benefits capable of grounding a continuing claim. 15 The Respondent avers that the Claimant's roles ought to have been discharged with fidelity to him and in accordance with his firm's organizational provisions, and states that instead of discharging her duties diligently, the Claimant was engaged in simultaneous dealings with the firm of MKJ Advocates LLP while still in his employment, a position he states is traversed in his counterclaim. 16 The Respondent states that his communication to the Claimant was an expression of his concern over her improper conduct and the amounts owed to her subject to a determination of culpability, and avers that there was no clear-cut termination of her employment. Page 5 of 33

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17 It is the Respondent’s case that he made multiple attempts to resolve the matter amicably, in recognition of the Claimant's prior service, but she met these overtures with hostility and disregard. 18 The Respondent avers that vide a response to the Claimant's demand letter dated 19th January 2024, he invited her to report to work on the official opening date of 22nd January 2024, pending the findings of an internal probe, which probe had begun on 16th January 2024 with the Claimant present and accorded an opportunity to respond to the accusations against her. 19 He contends that despite receiving summons to return to work on 22nd January 2024, the Claimant ignored the same and has absconded work for over four months. 20 The Respondent states that the Claimant appeared before the probe on 22nd January 2024 and was thereafter summoned again for a disciplinary hearing, a summons she similarly did not honour. 21 The Respondent avers that the Claimant has failed to establish with reasonable precision the particulars of her alleged termination, and that she has, by mere assumption, concluded that she was unfairly terminated Page 6 of 33

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on 16th January 2024 despite his directive that she resume work on 22nd January 2024. 22 He states that all staff, including the Claimant, proceeded on annual leave during the Christmas break from 22 nd December 2023 to 22nd January 2024, a total of thirty days, and avers that her claim for accrued leave days has accordingly been relinquished. 23 He asserts that the Claimant's claim is founded on a text message that does not qualify as a notification mechanism under his applicable termination provisions and procedures. 24 By way of counterclaim, the Respondent avers that the Claimant was employed as a full-time Associate with no room to contract other employment or run another law firm concurrently. 25 He states that he suspected her of simultaneous dealings with MKJ Advocates LLP and of diverting clients to that firm, and that he accordingly wrote to the Executive Officer on 17th January 2024 requesting certified copies of pleadings in three named matters, and asked the Claimant to avail her work laptop for investigation. Page 7 of 33

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26 The Respondent avers that he found the Claimant had directed his client, one Patrick Mutua Mulei, to pay Kshs. 20,000 directly to her personal phone number for a conveyance matter valued at Kshs. 11,500,000, contrary to his billing policy. 27 The Respondent states that the Claimant further went ahead and received Kshs. 15,167 on 2nd October 2023 and Kshs. 7,587 on 25th October 2023, sums he states resulted from undercutting approximately Kshs. against 250,000 the minimum prescribed fee of under the Advocates Remuneration Order. 28 It is the Respondent’s case that the Claimant was afforded opportunity to respond through a letter dated 16 th February 2024 inviting her to a disciplinary hearing on 23 rd February 2024, which she neglected to attend, prompting him to proceed with his own internal investigations. 29 The Respondent sets out seven findings of impropriety: contravention of the office billing policy occasioning loss of Kshs. 277,500; running MKJ Advocates from within his firm to the detriment of client files; insubordination as reported by one Francis Kathitu; declaring a false office address matching that of MKJ Advocates; using office time, laptop and email to advance MKJ Advocates' interests; creating a Page 8 of 33

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hostile working environment for junior staff; and diverting walk-in clients for personal gain. 30 The Respondent contends that these findings amount to a fundamental breach of the employment agreement, particularised as abscondment from the workplace since 23rd January 2024, diversion of business to MKJ Advocates LLP and herself, failure to honour disciplinary summons, and contravention of the billing policy. 31 He avers that he has consequently suffered financial loss, loss of business and loss of organizational harmony, and states that he has acted in good faith to settle the matter amicably, which efforts the Claimant has frustrated. 32 The Respondent therefore prays that judgment be entered against the Claimant for: a. A declaration that the actions of the Claimant of running and/or working for a different law firm while engaged and/or employed by the Respondent as a full-time misconduct employee and/or amounts conduct to professional unbecoming of an Advocate of the High Court of Kenya. b. A declaration that the Claimant fundamentally breached the terms of engagement between herself and the Respondent. c. Cost for this suit Page 9 of 33

