Lugado v Gold Crown Foods (EPZ) Limited

accepted the oer and served as Head of Human Resources on the terms set out above. He averred that, without notication, consent or adequate compensation, his role was expanded to cover the Respondent's group of companies, which went beyond the scope of his contract. He nonetheless served diligently, and no complaint or disciplinary issue was ever raised against him before the events in question. 5. He stated that on or about 8th May 2023, the Respondent's emails were blocked, such that it could neither send nor receive email. At the time, the Respondent had no IT & Systems Manager; the incoming one did not report until 22nd May 2023. The Director, Mr. Naveed Ari, directed him to "do all that you can do as we need to get back online." Though the matter fell outside his docket, he involved the Director and the Respondent's IT function, consulted where necessary, and eventually settled on Tandem, the rm that had supported the recruitment of the IT Manager. The email problem was resolved, and the Respondent's Finance Department approved payment of Kshs. 370,000 to Tandem. 6. In his witness statement, which he adopted as his evidence in chief, the Claimant elaborated that, on receiving the Director's instruction, he briefed the Head of Operations, Mr. Noordeen, under whose docket the IT function fell. A conference call was then held in Mr. Noordeen's oce with Tandem, during which the IT ocer, Suleiman, explained the problem in detail. It was that call that scoped the work. Suleiman thereafter shared the relevant details with Tandem. The Claimant said he reported back to the Director on the progress, and that the invoices and Tandem's report were later copied to the Head of Operations, the Head of IT and the Finance Controller. He did not approve the payment. 7. On 30th August 2023, he was served with a notice to show cause which, he said, falsely accused him of breach of a procurement policy that did not exist, and of authorising an inated fee for the recruitment of the IT Manager. He responded the same day. By a letter dated 11th September 2023, he was invited to a disciplinary hearing on 14th September 2023. He faulted the process on several fronts: 8. (a) He was given two days to prepare for the hearing, contrary to the Respondent's Disciplinary Policy and Procedure, which provides for a minimum of ve working days' notice; (b) The person who made the allegations against him was not disclosed to him, though he asked; (c) He was ambushed at the hearing with a bundle of documents and statements of employees which had not been supplied to him beforehand. His plea for time to go through them was declined; (d) He asked that the Head of Operations, Mr. Noor, and the IT Manager, Ms. Christine, be called to the hearing to be questioned on their statements. That request was rejected; (e) The panel included persons who were directly involved in the matters under inquiry, among them the Director whose instructions were in issue and the Head of Finance who approved the payment; (f) Whereas the policy allowed seven days to appeal, he was given forty-eight hours; and (g) The minutes of the hearing were altered, and his responses were omitted. He sought the following reliefs: (a) A declaration that the termination of his employment was unfair, wrongful and unlawful; (b) Unconditional reinstatement; (c) In the alternative, one month's pay in lieu of notice, Kshs. 400,000; https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2731/eng@2026-09-30 2

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9. (d) Twelve months' salary as compensation for unfair termination, Kshs. 4,800,000; (e) Underpayment for services rendered to the Respondent's sister companies; (f) A certicate of service; (g) Aggravated and exemplary damages for maligning his career and reputation; (h) An order that the Respondent issues him an apology and deletes all records relating to his termination from its systems; (i) Interest and costs. The Claimant's documents, led under his List of Documents dated 12th August 2024 and a Supplementary List dated 29th May 2025, included the contract of employment; the notice to show cause and his response; the invitation to the disciplinary hearing; the minutes of the hearing and the email exchanges on them; Tandem's recruitment proposal and its Transition Support Report dated 7th June 2023; email correspondence on the recruitment of the IT Manager; the termination letter; the Respondent's Human Resource Policy Manual containing the Disciplinary Policy and Procedure dated 1st March 2013; and an internal memo dated 14th March 2023. C. The Respondent's Case 10. The Respondent led a Memorandum of Response in October 2024. It admitted employing the Claimant as Head of Human Resources, but stated that the appointment took eect on 8th December 2022. It admitted the remuneration, save that it was subject to statutory deductions. It denied the rest of the Claimant's narrative and put him to strict proof. 11. The Respondent's case was that when its email systems began failing in May 2023, it tasked the Claimant with speeding up the recruitment of an IT Manager, which was squarely the business of the Head of Human Resources. The Claimant, it was said, exceeded the authority and the task assigned to him and, without prior notice or consent of the Respondent, engaged Tandem to resolve the email problem. Had he consulted, he would have learnt that another rm, Overdrive Consultants ("ODC"), as well as Safaricom PLC, had been engaged "through the correct channels" and were already resolving the problem. On 11th May 2023, Safaricom informed Tandem that the emails were up and running. Tandem had done no ascertainable work, yet it raised an invoice of Kshs. 370,000, some thirty-seven times what the rm that did the actual work billed. 12. The Respondent pleaded that it was never within the Claimant's duties to engage a supplier and instruct it without the express approval of the Directors. Because of this conduct, he was issued with the notice to show cause, heard on 14th September 2023, and given "ample time to prepare." He chose to appear without a witness. Having failed to show that proper procurement channels were followed or that he had the Director's approval, he was summarily dismissed by the letter of 19th September 2023 and paid his nal dues of Kshs. 379,075. 13. The Respondent further pleaded that the Claimant "fraudulently created a fake policy AFTER his Disciplinary Hearing in an attempt to defeat the course of justice." It opposed reinstatement as impracticable, contended that the claim for aggravated and exemplary damages did not meet the threshold, and termed the claim for an apology baseless in law. 14. The Respondent's documents included the debit advice for the nal dues, the Claimant's payslip for September 2023, the clearance form and handover notes, the termination letter, the minutes of the disciplinary hearing, the notice to show cause, an email by which the Claimant forwarded proposed https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2731/eng@2026-09-30 3

