Ruth Wanjiru Ngobia v Action Against Hunger

(f) Any other relief that the Honourable Court may deem fit and just to grant. 2. The Claimant pleaded:(a) that the Claimant was employed by the Respondent on 20th June, 2023 at a gross monthly salary of Kshs.142,809.30 (basic salary plus house allowance). (b) that the Claimant Respondent during worked the diligently entire period for the of her employment, without any warning or complaint. DRAFT (c) that the Respondent terminated the Claimant’s employment on 24th August, 2023 without notice and without any justifiable cause. (d) that the termination was malicious in that it was done abruptly and without notice, justifiable cause, and that the Claimant was not given a fair hearing. (e) that as a result, the Claimant was exposed to mental anguish, torture and inconvenience, and that her life station was compromised. JUDGMENT Nairobi ELRC Cause No. E891 of 2023Page 2 of 20

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(f) that the Claimant’s salary, terminal dues and benefits were not taken into account by the Respondent at the time of termination. 3. Documents filed alongside the statement of claim included an affidavit in verification of the claim, the Claimant’s witness statement dated 29th February, 2024, and an evenly dated list of documents listing 17 documents. The listed documents included the Claimant’s one year contract commencing on 20th June, 2023 and ending on 19th June, 2024, payslips for July and August 2023 respectively, show DRAFT cause letter dated 21 st August, 2023, 2 emails to the Claimant sent on 21st August, 2023 at 10.18 p.m and 10.28 p.m respectively, an email sent to the Claimant on 22 nd August, 2023, termination letter dated 24 th August, 2023, letters from Nairobi Hospital dated 25 th May, 2023 and 19th June, 2023 respectively, among other documents. 4. The Respondent entered appearance on 16 th November, 2023 and defended the suit vide its Response to Claim dated 8th December, 2023. The Respondent pleaded, inter-alia:- JUDGMENT Nairobi ELRC Cause No. E891 of 2023Page 3 of 20

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(a) that the Claimant’s contract was for a fixed term starting from 20th June, 2023 to 19th June, 2024, and provided for a 3 months’ probation period. (b) that the Claimant was still under probation when her contract was lawfully terminated for lack of diligence on her part. (c) that prior to her termination, the Claimant admitted in writing (vide a letter dated 21 st August, 2023) to having accessed and deleted the Respondent’s restricted data without authorization, which actions amounted to gross DRAFT misconduct. (d) that despite the admission, the Respondent followed the substantive and procedural law in terminating the Claimant’s employment. (e) that the Claimant was accorded a fair hearing vide a disciplinary hearing conducted on 22nd August, 2023. (f) that the Claimant’s employment was lawfully terminated, and that she (the Claimant) is not entitled to compensation. JUDGMENT Nairobi ELRC Cause No. E891 of 2023Page 4 of 20

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5. Other documents filed by the Respondent included a witness statement of Anne Kiprotich dated 23rd January, 2024 and a list of documents dated 29th October, 2023, listing 4 documents. The listed documents included the Claimant’s employment contract, a show cause letter dated 21 st August, 2023, minutes of a disciplinary meeting held on 22 nd August, 2023, and a termination letter dated 24th August, 2024. 6. Trial opened before me on 24th January, 2025. The Claimant testified and adopted her filed witness statement as her testimony, and produced in evidence the documents DRAFT referred to in paragraph 3 of this Judgment. The Claimant further testified:(a) that she had never admitted having unlawfully and without authorization accessed the Respondent’s system. (b) that she had stated in her letter dated 9 th August that she could not remember having deleted the Respondent’s NHF records; this despite that she was new in the organization. JUDGMENT Nairobi ELRC Cause No. E891 of 2023Page 5 of 20

