Lorna Chepng'eno v KCB Bank Kenya Limited

(d) One month salary in lieu of notice ……… Kshs.140,000/=. (e) Certificate of service. (f) Costs of the suit. (g) Interest on (b), (c), (d) & (f) at Court rates. (h) Any other relief that this Court may deem fit to grant in the circumstances. 2. The Claimant pleaded, inter-alia:(a) that she (the Claimant) was employed by the Respondent on 23rd July, 2008 as a sales DRAFT representative vide a contract dated 21 st July, 2008, and rose over time to the rank of an Assistant Manager; to which she was confirmed vide a letter dated 16th January, 2016. (b) that at the time of termination, the Claimant was stationed at Milimani KCB Branch. (c) that around March 2020 when Kenya recorded its first cases of Covid-19, the Claimant was on sick leave, and that on 26th March, 2020, she received a text message from the Operations Manager Milimani Branch asking her not to JUDGMENT Nairobi ELRC Cause No. E633 of 2021Page 2 of 35

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resume work, but to instead proceed on leave as she was not a critical staff. (d) that the Claimant proceeded on 13 days’ annual leave, during which period she travelled to her permanent residence in Londiani, Kericho County. (e) that while on leave, the Government issued directives on containment of spread of Covid-19, restricting movement in and out of Nairobi Metropolitan Area for 21 days. (f) that in view of the said containment directives, DRAFT and in view of the fact that the Claimant was due to resume duty on 11th April, 2020, she wrote an email to the Respondent on 9th April, 2020 appreciating the Respondent’s offer to issue her with an inter county movement letter, and indicating to the Respondent that she was facing transport challenges. (g) that consequently, the Respondent allowed the Claimant to extend her leave to 22nd April, 2020; and further, vide an email dated 22nd JUDGMENT Nairobi ELRC Cause No. E633 of 2021Page 3 of 35

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April, 2020 allowed extension of the Claimant’s leave. (h) that on 12th May, 2020, the Respondent issued the Claimant with an inter-county movement letter of even date to assist in her travel to Nairobi. (i) that despite having the said letter, the Claimant could not get transport to Nairobi and on inquiring whether the Respondent was offering transport, she was informed that the Respondent was only offering the interDRAFT county movement letters. (j) that on 16th May, 2021, the Government extended the cessation of movement for another 21 days; and that the Claimant wrote an email to the Respondent on 18th May, 2020 communicating her inability to travel to Nairobi, and that she was on a look out for alternative solutions, including deployment to an alternative branch around her residential area. (k) that with the help of a friend who had a private car, the Claimant was able to travel to Nairobi on JUDGMENT Nairobi ELRC Cause No. E633 of 2021Page 4 of 35

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16th June, 2020; and that on reporting to work on 17th June, 2020, she was received by the Operations Manager (Ms. Rose Mbaya), but was informed by the Branch Manager that she was neither allowed to be in the Branch nor allowed to touch the Bank’s assets or access the Bank’s systems, and was directed to report to the Human Resource Department for further directions. (l) that at the Human Resource Department, the Claimant was advised to talk to the Head of DRAFT Employee Relations and Wellness (one Robley) who asked the Claimant to go back to the Branch Manager and ask her to give her the letters which were in her possession. (m) that the Claimant went back to the Branch Manager, who handed her two letters dated 28th May, 2020 and 2nd June, 2020 respectively. That the letter dated 28th May, 2020 required the Claimant to report to work within five days thereof or show cause for her absence, while the letter dated 2nd June, 2020 indicated that JUDGMENT Nairobi ELRC Cause No. E633 of 2021Page 5 of 35