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policies, a document described as the "Document Properties' details for the fraudulently created Disciplinary Policy 2023 document", and a leave policy, also described as fraudulently created. 15. The Respondent called one witness. I shall refer to his evidence in the course of the analysis, in particular to the concessions he made under cross-examination. D. The Submissions The Claimant's submissions 16. The Claimant's written submissions are dated 25th November 2025, and his rejoinder submissions are dated 19th April 2026. On substance, it was submitted that the Respondent's witness conceded under cross-examination that the termination letter itself refers to a directive from the Director, Mr. Naveed Ari, that the Claimant resolve the email breakdown; that the Claimant was not an IT professional and his job description did not include resolving IT breakdowns; that employees are bound to obey a direct instruction from a Director; and that the Respondent did not produce any procurement policy or procedural document showing what procurement procedure was breached. Reliance was placed on Kenya Revenue Authority v Reuwel Waithaka Gitahi & 2 others [2019] KECA 300 (KLR), Kamendi v Kenya Breweries Limited [2023] KECA 1210 (KLR) and Moses Kaunda Moro v CMC Motors Group Ltd [2013] KEELRC 929 (KLR). 17. On procedure, it was submitted that the Respondent's witness conrmed the existence of the Disciplinary Policy and Procedure dated 1st March 2013, which requires at least ve working days' notice of a disciplinary hearing and requires all evidence to be furnished to the employee at least ve days before the hearing; that the Claimant was given two days' notice; and that the witness statements were served on him at the hearing, their authors not being called. Further, the right of appeal was curtailed from seven days to forty-eight hours, the panel oended the rule against bias, and the minutes existed in several versions, which casts doubt on their reliability. Reliance was placed on Postal Corporation of Kenya v Andrew K. Tanui [2019] eKLR, Pius Machafu Isindu v Lavington Security Guards Limited [2017] KECA 225 (KLR) and Rao v Shreeji Chemicals Limited [2026] KEELRC 783 (KLR). 18. On reliefs, the Claimant urged reinstatement, or in the alternative the maximum compensation of twelve months' salary, together with Kshs. 10,320,000 for the services rendered to the Respondent's sister companies, a certicate of service, aggravated damages and costs. The Respondent's submissions 19. The Respondent's submissions are dated 27th January 2026. It was submitted that the Claimant was served with a self-explanatory notice to show cause, responded to it, was invited to the hearing with notice of his rights to be accompanied, to call witnesses and to present evidence, and fully participated in the hearing. The requirements of section 41 of the Employment Act were therefore met. 20. On substance, it was submitted that the Respondent genuinely believed that the Claimant's engagement with Tandem raised concerns of personal accountability, transparency, possible selfinterest or gross negligence, and that this is all that section 43(2) requires. Reliance was placed on Kenya Revenue Authority v Reuwel Waithaka Gitahi & 2 others (supra), Galgalo Jarso Jillo v Agricultural Finance Corporation [2021] eKLR and Japiny v Kenya Ports Authority [2025] KEELRC 3595 (KLR). The reasons in the termination letter, it was argued, amounted to gross misconduct within the meaning of section 44(4)(c) of the Act. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2731/eng@2026-09-30 4