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(c) that no evidence was presented at the disciplinary hearing to show that the Claimant had accessed the Respondent’s system and deleted information. 7. Cross-examined, the Claimant testified that she was employed by the Respondent on 20th June, 2023 as a Security Officer and was not given any job description. That she was, on 21st June, 2023, given a mobile phone and a laptop and access to the Respondent’s NHF Data Base, and was encouraged by a person from the IT Department to familiarize herself with the Data Base. That a user DRAFT account was created for her and that she was given a password which she could use to gain access to the system; which password she could change later. That the Claimant first accessed the system on 31 st July, 2023, and that the accusation of having deleted information came long after access to the Respondent’s system was give on 21 st June, 2023. That the Claimant accessed the database between 29th and 31st July, 2023 as she created a password. 8. The Claimant further testified (under cross-examined) that the Human Resource Folder JUDGMENT Nairobi ELRC Cause No. E891 of 2023Page 6 of 20 in the system had no

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password and was not restricted. That there were folders/information from various departments. That she clicked on the HR folder and opened and closed it. That she did not admit having committed any mistake by doing so. That she stated in her response to the show cause letter that she may have deleted the folder unknowingly. 9. It was the Claimant’s further testimony:(a) that she responded to the show cause letter on 21st August, 2023, and was, vide an email dated the same date, invited for a disciplinary hearing DRAFT on 22 nd August, 2023; and was notified that she could be accompanied by a witness. That the email was sent at night. (b) that the Claimant had been authorised to access the system in issue, and had been given a LOG IN by the IT Department. (c) that the Claimant denied the charges of unlawful access and deleting of folders. (d) that she was not given the minutes (of the disciplinary hearing) to go through and to sign; and only saw them when they were filed in Court. JUDGMENT Nairobi ELRC Cause No. E891 of 2023Page 7 of 20

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(e) that the Claimant had only worked for 2 months, and was still on probation when her employment was terminated. 10. Re-examined, the Claimant testified that the show cause letter was issued to her on 21 st August, 2023 at noon, with a deadline of the following day. That the invitation to attend a disciplinary hearing was received by her on 21 st August, 2023 at 10.18 p.m (22.18). That the invitation did not specify the charges. That she did not admit having deleted any information, this being the reason why she used the DRAFT word “may”. That the Claimant was not given time to seek Counsel. 11. The Respondent called 1 witness, Loice Birgen (RW-1), who adopted her filed witness statement and produced in evidence the documents referred to in paragraph 5 of this Judgment. RW-1 further testified:(a) that she worked in the Respondent’s HR Regional Office, and that on finding that the HR Folders had been deleted from the system, she contacted the JUDGMENT Nairobi ELRC Cause No. E891 of 2023Page 8 of 20

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IT at the Respondent, and it was ascertained that the Claimant had accessed the documents, read and deleted; as the system was able to give that information. (b) that the witness (RW-1) was given other folders as the IT Personnel were able to retrieve them from the recycle bin, where the documents stay for 3 months before they are finally wiped out. (c) that the Claimant was put through disciplinary process, and she admitted that she may have deleted the documents. DRAFT (d) that the Claimant was in her 2 nd month of employment and still on probation. 12. Cross-examined, RW-1 testified:(a) that the Claimant had access to the data base, and had log-in credentials and rights to folders in the Data Base. (b) that HR folders are supposed to be accessed by the HR Team only, and that there was an error if JUDGMENT Nairobi ELRC Cause No. E891 of 2023Page 9 of 20

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the Claimant could access it. That the Claimant had access rights and could access the HR folders. (c) that the Respondent gave the Claimant the access rights/credentials. (d) that RW-1 had received screenshots from ICT showing that the Claimant had deleted the folders, but had not produced them (screenshots) in Court. (e) that the show cause letter dated 17th August, 2023 was issued to the Claimant on 21st August, 2023 at noon; and that she was supposed to respond to the same on 22nd August, 2023. That the DRAFT Claimant had 24 hours to respond. (f) that in her response dated 21st August, 2023, the Claimant stated that she may have deleted; and did not state with certainty that she deleted. (g) that an invitation for a disciplinary hearing was issued on 21st August, 2023 at night (at 22.18), to attend a hearing on 22 nd August, 2023, and did not state the charges or attach any evidence. (h) that the Claimant gave a reason [at the disciplinary hearing] why she did not appear with a representative. JUDGMENT Nairobi ELRC Cause No. E891 of 2023Page 10 of 20