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the Claimant had been taken to have deserted employment, and that her name had been removed from the payroll, having failed to respond to the letter dated 28 th May, 2020. (n) that the Respondent proceeded to remove the Claimant from the payroll effective June 2020 without giving her a chance to be heard. (o) that vide an email dated 22nd June, 2020, the Claimant sought to know the status of her DRAFT employment, having not been given an opportunity to respond to the letter dated 28th May, 2020, which had been handed over to her on 17th June, 2020, way after the 5 days’ timelines within which she was required to show cause. (p) that the Respondent responded vide a letter dated 2nd July, 2020, informing the Claimant that the decision in the Respondent’s letter dated 2nd June, 2020 of removing the Claimant from the payroll still stood. JUDGMENT Nairobi ELRC Cause No. E633 of 2021Page 6 of 35

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(q) that vide a addressed to Manager memo all dated Branch 6th July, 2020, Staff, the Branch indicated/communicated that the Claimant was no longer an employee of the Bank, and that her colleagues should not allow her to access the bank premises and systems. (r) that the Claimant responded to the Claimant’s letter of 2nd July, 2020 and referred to the vagueness of the said letter as the letter of 2nd June, 2020 only referred to removal from the payroll, and was silent on the other aspects DRAFT of her contract, hence the Claimant’s inability to appeal the said decision. (s) that pursuant to a letter of demand by the Claimant’s Advocates dated 20th July, 2020, the Respondent wrote to the Claimant on 23rd July, 2020 asking her to show cause why she had failed to report back to work on 18 th May, 2020 and why disciplinary action could not be taken against her. (t) that the Claimant wrote to the Respondent on 27th July, 2020 requesting for access to the system in JUDGMENT Nairobi ELRC Cause No. E633 of 2021Page 7 of 35

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order to access the email correspondence between her and the Respondent, which access (to the system) was eventually given through the Sotik Branch Manager; and that she logged into the system as, and when she was authorised to do so [by the said Manager]. (u) that the Claimant was never allowed back to her work station since 17th June, 2020, and after the Memo dated 6th July, 2020 indicating that she was no longer an employee of the Respondent. DRAFT (v) that the Respondent’s decision to invite the Claimant for a disciplinary hearing on 5th November, 2020 vide a letter dated 23 rd October, 2020 was an afterthought as the memo dated 6th July, 2020 clearly indicated that the Claimant was no longer an employee of the Respondent. That the Claimant had been removed from the Respondent’s payroll; and that both the letter removing the Claimant from the payroll and the said Memo were never revoked. JUDGMENT Nairobi ELRC Cause No. E633 of 2021Page 8 of 35

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(w) that on 24th December, 2020, the Respondent issued a letter of termination on grounds of absence from duty; despite the fact that the Claimant had reported back to work on 17th June, 2020; and was not allowed to access the Bank premises. (x) that the Respondent terminated the Claimant’s employment back in June 2020, and that subsequent invitation to a disciplinary hearing in November 2020 and termination vide a letter of 24th December, 2020 amounted to DRAFT sanitization of an illegal process already undertaken to the detriment of the Claimant. (y) that termination of the Claimant’s employment was without lawful reasons/justification, and was wrongful and unfair. 3. Documents filed alongside the Claimant’s amended memorandum of claim included an affidavit in verification of the claim, the Claimant’s witness statement dated 3 rd August, 2021, and an amended list of documents dated 20 th August, 2021, listing 28 documents. JUDGMENT Nairobi ELRC Cause No. E633 of 2021Page 9 of 35

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4. The Respondent defended the suit vide a memorandum of reply dated 1st October, 2021; denying the Claimant’s claim. The Respondent, however admitted the fact of the Claimant having been employed by it as pleaded by her, and having been informed by the Claimant that she (the Claimant) was facing transport challenges; and that the Claimant extended the Claimant’s leave for a further 8 days to necessitate her return to work. 5. The Respondent further admitted having issued the DRAFT Claimant with an inter-county movement letter, that the Government extended the cessation of movement in and out of Nairobi by 21 days on 16th May, 2020 and subsequent thereto for further 30 days on 6th June, 2020, that the cessation of movement was lifted on 6 th July, 2020, and that the Claimant reported to work on 17th June, 2020. 6. The Respondent pleaded, inter-alia:(a) that the Claimant having failed to travel back to Nairobi despite having been furnished by the Respondent with an inter-county movement letter JUDGMENT Nairobi ELRC Cause No. E633 of 2021Page 10 of 35