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21. The Respondent further submitted that the Claimant had not proved that he was headhunted or that his role was expanded; that reinstatement was impracticable, relying on Kenya Airways Ltd v Mbugua [2019] KECA 697 (KLR) and Kenya Airways Ltd v Aviation & Allied Workers Union Kenya & 3 others [2014] KECA 404 (KLR); that the claim for underpayment was unparticularised; and that aggravated and exemplary damages were not merited, relying on Kiarago v Mathews t/a Matbronze Wildlife Art [2024] KEELRC 1786 (KLR). Save for the certicate of service, it was urged, the Claimant was not entitled to any of the reliefs sought. E. Issues For Determination 22. This judgment requires a thorough analysis of the documents presented and of the versions presented by the adversaries in this litigation. Having considered the pleadings, the evidence and the submissions, two principal issues emerge for determination: (i) Whether the termination of the Claimant's employment was fair, procedurally and substantively; and (ii) Whether the Claimant is entitled to the reliefs sought. F. Analysis And Determination Whether the termination of the Claimant's employment was fair The burden of proof 23. That the Claimant was an employee of the Respondent, and that his employment was brought to an end by the Respondent's letter of 19th September 2023, is not in dispute. The Respondent pleads it, and the letter itself is on the record of both parties. 24. In a claim for unfair termination, the law distributes the burden of proof between the parties. Section 47(5) of the Employment Act provides: “ For any complaint of unfair termination of employment or wrongful dismissal the burden of proving that an unfair termination of employment or wrongful dismissal has occurred shall rest on the employee, while the burden of justifying the grounds for the termination of employment or wrongful dismissal shall rest on the employer." 25. The legal burden on the employee is, at the threshold, to establish that his employment was terminated and to place before the Court material that, if unanswered, points to unfairness. It is not a burden to prove the employer's reasons false. The Court of Appeal in Pius Machafu Isindu v Lavington Security Guards Limited [2017] KECA 225 (KLR) described the statutory provisions on termination as "a mirror image of their constitutional underpinning in Article 41 which governs rights and fairness in labour relations." 26. In the circumstances of this case, I am satised that the Claimant discharged that burden. The termination is admitted. Through his evidence and documents, he has placed before the Court a detailed account of the circumstances in which he came to deal with Tandem, a concrete challenge to each of the Respondent's accusations, and specic complaints about the disciplinary process, each tied to a provision of the Respondent's own policy. The evidential burden therefore shifted to the Respondent, under sections 43 and 45 of the Act, to prove the reasons for the termination and to show that they were valid and fair, and that the termination was carried out in accordance with a fair procedure. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2731/eng@2026-09-30 5

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Procedural fairness: the statutory requirements 27. Section 45(2)(c) of the Employment Act provides that a termination of employment is unfair if the employer fails to prove that the employment was terminated in accordance with fair procedure. The content of fair procedure is supplied by section 41, which provides: “ (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 oor union representative of his choice present during this explanation. (2) Notwithstanding any other provision of this Part, an employer shall, before terminating the employment of an employee or summarily dismissing an employee under section 44(3) or (4) hear and consider any representations which the employee may on the grounds of misconduct or poor performance, and the person, if any, chosen by the employee within subsection (1), make." 28. In Postal Corporation of Kenya v Andrew K. Tanui [2019] eKLR, the Court of Appeal distilled four elements that must be discernible for the procedure to pass muster: an explanation of the grounds of termination in a language the employee understands; the reason for which the employer is considering termination; the employee's entitlement to the presence of another employee of his choice when the explanation is made; and the hearing and consideration of any representations made by the employee and the person chosen by him. 29. The right to be heard under section 41 is not a formality to be ticked o. A hearing is only meaningful where the employee knows the case against him, has the material on which the employer relies, has adequate time to prepare his answer, and has a fair opportunity to test the evidence against him. A hearing without these is a hearing in name only. Procedural fairness is now a constitutional imperative 30. It must also be emphasised that procedural fairness in disciplinary processes is no longer merely a statutory requirement. It is a constitutional imperative, anchored in Article 41 on fair labour practices, Article 47 on fair administrative action and Article 50 on fair hearing. The Supreme Court put the matter beyond doubt in Judiciary & 2 others v LMN (Petition E040 of 2024) [2025] KESC 53 (KLR), opening its judgment thus: “ We begin this judgment by declaring that the fairness of any disciplinary process is today a constitutional imperative, irrespective of the status of the ocer involved." 31. In the same decision, the Supreme Court restated that an employee facing disciplinary action must be informed of the basis of the complaint, be given reasonable time to defend himself, have access to the relevant documents, and be accorded an opportunity to cross-examine the witnesses whose evidence is relied on against him. Addressing a prescribed minimum notice period, the Court held: “ There is a strict obligation on the Committee or Panel to aord a minimum notice period of fourteen days, which must be in writing. It is immaterial that the respondent proceeded https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2731/eng@2026-09-30 6