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(i) that the minutes [of the disciplinary hearing] filed in Court were not signed by the Claimant and the other attendees. (j) that no evidence had been filed (produced) by the Respondent showing that the Claimant deleted the HR folder. 13. Re-examined, RW-1 testified that although the Claimant was supposed to access the system as per her department, “We must accept that there was an error by the ICT. They did not restrict the HR Folders. There DRAFT was no security . . .” 14. Having considered the pleadings filed by both parties and evidence adduced thereon, issues that fall for determination, in my view, are as follows:(a) Whether termination employment by the of the Claimant’s Respondent was unlawful and unfair. (b) Whether the reliefs sought by the Claimant are deserved. JUDGMENT Nairobi ELRC Cause No. E891 of 2023Page 11 of 20

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15. On the first issue, for a termination to pass the fairness test, there must be both substantive justification and procedural fairness. Substantive justification has to do with establishment of a valid reason for the termination, while procedural fairness addresses the procedure adopted by the employer in effecting the termination. (Walter Ogal Anuro – vs – Teachers Service Commission [2013] eKLR). 16. Before addressing the issue of fairness/legality or lack of it in the termination of the Claimant’s employment by the Respondent, it is worthy noting that the Claimant was still DRAFT serving her 3 months’ probationary period when her employment was terminated by the Respondent on 23 rd August, 2023. 17. Clause 7 of the Claimant’s employment contract states as follows:“At the start of this assignment, you will be on a 3-month probation. At the end of this period, a performance evaluation will be conducted to determine your employment. suitability Based JUDGMENT Nairobi ELRC Cause No. E891 of 2023Page 12 of 20 on for the the continued employer’s

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assessment and at its sole discretion, the Employer may confirm your employment. Should the employee performance not be satisfactory during this period, the employer can terminate the employment contract. Should you wish to resign during your probationary period, notice period of 14 days is required by the employee and employer”. 18. It is clear from the foregoing contractual provision that the DRAFT Claimant’s probationary employment could only be terminated by the employer (the Respondent) at the end of the 3-month probationary period, and upon a performance evaluation by the employer to determine the Claimant’s suitability for continued employment. A 14 days termination notice during the probationary period was required from any of the contracting parties wishing to terminate the contract during the probationary period. 19. The Respondent is shown to have ignored Clause 7 of the employment contract, and to have initiated a purported JUDGMENT Nairobi ELRC Cause No. E891 of 2023Page 13 of 20

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process of terminating the Claimant’s contract some 2 months into the probationary period, and unlawfully purporting to invoke the procedure contemplated in Section 41 of the Employment Act. 20. Section 42(1) and (4) of the Employment Act provides as follows:“(1) The provisions of Section 41 shall not apply where a termination of employment terminates a probationary contract. (2) . . . DRAFT (3) . . . (4) A party to a contract for a probationary period may terminate the contract by giving not less than seven days’ notice of termination of the contract, or by payment, by the employer to the employee, of seven days’ wages in lieu of notice”. 21. Termination of the Claimant’s probationary contract was effected in breach of clause 7 of the employment contract JUDGMENT Nairobi ELRC Cause No. E891 of 2023Page 14 of 20

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and in contravention of the mandatory provisions of Section 42(1) & (4) of the Employment Act. 22. The Claimant’s performance during the probationary period was not shown to have been evaluated as per the contract, and validity of the allegations levelled against the Claimant by the Respondent were not proved. 23. In response to the irregularly/illegally issued show cause letter dated 17th August, 2023 and issued on 21 st August, 2023 alleging that she had accessed and deleted restricted DRAFT data without authorization, the Claimant stated (in her response to the purported show cause letter) that she “may have deleted the documents unknowingly owing to the fact that she was new in the institution and may not have been well conversant with using the NHF Database System”. The Claimant further testified that she had authorised access to the Respondent’s said Database, and that the NHF folders in issue had no password, and were therefore not restricted. This evidence was corroborated by the Respondent’s witness JUDGMENT Nairobi ELRC Cause No. E891 of 2023Page 15 of 20 (RW-1), who further