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as licenced banks and financial institutions were exempted movements in from and out restrictions on of the Nairobi, Respondent issued her with a show cause letter dated 28th May, 2020 and with a letter dated 2nd June, 2020 informing her that she had been removed from the payroll. (b) that vide a letter dated 28th May, 2020 and served on the Claimant through registered post/mail, the Claimant had been given 5 days within which to justify her absenteeism, but DRAFT instead chose not to respond, prompting the Respondent to remove her from the payroll. (c) that removal of the Claimant did not amount to termination of her contract employment, and that she was shortly thereafter restored to the payroll and continued receiving her salary for the months of August 2020 to December 2020. That the Branch Manager’s memo dated 6th July, 2020 had no bearing in the matter. JUDGMENT Nairobi ELRC Cause No. E633 of 2021Page 11 of 35

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(d) that removal of the Claimant from the payroll was justified as she could not continue earning without working. (e) that vide her Advocates’ letter dated 20th July, 2020, the Claimant sought clarification on the status of her employment/whether her contract of employment had been terminated; and that she was on 23rd July, 2020 served with yet another show cause letter dated 23rd July, 2020, prompting another letter from the Claimant’s Advocates, dated 27th July, 2020. DRAFT (f) that vide a letter dated 3rd August, 2020, the Respondent confirmed that the Claimant was still its employee, and advised that she responds to the show cause letter dated 27 th July, 2020, which advise the Claimant ignored. (g) that the Respondent issued the Claimant with a letter dated disciplinary declined to 23rd November, hearing. submit That herself 2020 the for a Claimant to those proceedings; and that left with no option, the Respondent terminated JUDGMENT Nairobi ELRC Cause No. E633 of 2021Page 12 of 35 the Claimant’s

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employment vide a letter dated 24th December, 2020. That the Claimant received her salary upto, and including December 2020 when her contract of employment was terminated. (h) that the Respondent furnished the Claimant with the relevant materials to enable her to respond to the allegations against her, including giving her the Bank’s Sotik Premises and the Bank’s system. 7. Documents filed alongside the Respondent’s Memorandum of Reply included a written witness statement of Robley DRAFT th Ngoje dated 5 November, 2021 and an evenly dated list of documents, listing 34 documents. 8. Trial is shown to have opened before Justice Dr. Jacob Gakeri on 5th February, 2024. adopted her filed witness The Claimant testified and statement, which basically replicates the averments in the amended claim, as her testimony. She also produced in evidence the documents referred to in paragraph 3 of this Judgment. JUDGMENT Nairobi ELRC Cause No. E633 of 2021Page 13 of 35

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9. Cross-examined, the Claimant testified:(a) that her leave was to commence on 27th March, 2020, that she travelled to Londiani on 30th March, 2020, that she travelled after Legal Notice No. 36 of 2020 containment measures). (on Covid-19 That she was to resume work on 11th April, 2020, but the leave was subsequently extended to 22nd April, 2020. That the Respondent considered extending the leave because as a Marketer, the Claimant was still working as customers would call her even DRAFT when she was on leave. (b) that the letter of movement (inter-county movement letter) was issued to the Claimant on 12th May, 2020, but she had no means of transport as she had no vehicle, and that she asked for more time to look for transport. (c) that the Claimant travelled back to Nairobi on 16th June, 2020, unaware, that the issue of her not being at the work place had arisen. That she had not received the letters dated 28 th May, 2020 JUDGMENT Nairobi ELRC Cause No. E633 of 2021Page 14 of 35