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d. Interest at court rates. e. Any other remedy deemed fit and just by this Court. Evidence in Court 33 The Claimant witness, (CW1) adopted her witness statement filed on 15th February 2024 as her evidence in chief and produced her list of documents dated 15 th February 2024 and supplementary list of documents dated 28th May 2024 as her exhibits. 34 During cross-examination, CW1 testified that she included her phone number and email addresses court pleadings she drafted and filed on behalf of MKJ Advocates Llp and its employee; for the purpose of communication. 35 In respect to the sale agreement dated 1 st July 2023, she testified that the purchase price was 11 million and the legal fees payable being Kshs. 20,000. 36 CW1 testified that she acted as per Mr. Nzei’s instructions. He never called or protested the fee charged at the time of the sale agreement 37 CW1 testified that on 22nd January 2024, she was not at the office as she was before Hon. Otindo. Page 10 of 33

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38 The Respondent’s witness, Benjamin Nzei (RW1) adopted his witness statement as his evidence in chief and produced the Respondent’s documents as his exhibits, marked as Respondent's exhibits 1 to 13. 39 RW1 testified that he was aware of Claimant's dealing with MKJ Advocates. He got the office email, and the drafter and executor was MKJ Advocates with the Claimant’s email address and registered telephone no as the contact information of MKJ Advocates. 40 He testified that the text message was based on an obvious response, and was an invitation to a mutual separation, which was responded with OK. 41 RW1 testified that he has not paid the Claimant 1 month's salary in lieu of notice. He paid some money to her counsel to facilitate a mutual meeting. 42 Upon cross-examination, RW1 testified that the Claimant was an employee. On 16/1/2023, he sent her a text message at 11:12am, wherein he stated that he will be sending her salary in lieu of notice; subject to agreement between employer and employee. He wished her well in her future endeavours. Page 11 of 33

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43 RW1 testified that he established that Claimant was dealing with MKJ Advocates January 2024, however, he did not issue her with any warnings. 44 RW1 testified that he confirmed that Claimant was working with MKJ Advocates and had received money from clients, e.g. Mulei; the Respondent has produced the client acknowledgment form which acknowledges the Claimant received the money. 45 RW1 testified that there is no Mpesa reference no. 46 He testified that the text message confirmed that there was a mutual separation. There is no termination notice. 47 It is RW1’s testimony that the Claimant went against the office's bullying policy, however, the Respondent have not attached the policy. 48 He testified that a demand notice was served upon him. He responded to it in 2024, the office was opening in early or mid January. He has not filed the notice. 49 He testified that he invited the Claimant for consultation after he received the demand notice, in January or February, however, the invitation was declined. Page 12 of 33

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50 RW1 testified that the minutes of the internal probe are not in court. One of the staff members, Alvin Njuguna, did the probe. He is an Intern. 51 RW1 testified that the Claimant's salary was KSh 55,000; consolidated and the top-up was by Claimant’s bonuses. 52 From the Mpesa statement, RW1 testified that the Claimant’s salary didn't increase from 55,000. Other monies were for bills which they used to agree on how to calculate the bonuses. 53 He testified that the Claimant was not issued with a Notice to Show Cause. After receiving the demand notice, there was attempts for mediation but the invitation bore no fruits no avail. Claimant made [a] claim about fun[d]s after acknowledging her engagement with MKJ Advocates. There were allegations from Kithithi and [Muteanwe] by the Claimant in 2023. We didn't interview the Claimant. 54 He testified that Patrick Mulei is not my witness in this case. 55 The Respondent’s witness, Francis Kathitu stated that he is a clerk at the firm of Nzei & Co Advocates. He adopted his Page 13 of 33