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without raising an objection. Failure to comply with a mandatory timeframe renders the proceedings procedurally unfair." 32. Though the Supreme Court was there considering a statutory instrument, the principle is of general application. Where the employer has, by its own instrument, xed a minimum period within which an employee must be notied of a hearing, or supplied with the evidence against him, that period is the measure of what the employer itself considers to be reasonable time. An employer that falls short of its own standard cannot be heard to say that the employee had ample time. Why human resource manuals and their provisions exist 33. It is important to say something about the place of human resource policies in the employment relationship. An employer's human resource manual and its disciplinary procedure do not exist for decoration. They exist to promote equity, so that like cases are treated alike; to guard against discrimination, so that the process does not bend according to who the employee is; to provide certainty and consistency, so that employer and employee alike know in advance the steps that will be followed; and, ultimately, to secure industrial harmony. In the instant matter, the Respondent's Disciplinary Policy and Procedure states its own aim in these words: the policy and procedure "are designed in a manner which is non-discriminatory and which is fair, consistent and eective." Clause 4 of the Claimant's contract also bound him to abide by the Respondent's code of conduct and human resource policies. 34. An employer who departs from its own policy in the case of a particular employee undermines every one of these values. Such a departure is, in my view, a strong indicator of procedural unfairness, and in an appropriate case, of an unfair labour practice. A policy binds the employer that made it as much as it binds the employees to whom it applies. The challenge to the authenticity of the Disciplinary Policy 35. Before turning to the process itself, I must deal with the Respondent's pleading that the Claimant fraudulently created a fake policy after the disciplinary hearing. Fraud is a serious allegation. It must not only be specically pleaded but also strictly proved, on a standard higher than a mere balance of probabilities, though not beyond reasonable doubt. The Respondent did not discharge that burden, and for several reasons I am not persuaded that the Manual produced by the Claimant was a fabrication. 36. First, the Respondent's own witness, under cross-examination, acknowledged the Respondent's Human Resource Policy Manual and the provision for ve days in it. Second, the Respondent's own termination letter states that the hearing "was conducted as per the Disciplinary Process" and that the disciplinary committee recommended action "as per the disciplinary policy and the stipulations of the Employment Act." The Respondent cannot invoke a disciplinary policy to justify its decision and at the same time deny that the policy existed. Third, the Claimant's handover notes, which are part of the Respondent's own bundle and which were received on its behalf, record that he handed over HR policies including "Disciplinary and Grievance Handling Policies." The Respondent did not produce any other version of its disciplinary policy to contradict the one before the Court. Fourth, the document the Respondent impugned is described in its list as a "Disciplinary Policy 2023 document", whereas the Manual on which the Claimant relies is dated 1st March 2013. No evidence was led to connect the two, and no forensic examination was oered. Lastly, the allegation was not pursued in the Respondent's submissions at all. 37. I therefore nd that the Human Resource Policy Manual containing the Disciplinary Policy and Procedure dated 1st March 2013 was the Respondent's applicable policy at the material time. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2731/eng@2026-09-30 7

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The process the Claimant was taken through 38. By a letter dated 30th August 2023, the Respondent issued the Claimant with a notice to show cause, setting out the concerns it had over his dealings with Tandem and requiring a written explanation within forty-eight hours. The Claimant responded the same day. The issuance of the notice to show cause was a good start for the Respondent. However, it faltered on the way. 39. The invitation to the disciplinary hearing is dated Monday, 11th September 2023. It scheduled the hearing for Thursday, 14th September 2023. Clause 7 of the Disciplinary Procedure provides that "the individual will be given a minimum of 5 working days notice of the disciplinary meeting." As asserted by the Claimant, and as admitted by the Respondent's witness, the invitation did not allow him the ve days provided for in the Respondent's Human Resource Policy Manual. He had two clear working days. This was a clear departure from the Respondent's own policy, and, in light of LMN (supra), a departure that went to the root of the fairness of the hearing. 40. Clause 9 of the Disciplinary Procedure requires that "all relevant facts and evidence will be made available to the employee at least 5 working days prior to the disciplinary meeting." Clause 5 of the Annex on conducting a disciplinary meeting is even more explicit: all documentation that will be used as evidence, including witness statements, "will already have been made available to the individual prior to the disciplinary meeting taking place (copies will have been sent with the invite to disciplinary meeting letter)." The Respondent's witness admitted under cross-examination that the documents on which the Respondent was relying were not given to the Claimant at least ve days before the hearing, but at the hearing itself. The Respondent's own termination letter conrms as much, stating that the evidence, "including documentation and statements from various employees", was "made accessible to you during the hearing." The minutes record that the Claimant "was presented with hard-copy statements" of Joseph, Suleiman, Christine, Noor and Hussein at the hearing. 41. An employee who is handed the evidence against him on the oor of the hearing, and is expected to answer it there and then, has not been given a fair opportunity to defend himself. He cannot study the statements, compare them with the documents in his possession, or gather the material that would rebut them. This is exactly what the Respondent's own policy sought to prevent. 42. There is more. The accuser was not named. The Claimant's evidence, which was not displaced, was that the person who lodged the allegations against him was never disclosed, though he asked, and he therefore did not have an opportunity to confront and cross-examine him. Further, the Respondent's witness admitted under cross-examination that although the Respondent relied on statements by witnesses, those witnesses were not availed to face the Claimant. The termination letter is explicit that the panel relied on those statements: on the scope given to Tandem, it says that "statements from Suleiman and Noor show that they did not partake in the brieng meeting as alluded in your show cause response ... It can therefore be deduced that the claim in question is false." The Claimant was thus found to have told a falsehood on the strength of statements whose makers he never had the chance to question. 43. The Claimant further testied that he asked that some of the witnesses, in particular the Head of Operations, Mr. Noor, and the IT Manager, Ms. Christine, be called to the hearing for crossexamination, and that he asked for time to go through the documents with which he had been served. Both requests were declined. The minutes as amended by the Claimant record his statement that the statements "were an ambush" and that he wanted time to go through them, and that he "wished they be brought into the hearing." The Respondent did not adduce any evidence to the contrary. Clause 12 https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2731/eng@2026-09-30 8