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and 2nd June, 2020 respectively. That she received them on 18th June, 2020. (d) that the letter dated 6th July, 2020 was not addressed to her. (e) that she received a show cause letter dated 23 rd July, 2020 and responded to the same vide her Advocates’ letter dated 27th July, 2020. (f) that she received a termination letter dated 24th December, 2020; and that the termination letter was an attempt to sanitize the earlier termination of the Claimant’s employment. DRAFT 10. Re-examined, the Claimant testified that her leave had been extended on 12th April, 2020 (by email) because there was no public transport. That customers would call her on loans and balances. That the email dated 18th May, 2020 evidences lack of transport for the Claimant to go back to Nairobi. That the Claimant was given 2 letters on reporting to work on 17th June, 2020 and that the Branch Manager told her that she had been terminated. That she understood the email of 6th July, 2020 to be a termination. JUDGMENT Nairobi ELRC Cause No. E633 of 2021Page 15 of 35

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11. Defence case proceeded before me. The Respondent called one witness, Robley Ngoje (RW-1), who adopted his filed witness statement as his testimony and produced in evidence the documents referred to in paragraph 7 of this Judgment. 12. Cross-examined, RW-1 testified:(a) that the inter-county movement letter was sent to the Claimant by email on 12th May, 2020. That there was communication (between the Claimant DRAFT and the Respondent) by both email and post. (b) that no evidence of postage and email acknowledgement had been exhibited by the Respondent. (c) that the Certificate of Postage at page 82 of the Respondent’s trial bundle was on the termination letter (24th December, 2020). (d) that the reason for issuing a show cause letter was absenteeism; which began on 11th April, 2020 when the Claimant was expected on duty; though an email sent on 9th April, 2020 by her Branch JUDGMENT Nairobi ELRC Cause No. E633 of 2021Page 16 of 35

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Manager says that she was to resume on 16th April, 2020. (e) that the email dated 6th July, 2020 was by the Branch Manager, Emily Bett, Milimani Branch where the Claimant was based; who spoke for the Bank. (f) that the witness (RW-1) was not aware of any duties that were assigned to the Claimant after the Memo of 6th July, 2020. the Memo, the Claimant was That after only given credentials to access documents (on 29th July, DRAFT 2020) which she needed to respond to a show cause letter. (g) that the period after 6th July, 2020 was considered as a period of the Claimant’s absenteeism as she was not at her place of work. (h) that the Claimant provided reasons why she was unable to resume work (page 46 of the Respondent’s trial bundle). (i) that there was no communication post 6th July, 2020 directing the Claimant to resume work; JUDGMENT Nairobi ELRC Cause No. E633 of 2021Page 17 of 35

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and that the (Respondent’s) letter dated 23 rd July, 2020 asked the Claimant to explain her absence. (j) that the Claimant had tried to go back to work (at Milimani Branch) on 18th June, 2020. (k) that when the Claimant sought to access the email at the/her branch, access was given at Sotik Branch. That access had initially been denied because a bank is not a walk-in place. That the Respondent did not know the Claimant’s intentions; and that the Branch Manager had to exercise caution. DRAFT (l) that after the indication on 6th July, 2020 that the Claimant was no longer the Respondent’s employee, the Claimant was in November 2020 invited for a hearing, but she did not attend. (m) that the Claimant was not issued with a termination notice before termination. 13. Re-examined, RW-1 testified that the Respondent’s letter dated 23rd July, 2020 stated the main allegation/accusation against the Respondent as absence from duty. JUDGMENT Nairobi ELRC Cause No. E633 of 2021Page 18 of 35 That

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though the Claimant was granted access (to emails) on 29 th July, 2020, she did not respond to the show cause letter (dated 23rd July, 2020); and did not attend the disciplinary hearing. 14. The Respondent (RW-1) further testified that the memo dated 6th July, 2020 was addressed to all employees at Milimani Branch. The witness further testified that the Claimant was not entitled to service pay as she was a member of both NSSF and KCB Pension scheme, and had been paid Kshs.800,000/= being the employer’s DRAFT contribution. 15. It was RW-1’s evidence that the Claimant had absconded duty, and that termination notice could not, therefore, be issued. 16. Having considered the pleadings filed and the evidence adduced by both parties, issues that fall for determination, in my view, are:(a) Whether termination of the Claimant’s employment by the Respondent was unfair. JUDGMENT Nairobi ELRC Cause No. E633 of 2021Page 19 of 35