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written statement in support of Respondent dated 20 th May 2024 as his evidence-in-chief. 56 During cross-examination, he acknowledged that he has known Joy Kwamboka for 4 years; as she joined the firm as an Associate in June 2023. 57 He testified that he had a cordial relationship with the Claimant, however, she changed in November 2023. She started being arrogant, bullying staff in the office orally. 58 RW2 testified that he reported the bullying to the Managing Partner of the firm, vide an undated letter. 59 He testified that in 2024, the firm was opened around 15 th January 2024, but they were on call. 60 During re-examination, he testified that the harassment had been ongoing from November 2023. The staff go on leave around 15th December 2024, but resume in midJanuary, but they keep on call in case of any urgent matter. 61 The Respondent’s witness, Alvin Njuguna (RW3) stated that he is employed by the Respondent as a Legal Assistant and he also does admin duties. He testified that Page 14 of 33

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he is currently an Intern and he is aware of the instant suit. RW3 adopted his written statement 20 th May 2024 as his evidence-in-chief. 62 Upon cross-examination, RW3 testified that he investigated the claim raised against the Claimant. He is an investigator. 63 On the issue of Claimant working with MKJ, RW3 testified that he did not visit the firm, but the Respondent received several pleadings drafted and signed by Claimant on behalf of MKJ. 64 He testified that Patrick Mulei is a client of the Respondent who said that he paid money to Claimant and he gave him the Mpesa confirmation messages. However, he did not give statements on his phone. 65 RW3 testified that the Respondent has not attached the statement or the billing policy relied by the Respondent. 66 RW3 testified that he did not interview the witness. He was asked to conduct the probe but can't recall exact date and how long the process took. Page 15 of 33

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67 RW3 testified that he submitted the report on 17 th February 2024. The report from staff expresses harassment [concerning] Francis Katithu. 68 He testified that the Claimant drafted and drafted pleadings by another firm, containing her email and telephone no. There were also affidavits sworn by Claimant. 69 RW3 testified that these documents were supplied by the EO of the law courts; and the court registry verified the authenticity of these documents. 70 He testified that the pleadings in case 635/2019, in Machakos CM’s Court and were drawn by MKJ Advocates LLP. The email address nancymulima@yahoo.com; the telephone number belongs to Claimant. 71 RW3 testified that the notice dated 27 th January 2023 attached to the document, drawn by MKJ Advocates LLP, contains the Claimant's telephone number. There is also another number. 72 He testified that the pleadings indicate MKJ Advocates were on record on Divorce Case E38/22, and the pleadings were drafted by MKJ Advocates LLP. Page 16 of 33

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Claimant’s Submissions 73 The Claimant submitted that she was employed by the Respondent's firm as an Associate Advocate on 6 th June 2022 at a starting salary of Kshs. 55,000, which was progressively increased to Kshs. 90,000, and that her salary never reverted to the initial figure. 74 The Claimant submitted that on 16th January 2024, while she was in court, she received a text message from the Respondent alleging that she was running a competing enterprise under the name MKJ Advocates, diverting clients, and informing her that her services were no longer required, with salary in lieu of notice and other entitlements to follow. She subsequently made efforts to seek clarification but this was futile, as the office thereafter demanded return of the laptop and stationery, which she duly surrendered the same and exited the firm. 75 It was submitted that the Respondent did not dispute the fact of employment but characterized the message as a mere collegial inquiry rather than a termination, and contended that the salary increments were commissions, a position the Claimant argued was untenable given that the salary never reverted to Kshs. 55,000. Page 17 of 33

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76 On the allegation of conflict of interest, she submitted that the Respondent conceded in cross-examination that the documents relied upon to link the Claimant to MKJ Advocates LLP were obtained through the court administrator and were never in her possession. Further, the Respondent did not produce any CR12 or business registration certificate; the contact details on the impugned pleadings did not belong to her; and no witness from MKJ Advocates LLP was called to substantiate the allegation. 77 On the related land transaction, it was submitted that the Respondent admitted the disputed monies were paid into his own office account and a receipt issued. The client acknowledgment relied upon was obtained after the fact and disclosed no nexus to the Claimant, and that the client was never called to testify. On this basis it was submitted that the counterclaim was not prosecuted and ought to be dismissed with costs. 78 On procedural fairness, the Claimant submitted that the respondent admitted that he attempted to have the due process after the claimant had issued demand letter and filed suit. She further reiterated that she had explored alternative dispute resolution specifically mediation for a Page 18 of 33