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of the Annex to the Respondent's policy itself contemplates an adjournment where new evidence is produced. The refusal of both requests speaks to procedural unfairness. 44. I must also observe that the termination letter introduced matters that were not part of the notice to show cause, among them the allegation that the Claimant failed to have the shortlisted candidates for the IT Manager's position interviewed by the Managing Director or a Senior Director, and the allegation that he engaged the most junior IT employee in the matter. An employee can only answer a case of which he has been notied. To dismiss him on grounds that were not put to him in the notice to show cause oends the very rst requirement of section 41. 45. Further, clause 1 of the Annex to the policy provides that a disciplinary meeting will normally be held by a panel chaired by a manager "who has not been previously involved in the matter." The panel here included Mr. Naveed Ari, the very Director whose instructions to the Claimant lay at the heart of the charges, and the Head of Finance, Mr. Lalindra De Silva, under whose department the payment to Tandem was approved. Mr. Ari also signed the termination letter. The Director thus became, in eect, the complainant, a witness and a judge in the same cause. And whereas clause 18 of the policy allows an employee seven working days within which to appeal, the termination letter allowed the Claimant forty-eight hours. 46. The Respondent's answer is that the Claimant was informed of his rights to be accompanied and to call witnesses, and that he fully participated in the hearing. Participation in a hearing that is awed at its foundation does not cure it. The question is not whether the employee attended and spoke, but whether he was given a fair opportunity to meet the case against him. He was not. 47. All this leads to an inevitable conclusion. The Respondent failed to give the Claimant the notice that its own policy prescribed; it failed to supply him with the evidence in advance; it relied on the statements of persons whom he had no opportunity to cross-examine; it did not disclose his accuser; it refused his reasonable requests for an adjournment and for the attendance of witnesses; and it dismissed him in part on matters not raised in the notice to show cause. I nd that the termination of the Claimant's employment was procedurally unfair. Substantive justication: what is a valid and fair reason? 48. Section 43(1) of the Employment Act requires the employer, in any claim arising out of termination, to prove the reason or reasons for the termination, failing which the termination is deemed unfair within the meaning of section 45. Section 43(2) provides that the reasons for termination are the matters that the employer, at the time of termination, genuinely believed to exist and which caused it to terminate the employee's services. Section 45(2) then provides that a termination is unfair if the employer fails to prove that the reason is valid, and that it is a fair reason related to the employee's conduct, capacity or compatibility, or based on the operational requirements of the employer. 49. The Respondent relies heavily on the formulation in Kenya Revenue Authority v Reuwel Waithaka Gitahi & 2 others (supra), that the employer need only prove the reasons it genuinely believed to exist, a partly subjective test. That is a correct statement of the law, but it must not be misunderstood. The belief must be genuine, and it must be reasonably held on the material that was before the employer. A belief that rests on nothing, or that is contradicted by the employer's own documents, is not a genuine belief within the meaning of section 43(2). Further, the reason must be both valid and fair. A reason is valid where it is founded on facts that exist and that the employer is able to prove. A reason is fair where, in all the circumstances, it is one on which a reasonable employer would act to terminate the employment. Section 45(4)(b) underscores the point: a termination is unfair where, in https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2731/eng@2026-09-30 9