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(b) Whether the reliefs sought are merited. 17. On the first issue, for a termination of employment 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). DRAFT 18. On substantive fairness, Section 43(1) of the Employment Act provides as follows:“(1) In any claim arising out of a termination of a contract, the employer shall be required to prove the reason or reasons for the termination, and where the employer fails to do so, the termination shall be deemed to have been unfair within the meaning of Section 45.” JUDGMENT Nairobi ELRC Cause No. E633 of 2021Page 20 of 35

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19. Section 45(1) and (2)(a) of the Employment Act provides as follows:“(1) No employer shall terminate the employment of an employee unfairly. (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.” 20. On procedural fairness, Section 41 of the Employment Act DRAFT provides as follows:“(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 JUDGMENT Nairobi ELRC Cause No. E633 of 2021Page 21 of 35

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representative of his choice present during this explanation. (2) Notwithstanding any other provisions 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) DRAFT make.” 21. Procedural fairness is also extended to the mandatory requirement for issuance of a termination notice or payment in lieu thereof as provided in Section 35(1)(c) of the Employment Act. 22. In the present case, it was a common ground that the Claimant was employed by the Respondent Bank, and that as at the time of her termination, the Claimant was stationed at Milimani KCB Branch, Nairobi. JUDGMENT Nairobi ELRC Cause No. E633 of 2021Page 22 of 35 It is also undisputed

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that as at the time of the onset of Covid-19 Pandemic in Kenya in March 2020, the Claimant was on sick leave, and that on or about 27th March, 2020, the Claimant received communication from the Respondent’s Operations Manager instructing her not to report on duty, but to proceed on leave as she was not a critical staff. 23. The pleadings and evidence on record herein, which I have preceded to set out in this Judgment, show that as the said instructed leave was to end on 11th April, 2020, the Claimant travelled to her home in Londiani-Kericho County on 30th March, 2020; and that as a result of the DRAFT Government’s Covid-19 containment measures which restricted movement into and from Nairobi Metropolitan area; the Claimant was unable to return to Nairobi by 11th April, 2020, when her leave was set to end. 24. According to the evidence adduced by the parties, and as pleaded by the Claimant, the Claimant’s leave was extended by the Respondent to 16th April, 2020 and again to 22nd April, 2020. It was the evidence of both parties that due to the said containment measures, the Claimant remained at her Kericho home, and that on 12th May, 2020, the JUDGMENT Nairobi ELRC Cause No. E633 of 2021Page 23 of 35

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Respondent sent an inter-county movement letter to enable the Claimant to travel back to Nairobi (to work), as banks and other licenced financial institutions were not affected by the said containment measures. 25. The evidence presented by both parties demonstrates that even with the said inter-county movement letter sent to her by the Respondent as aforesaid, the Claimant had difficulties getting transport to Nairobi as she did not have a vehicle and, according to the Claimant, there was no public transport to Nairobi. The Claimant wrote as follows in DRAFT her email communication to her Branch Manager sent on 12th May, 2020:“Dear Emily, I acknowledge receipt [of] the letter. However, I have no means of transport at the moment given that there is no public transport to Nairobi as well as taxi services, private cars can only carry 2 passenger”. JUDGMENT Nairobi ELRC Cause No. E633 of 2021Page 24 of 35