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period of almost a year but the same failed at the instance of the Respondent. 79 On the first issue, relying on Section 43 of the Employment Act, 2007, the Claimant submitted that the burden lay on the Respondent to prove the reason for termination, failing which it is deemed unfair under Section 45. Further, under Section 45(2), the employer must show the reason was valid, fair, and that the process accorded was procedurally fair. 80 Reliance was placed on Walter Ogal Anuro V Teachers Service Commission [2013] KEELRC 386 (KLR), where the court held that a fair termination requires both substantive justification and procedural fairness, testing the employer's conduct against Section 43(1) and (2), which requires that an employee be informed of the reason for contemplated termination and be heard. 81 It was submitted that the Respondent's own response, at paragraphs 15 and 16, conceded that the Claimant was an exemplary employee who had closed numerous matters in the firm's favour. Reliance was further placed on Muregi v Highridge Secondary School [2026] KEELRC 379 (KLR), where the Court found that Page 19 of 33

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termination without notice or payment in lieu under Section 35(1)(c) to be unlawful and unfair. 82 The Claimant submitted that the text message itself evidenced an unequivocal termination, coupled with an undertaking to pay salary in lieu of notice and other entitlements which the Respondent admitted remained unpaid, and that no disciplinary process preceded the decision. 83 It is the Claimant’s submission that the Respondent did not apply the procedural fairness test. She was never informed of the grounds for termination and neither was she accorded a disciplinary process as enshrined in law prior to termination. Additionally, the Respondent admitted to attempting to ratify the said illegality by conducting the investigation and/or the disciplinary hearing way after demand letter had been served and suit filed. 84 On the allegation that the Claimant had absconded duty, it was submitted, relying on Simon Mbithi Mbane v Inter Security Services Limited [2018] eKLR, that an employer alleging abscondment must reasonably demonstrate efforts made to reach the employee, which Page 20 of 33

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the Respondent failed to do. It was accordingly submitted that the termination ought to be found unfair for want of procedure. 85 On the leave claim, it was submitted that the Claimant was deserving of the statutory timelines of 21 days per year as enshrined under section 28 of the Employment Act, however, the Respondent never accorded her leave during her tenure of about 18months or thereabouts. Further, the Respondent did not provide any records to substantiate the assertion that the Claimant had proceeded for leave as provided for in section 74(1)(f) of the Employment Act. 86 On the second issue, the Claimant submitted that she has proved her case to the required standard thus the prayers sought are merited. She argued that the Respondent failed to prove the allegations against her as it admits to flaunting the legal process of termination by terminating the Claimant then purporting to conduct investigations and disciplinary hearing. Further no minutes of the alleged investigation and/or disciplinary process were adduced. 87 In support thereof, the Claimant cited Kenya National Private Workers Security Page 21 of 33 Union v G4S Kenya

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Limited [2025] KEELRC 3121 (KLR), in the Court held that the absence of notice of a disciplinary hearing under Section 41 of the Employment Act rendered a dismissal unfair for want of valid reason and fair process. It was submitted that no evidence of NSSF contributions was adduced, entitling the Claimant to service pay under Section 35(5) and (6) at fifteen days for each completed year served. 88 The Claimant further submitted that the Respondent has not adduced any evidence of payment of NSSF. Service pay is payable under section 35 (5 and 6) of the Employment Act where there is no NSSF or other social security like in the instant case. The claimant worked for one year, thus, she is entitled to service pay tabulated at 15 days for the completed year. Respondent’s Submissions 89 The Respondent submitted four issues: whether the Claimant was unfairly and unlawfully terminated or absconded duty; whether the Respondent had valid concerns warranting investigations and disciplinary action; whether the Claimant proved entitlement to the remedies sought; and a response to the Claimant’s submissions. Page 22 of 33

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90 On the first issue, the Respondent submitted that the Claimant failed to prove the existence of a termination, which was the foundation of her claim. It was argued that had the Respondent terminated the Claimant's employment on 16th January 2024 as alleged, there would have been no reason to invite her to resume duty six days later or to require her to participate in disciplinary proceedings thereafter. 91 It is the Respondent’s submission that the correspondence requiring the Claimant to return to work demonstrated that the employment relationship remained intact and that no termination had occurred. Therefore, the Claimant abandoned her employment by failing to resume duty despite several invitations. 92 The Respondent relied Teachers on Walter Service Ogal Anuro V Commission [2013] KEELRC 386 (KLR) to submit that a claim for unfair termination can only succeed where termination is first established. It was contended that, since the Claimant failed to prove termination as required under section 47(5) of the Employment Act, the Court could not proceed to determine whether the alleged substantively or procedurally unfair. Page 23 of 33 termination was