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all the circumstances, the employer did not act in accordance with justice and equity in terminating the employment. 50. The termination letter of 19th September 2023 cites the following, in summary: that rather than work with ODC, the Claimant contracted Tandem "without following the standard procurement procedures and without seeking requisite approval from the Director"; that he varied the scope of the Director's instructions and gave Tandem no written instructions, "contrary to procurement procedures"; that he "failed to adhere to standard procurement procedures, concerning price negotiations with the supplier"; that he failed to conrm delivery of the services before payment; that he engaged the most junior IT employee; that he excluded the Managing Director from the recruitment decision on the Head of IT; and that his claim that the scope was agreed at a conference call was false. These, it concluded, amounted to "gross negligence" and "a failure to follow instructions." The email crisis and the Director's instructions 51. That there was a crisis with the Respondent's email system in May 2023 is a matter that is not disputed. The Respondent pleads it, the Claimant testied to it, and the minutes of the disciplinary hearing are replete with references to it. 52. It is also not in dispute that the Claimant was given some instructions by the Director, Mr. Naveed Ari, regarding the need for the problem to be resolved. The Respondent's own termination letter acknowledges it: "On 8th of May 2023, a Director of the Company Mr Naveed instructed you to aid the urgent resolution of a breakdown in the email system." What is in controversy is the scope of those instructions. The Claimant's evidence is that the Director told him to "do all that you can do as we need to get back online", and the minutes, as amended by the Claimant, record that the Director wanted the emails "up and running without any further delay at any cost." The Respondent's position, on the other hand, has not been consistent. Its Memorandum of Response pleads that the Claimant was tasked only "to speed up the recruitment of an Information Technology (IT) Manager", while its termination letter says that he was instructed "to aid the urgent resolution of a breakdown in the email system." 53. The allegation that the Claimant overstepped the instructions could only be answered by the person who gave them, the Director. He was not called to testify. No explanation was oered for his absence. He was not a stranger to the proceedings: he was a member of the disciplinary panel, he signed the termination letter, and his account of what he said to the Claimant is the very foundation of the charge that the Claimant exceeded his authority. The Respondent's witness could only speak to the instructions second-hand. 54. The failure to call the Director did not help but damaged the Respondent's case. Sections 107 to 109 of the Evidence Act place the burden of proving a fact on the party who asserts it. Under section 47(5) of the Employment Act, the Respondent bore the burden of justifying the grounds for the termination. Where a party fails, without explanation, to call a witness who is within its control and whose evidence goes to the heart of the matter in issue, the Court is entitled to infer that the evidence of that witness, if called, would not have supported that party's case. The principle has long been settled, as stated in Bukenya & others v Uganda [1972] EA 549. I draw that inference here. The Respondent has not proved that the Claimant's instructions were conned in the manner it now contends, or that in engaging external help he acted outside what the Director had asked him to do. 55. It bears noting that the Claimant was the Head of Human Resources. The Respondent's witness conceded that the Claimant was not an IT professional and that his job description did not include resolving IT breakdowns. The termination letter itself reminds him that "as Head of HR, you are not in charge of IT." It is dicult to see on what basis an employee who is drawn by a Director into a https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2731/eng@2026-09-30 10

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technical emergency outside his function, and who acts on that Director's urgent instruction, can then be dismissed for gross negligence in the performance of a duty that was not his under his contract. Section 44(4)(c) of the Act, on which the Respondent relies, speaks of work "which it was his duty, under his contract," to have performed carefully and properly. A non-existent procurement policy 56. The thread that runs through the termination letter is the allegation that the Claimant breached "standard procurement procedures." The Respondent's Memorandum of Response similarly pleads that ODC and Safaricom had been engaged "through the correct channels" and that the Claimant failed to show "that the proper channels of procurement were followed." 57. Yet the Respondent's witness admitted in his evidence under cross-examination that the Respondent did not have a procurement policy at all. No procurement policy, manual, circular or other document describing the procedure allegedly breached was produced. The minutes themselves record the Claimant pointing out to the panel "the lack of procurement policy and procedure as the main issue that needs to be addressed", and recommending that one be developed. The panel's own HR consultant is recorded as acknowledging that some engagements of suppliers in the Respondent's business "are not formally engaged." 58. This must be stated clearly and boldly. It cannot be a valid and fair reason to accuse an employee of breaching a policy that did not exist, and then to terminate his employment on that account. A procedure that has never been prescribed cannot be breached. An employee can only be held to a standard that has been set and made known to him. To dismiss an employee for failing to comply with an unwritten, undened and unproduced procedure is to punish him by reference to a standard that the employer is free to dene after the fact. That is the very antithesis of a valid reason. Three of the reasons in the termination letter, which are built on the alleged breach of "standard procurement procedures", fall away on this ground alone. Was the engagement of the service provider solely the Claimant's doing? 59. The Respondent's case was premised on the proposition that the Claimant single-handedly engaged Tandem, and that any lapse in that engagement must therefore be attributed to him alone. The notice to show cause put it expressly: "Any lapses and deviations from contractual procedures must therefore be attributed to you." Considering the material placed before the Court, it is not dicult to conclude that the Respondent did not prove that the engagement of the service provider was done solely, or at all, by the Claimant acting alone. I say so for the following reasons. 60. First, the Claimant's consistent account, from his response to the notice to show cause, through the hearing, to his evidence before this Court, is that he took the Director's instruction to the Head of Operations, Mr. Noordeen, under whose docket IT fell, and that the scope of the work was discussed at a conference call held in Mr. Noordeen's oce, in which the IT ocer, Suleiman, briefed Tandem on the problem. The only material contradicting this account is the statements of Noor and Suleiman, which were not produced before this Court, and whose makers were neither called at the disciplinary hearing nor before this Court. Their untested statements cannot be preferred over the sworn and tested evidence of the Claimant. 61. Second, the Respondent's own minutes record that Suleiman shared IP addresses with Tandem, and that Tandem sent an email to Suleiman to conrm whether the issue had been resolved by ODC. The Claimant's response to the notice to show cause exhibits the call log and WhatsApp exchanges between Suleiman and Tandem. The Respondent's IT personnel were, therefore, plainly in contact with Tandem. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2731/eng@2026-09-30 11