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acknowledged the existence of an error in the Respondent’s Database System. 24. Further, RW-1 testified that the Respondent had not adduced any evidence in Court to show that the Claimant had deleted the HR folders said to have been deleted. The Respondent did not establish that it had a valid reason for terminating the Claimant’s probationary contract. 25. In view of the foregoing, I find and hold that termination of the Claimant’s probationary contract was procedurally and DRAFT substantively unfair, wrongful and unlawful. 26. On the second issue, it is to be noted that the Claimant had only worked for the Respondent for 2 months when her probationary contract was unfairly and unlawfully terminated by the Respondent. Section 45(3) of the Employment Act states as follows: “(3) An employee who has been continuously employed by his employer for a period not less than thirteen months immediately before the date of termination shall have the JUDGMENT Nairobi ELRC Cause No. E891 of 2023Page 16 of 20

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right to complain that he has been unfairly terminated.” 27. Can the Claimant complain that she was unfairly terminated and seek compensation for unfair termination? I am persuaded by the decision of (Lenaola, J-as he then was) in the High Court’s decision in Samuel G. Momanyi – vs – Attorney Section General 45(3) of & the Another [2012] Employment Act eKLR, was where declared unconstitutional. DRAFT 28. Having made a finding that termination of the Claimant’s probationary contract was unfair, and taking into account the short period of the Claimant’s service and the unfairness employed by Respondent in terminating the Claimant’s employment, I award the Claimant the equivalent of four (4) months’ salary being compensation for unfair termination of employment. The equivalent of four (4) months’ salary is Kshs.142,809.30 x 4 = Kshs.571,237.2, which I award to the Claimant. JUDGMENT Nairobi ELRC Cause No. E891 of 2023Page 17 of 20

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29. The claim for Kshs.142,809.30 being one month salary in lieu of notice is declined, and the Claimant is awarded Kshs.71,404.65 being 14 days’ salary in lieu of notice pursuant to Section 42(4) of the Employment Act and Clause 7 of the Claimant’s contract of employment. Notice pay is not shown to have been paid, though mentioned in the termination letter. 30. In the upshot, and having considered written submissions filed on behalf of both parties herein, Judgment is hereby entered for the Claimant against the Respondent as follows:DRAFT (a) Compensation employment for unfair termination of ………………………………………………….. Kshs.571,237.2. (b) Payment in lieu of notice ………………… Kshs.71,404.65. Total = …………………… Kshs.642,641.85. 31. The awarded sum shall be subject to PAYE (Pay As You Earn) tax deduction pursuant to Section 49(2) of the Employment Act. JUDGMENT Nairobi ELRC Cause No. E891 of 2023Page 18 of 20

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32. The awarded sum shall attract interest at Court rates, from the date of this Judgment until payment in full. 33. The Respondent shall issue the Claimant with a Certificate of Service pursuant to Section 51 of the Employment Act, within thirty days of this Judgment. 34. The Claimant is awarded costs of the suit. DATED, SIGNED AND DELIVERED AT NAIROBI THIS DRAFT 25 TH DAY OF SEPTEMBER 2026 AGNES KITIKU NZEI JUDGE ORDER This Judgment has been delivered via Microsoft Teams Online Platform. A signed copy will be availed to each party upon payment of the applicable Court fees. JUDGMENT Nairobi ELRC Cause No. E891 of 2023Page 19 of 20

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AGNES KITIKU NZEI JUDGE Appearance: Miss Nyambane for the Claimant No appearance for the Respondent DRAFT JUDGMENT Nairobi ELRC Cause No. E891 of 2023Page 20 of 20

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