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93 Without prejudice to its position that there was no termination, the Respondent submitted that it nevertheless complied with the procedural requirements of section 41 of the Employment Act by issuing the Claimant with a notice to show cause and inviting her to attend a disciplinary hearing. However, the Claimant deliberately failed to attend the disciplinary hearing or offer any explanation for her absence and therefore she could not allege denial of a fair hearing after declining to participate in the disciplinary process. 94 In support of this position, reliance was placed on Maina v Carton Manufacturers Limited [2026] KEELRC 190 (KLR), where the Court held that an employer is entitled to dismiss an employee for absconding duty after making reasonable efforts to accord the employee an opportunity to explain the absence. 95 The Respondent further cited Jackson Butiya v Eastern Produce Kenya Limited [2017] eKLR for the proposition that an employee who declines to utilise an employer's internal grievance mechanisms cannot subsequently complain that they were denied a hearing. The Respondent therefore submitted that any prejudice suffered by the Claimant was self-induced. Page 24 of 33

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96 On the second issue, the Respondent submitted that the investigations were prompted by genuine concerns regarding the Claimant's conduct, including allegations of diverting clients, receiving legal fees directly from clients, engaging in legal practice through another law firm whilst still employed by the Respondent, misuse of office resources and insubordination. 97 It submitted that such allegations fell within the scope of gross misconduct contemplated under section 44(4) of the Employment Act and justified investigations and disciplinary action. 98 The Respondent further argued that advocates occupy positions of trust requiring utmost fidelity and loyalty to their employers. It cited Judicial Service Commission v Gladys Boss Shollei & Another [2014] eKLR for the principle that employment relationships founded on trust demand the highest standards of honesty, fidelity and professional conduct. 99 It is the Respondent’s submission that the documents obtained from MKJ Advocates LLP, which allegedly bore the Claimant's name, signature and email address, provided reasonable grounds for Page 25 of 33 believing that the

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Claimant was engaged in competing legal practice while still employed by the Respondent. According to the Respondent, the Claimant failed to provide a satisfactory explanation to rebut those allegations, thereby justifying the investigations undertaken. 100 On the third issue, the Respondent submitted that the Claimant failed to establish any legal basis for the remedies sought. It was argued that, since no termination had been proved, the declarations sought, notice pay, compensation under section 49 of the Employment Act and the alleged violation of Article 41 of the Constitution could not issue. 101 The Respondent fd`contended that the Claimant failed to prove that her contractual salary was Kshs. 90,000, maintaining that the additional sums received constituted commissions, bonuses and reimbursements rather than salary increments. 102 The Respondent further submitted that severance pay was unavailable because section 40 of the Employment Act confines the remedy to cases of redundancy. It maintained that the claim for accrued leave was unsupported by evidence demonstrating the Page 26 of 33 period claimed or the

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computation thereof, while the prayer for general damages was not available under the Employment Act in the absence of an independent constitutional or tortious violation. 103 In support thereof, the Respondent placed reliance on Kenya Revenue Authority v Reuwel Waithaka Gitahi & 2 others [2019] eKLR for the proposition that remedies for unfair termination are discretionary and dependent upon proof of unlawful termination. 104 Responding to the Claimant’s submissions, the Respondent submitted that the text message allegedly communicating the Claimant's dismissal was inadmissible because it was not accompanied by a certificate as required under section 106B(1) and (4) of the Evidence Act. It contended that the statutory requirements governing electronic evidence are mandatory and that the Claimant's failure to comply with them rendered the message incapable of proving termination. 105 In support, the Respondent relied on Ogembo v Yongo [2024] KEHC 15763 (KLR), where the Court held that electronic records produced without a certificate under section 106B are inadmissible and that the omission is not Page 27 of 33