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62. Third, the Claimant's response to the notice to show cause, and his email of 23rd August 2023 to the Head of Finance, show that Tandem's report and invoices were received by the new IT Manager, Ms. Christine, the Head of Operations and the Finance Controller, all of whom were in the picture. The Claimant's unchallenged evidence is that he did not approve the payment. No document was placed before the Court linking him to the approval or processing of the payment of Kshs. 370,000. The payment was approved and processed by the Finance Department, whose head sat on the panel that tried the Claimant. 63. Fourth, the allegations relating to Tandem's recruitment fee are similarly answered by the Respondent's own documents. The emails of April 2023 show that the Claimant forwarded Tandem's proposal to the Head of Finance, that the terms of one month's gross salary were discussed with the Head of Finance before they were agreed, and that the Head of Operations recommended the candidate and copied the Managing Director, Mr. Fahim Ahmed. The recruitment was, as the Claimant described it, the work of a panel of which he was one member. 64. In these circumstances, the Respondent could not genuinely and reasonably have believed that the engagement of Tandem, and any loss arising from it, was solely the Claimant's doing. If, as the Respondent contends, Tandem did no ascertainable work and yet invoiced and was paid Kshs. 370,000, then the failure lies with the system of controls that allowed the invoice to be paid, and with the departments whose responsibility it was to verify the work. It cannot be laid at the feet of one employee who, on his unchallenged evidence, neither approved nor processed the payment. The minutes of the disciplinary hearing 65. The Respondent's case on substance leaned heavily on the minutes of the disciplinary hearing. In crossexamination, the Respondent's witness admitted that the minutes indicated that they were subject to change. The email of 18th September 2023 from the secretary to the hearing, Ms. Lydia Dindi, refers to "the last edition being Lalindra's", and states that only she could make changes "after you highlight and we agree." The Claimant's emails of the same day contain extensive amendments, and his evidence, which was not displaced, is that his responses at the hearing were omitted from the minutes as initially prepared. 66. Can minutes that are, on their face, subject to change, that exist in more than one version, that were last edited by a member of the panel, and whose accuracy was contemporaneously disputed by the employee, be relied on as a true reection of what happened at the disciplinary hearing? No. Minutes of a disciplinary hearing are meant to be an accurate and nal record of what transpired. Where, as here, the record is uid, the Court cannot treat it as a reliable foundation for the ndings that the Respondent says it made against the Claimant. In any event, even the minutes as presented by the Respondent record the Claimant's account of the conference call, of Suleiman's dealings with Tandem, and of the lack of a procurement policy, matters that undermine rather than support the reasons for the termination. Conclusion on substantive justication 67. Pulling these strands together: the Respondent accused the Claimant of breaching a procurement policy that did not exist; it accused him of exceeding the instructions of a Director whom it did not call to testify; it attributed to him alone an engagement and a payment in which, on the evidence, its IT, Operations and Finance functions were all involved; and it relied on minutes that were, on its own showing, subject to change, and on statements of persons who were never subjected to crossexamination. I nd that the Respondent has failed to prove that it had a valid and fair reason to terminate the Claimant's employment. The termination was substantively unfair. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2731/eng@2026-09-30 12