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a procedural technicality curable under Article 159(2)(d) of the Constitution. 106 It is the Respondent’s submission that the Claimant had failed to discharge the burden imposed by section 47(5) of the Employment Act of proving that her employment had been terminated. 107 The Respondent submitted that the investigations undertaken were based on reasonable and genuine grounds and relied on Kenya Revenue Authority v Reuwel Waithaka Gitahi & 2 others [2019] eKLR for the principle that an employer is only required to demonstrate a genuine and reasonable belief in the employee's misconduct when commencing disciplinary proceedings. 108 I have examined all the evidence and submissions of the parties herein. The employer-employee relationship between the claimant respondent is established and admitted. It is however contested as to the salary earned by the claimant with the claimant averring it was kshs 90,000/- and respondent indicating it was kshs 55,000/- at the end of the relationship. Page 28 of 33

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109 The claimant produced her bank statement which shows money sent in by the respondent over the years from 2022 to 2024 starting from kshs 55,300/- and progressing to kshs 65,000/- then kshs 70,300/-, to kshs 80,000 and lastly kshs 90,000/-. In fact, similar amounts were paid to the claimants on more than one occasion which shows consistency of the figures. 110 Other than this, the respondent himself failed to produce an employment contract which shows how much was agreed in the contract. Because of this omission and on reliance to section 10(7) of the Employment Act which states as follows: If in any legal proceedings an employer fails to produce a written contract or the written particulars, prescribed in subsection (1) the burden of proving or disproving an alleged term of employment stipulated in the contract shall be on the employer. the court will decide this contention in favour of the claimant by finding that her due salary at termination was kshs 90,000/-. 111 As concerns the termination of the claimant, it is acknowledged by the respondent that he sent a text to the claimant on the 16th January 2024 at 9.48a.m. informing her that because she was directing clients to MKJ Page 29 of 33

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advocates it was logical she concentrates on her ventures. He thanked her for her service and wished her good luck in her future endeavors. 112 He further informed her that he will be sending her month’s salary in lieu of notice along with all other entitlements/prior agreed amounts. My reading of the text shows an intention to terminate the claimant’s services and to which the claimant indicated it is fine showing a complete severing of the claimant’s services. 113 The respondent admitted that he did not give her any notice to show cause prior to this and it is therefore true that the procedure adopted by the respondent was unfair, unjustified and contrary to provisions of section 41 of the Employment Act 2007 which states as follows: 41. (1). Subject to section 42 (1), an employer shall, before terminating the employment of an employee, on the grounds of misconduct, poor performance or physical incapacity explain to the employee, in a language the employee understands, the reason for which the employer is considering termination and the employee shall be entitled to have another employee or a shop floor union representative of his choice present during this explanation. Page 30 of 33

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114 Section 45(2) of the Employment Act 2007 states as follows: (2) A termination of employment by an employer is unfair if the employer fails to prove― (a) that the reason for the termination is valid; (b) that the reason for the termination is a fair reason― (i) related to the employees conduct, capacity or compatibility; or (ii) based on the operational requirements of the employer; and (c) that the employment was terminated in accordance with fair procedure 115 Given the lack of procedural propriety, I find the termination unfair and unjustified and I declare this as the position. 116 As concerns the counter claim, the issues of whether the claimant directed clients to another firm or not are issues that must have been established before the termination which was not done. The respondent witnesses (2) testified that the claimant was bullying staff but the form of bullying was not presented to court by any staff. Page 31 of 33

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117 RW3 indicated he is the one who investigated the claim against the claimant as an investigator. He indicated that Patrick Mulei is a client of the respondent and gave money to the claimant but the said Patrick was never called to testify as to the reasons for the sending the money if at all. A report of their investigation and how far they impacted the respondents firm has not been submitted to court. The extent of the counter claim and what the respondent seeks from the claimant is therefore not established. The counter claim must therefore fail and is dismissed accordingly. 118 Having found as above, I enter judgment for the claimant in the following terms: (1) 1 month salary in lieu of notice = kshs 90,000/-. (2) Given the extent of the unfairness which rendered the claimant abruptly unemployed, I find 6 month’s salary as compensation for the unfair termination adequate which I render at kshs 90,000x6= kshs 540,000/-. Total awarded kshs 630,000/- less statutory deductions. (3) The respondents will pay costs of this suit plus interest at court rates with effect from the date of this judgment. Page 32 of 33

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Dated, Signed and Delivered virtually at Nairobi this 28th Day of September 2026. HELLEN WASILWA JUDGE Page 33 of 33

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