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68. In the upshot, I nd and hold that the termination of the Claimant's employment was both procedurally and substantively unfair. Whether the Claimant is entitled to the reliefs sought Declaration 69. Having found as above, the Claimant is entitled to a declaration that the termination of his employment was both substantively and procedurally unfair. Reinstatement 70. The Claimant prayed for unconditional reinstatement. Under section 12(3)(vii) of the Employment and Labour Relations Court Act, the Court may order reinstatement of an employee "within three years of dismissal." The Claimant's employment was terminated on 19th September 2023. That period has since lapsed. In any event, reinstatement is not automatic upon a nding of unfair termination. Under section 49(4) of the Employment Act, the Court must consider, among other things, the practicability of reinstatement and the common law principle that there should be no order for specic performance in a contract for service except in very exceptional circumstances. The Claimant held a senior position of trust that reported directly to the Managing Director, and the relationship between the parties has, by their own accounts, broken down. This is not a case for reinstatement. The prayer is declined. One month's salary in lieu of notice 71. The termination letter did not give the Claimant notice. Having found that the termination was unfair, I award the Claimant one month's salary in lieu of notice, Kshs. 400,000. Compensation under section 49(1)(c) 72. Under section 49(1)(c) of the Employment Act, the Court may award compensation for unfair termination of up to twelve months' gross salary. The award is discretionary, and the discretion is to be exercised judicially, having regard to the factors set out in section 49(4) and the circumstances of the particular case. 73. In the Claimant's favour, the termination was both procedurally and substantively unfair, and the procedural lapses were not technical; they went to the heart of his right to be heard, in clear disregard of the Respondent's own policy. He held a senior position. The termination letter itself acknowledges that he had no previous disciplinary record. He was dismissed on accusations of gross negligence and, in the notice to show cause, of possible self-interest, which, as I have found, were not established. Such accusations, against a senior human resource professional, are bound to weigh on his reputation and his prospects of securing comparable employment. 74. On the other hand, the Claimant had served the Respondent for a little over nine months, from 8th December 2022 to 19th September 2023. The length of service is a relevant consideration under section 49(4). Further, the Claimant was not entirely blameless in the events that led to his termination. By his own account at the hearing, he engaged Tandem without a quotation or an agreed cost, and he agreed with the panel that there was a lack of alignment with Tandem on the nature of the services to be rendered. While these do not amount to a valid reason for termination, they are relevant to the extent of compensation under section 49(4)(k). 75. Balancing these considerations, I nd that an award of six months' salary is fair and just. I award the Claimant compensation of Kshs. 2,400,000. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2731/eng@2026-09-30 13

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Underpayment for services rendered to the sister companies 76. The Claimant sought Kshs. 10,320,000 for services rendered to the Respondent's sister companies. The internal memo of 14th March 2023 shows that he was designated Group Head of Human Resources and took up that responsibility. But clause 3 of his contract provided that, because of the dynamic nature of the Respondent's activities, his obligations would "inevitably vary and develop from time to time", and that he would carry out duties within his capabilities as the Respondent might assign. There is no evidence that the parties agreed on any additional remuneration for the group role, and the Court cannot write for the parties a bargain they did not make. The claim was pleaded without particulars, and the gure in the submissions is not founded on any agreed or proven rate. The claim is not proved and is dismissed. Aggravated and exemplary damages 77. The compensation awarded under section 49(1)(c) is the statutory remedy for unfair termination, and it takes into account the circumstances of the termination, including the injury to the Claimant's reputation. The Claimant did not demonstrate conduct of the Respondent, outside the unfair termination itself, that was so oppressive, arbitrary or high-handed as to warrant aggravated or exemplary damages. The claim is declined. Apology and deletion of records 78. No legal basis was laid for an order compelling the Respondent to apologise or to delete its records relating to the Claimant's termination. The declaration that the termination was unfair is sucient vindication. The prayer is declined. Certicate of service 79. Section 51 of the Employment Act obliges an employer to issue a certicate of service to an employee whose employment has terminated, unless the employment continued for less than four consecutive weeks. The Respondent concedes the Claimant's entitlement. It shall issue him with a certicate of service. Costs and interest 80. Costs follow the event. The Claimant has substantially succeeded and is awarded the costs of the suit. Interest shall accrue on the sums awarded at court rates from the date of this judgment until payment in full. G. Disposition 81. In the upshot, judgment is entered for the Claimant against the Respondent in the following terms: (a) A declaration is hereby issued that the termination of the Claimant's employment by the Respondent was both substantively and procedurally unfair; (b) The Respondent shall pay the Claimant the following sums: (i) One month's salary in lieu of notice: Kshs. 400,000; (ii) Compensation under section 49(1)(c) of the Employment Act, being six (6) months' salary: Kshs. 2,400,000; Total: Kshs. 2,800,000; https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2731/eng@2026-09-30 14

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(c) The sums in (b) above shall be subject to statutory deductions, if any, applicable in law; (d) Interest shall accrue on the sums in (b) above at court rates from the date of this judgment until payment in full; (e) The Respondent shall issue the Claimant with a certicate of service in terms of section 51 of the Employment Act within thirty (30) days of this judgment; (f) The prayers for reinstatement, underpayment for services rendered to the Respondent's sister companies, aggravated and exemplary damages, and an apology and deletion of records are dismissed; (g) The Respondent shall bear the costs of the suit. It is so ordered. DATED, SIGNED AND DELIVERED AT MOMBASA THIS 30TH DAY OF SEPTEMBER 2026. OCHARO KEBIRA JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2731/eng@2026-09-30 15

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