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26. The Respondent sent an email to the Claimant on the same (date 12th May, 2020), stating as follows:“The Bank is not making transport arrangements. Once staff are issued with this letter, they have made their own way make to the office”. 27. The foregoing two emails communication were produced in evidence by both parties. 28. The Claimant further produced in evidence an email communication by her to her Branch Manager (Emily), sent DRAFT on 18 th May, 2020 explaining the difficulty she was experiencing in getting transport back to Nairobi, and the failed attempts made by her to get to Nairobi. The Claimant also exhibited another email (to the Respondent) sent on 14th May, 2020. 29. It is clear from the foregoing that during the period that the Claimant was stranded in Londiani (Kericho), courtesy of the Covid-19 containment measures, the Claimant was in constant communication with her employer, and that the Respondent appreciated the situation. JUDGMENT Nairobi ELRC Cause No. E633 of 2021Page 25 of 35

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30. Indeed, the Respondent pleaded that the Government extended the Covid-19 containment measures by 21 days on 16th May, 2020, and by a further 30 days on 16th June, 2020; and that cessation of movement was finally lifted on 6th July, 2020. 31. This Court takes judicial notice of the global Covid-19 Pandemic which paralysed the entire world transport systems, including air and road transport systems during the period in issue in the suit herein. DRAFT 32. The Claimant testified that she finally travelled back to Nairobi on 16th June, 2022 through the assistance of a friend who had a car; and that on going to her place of work on 17th June, 2020, she was denied access to the Bank’s premises (to her office) and to the bank’s systems; and that she was told by her Branch Manager that she had been terminated. 33. The Claimant further testified that she was on 17th June, 2020, handed 2 letters by her Branch Manager:- JUDGMENT Nairobi ELRC Cause No. E633 of 2021Page 26 of 35

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(i) One dated 28th May, 2020 calling on her to show cause on her absence within 5 days, and (ii) Another dated 2nd June, 2020 informing her that she had been removed from the payroll. 34. The Claimant testified that she had not received the said two letters before 17th June, 2020. 35. The Respondent (RW-1) testified that there were no postage certificates to show that the said two letters had been posted to the Claimant. DRAFT 36. Among the documents produced by the Respondent in evidence was an Internal Memo issued by the Claimant’s Branch Manager on 6th July, 2020. The said document states as follows:“EXIT OF LORNA CHEPNGENO Emily Bett To: Milimani Branch Staff Dear Colleagues, JUDGMENT Nairobi ELRC Cause No. E633 of 2021Page 27 of 35

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Kindly note the above staff is no longer our staff and you are not allowed to entertain her or to give her access to our back office whenever she shows up. Disciplinary action will be taken against any staff who breaks the above rules”. 37. RW-1 testified further that there was no evidence of any duties having been allocated to the Claimant post 6th July, 2020. The Claimant testified that she deemed her DRAFT employment to have been terminated on 17th June, 2020, and as confirmed by the Branch Manager’s foregoing Internal Memo. That the Respondent's purported show cause letter dated 23rd July, 2020, an invitation to attend a disciplinary hearing dated 4th November, 2020 and a purported termination letter dated 24th December, 2020 were an afterthought, and an attempt to sanitize an unlawful process that had already been undertaken. JUDGMENT Nairobi ELRC Cause No. E633 of 2021Page 28 of 35

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38. The Respondent’s witness (RW-1) testified that the aforesaid internal memo had, indeed, been issued by the Respondent’s Branch Manager, and that the Branch Manager spoke for the Respondent Bank. 39. RW-1 further testified that the reason for terminating the Claimant’s employment was absenteeism/deserting duty. Did the Claimant desert and/or abscond duty? What is desertion of duty? 40. The Court of Appeal in Romage Co. Kenya Limited – vs – Hudson Kidaha Kisigwa [2026] 1132 KLR defined DRAFT desertion of duty as follows:“27. The South African decision in Seablo – vs – Belgravia Hotel [1997] 6 BLLR 829 (CCMA) defined desertion as follows:“. . . desertion is distinguishable from absence without leave, in that the employee who deserts his or her post does so with the intention of not returning or, having left his or her post, subsequently formulates the intention not to return. On the other hand, an JUDGMENT Nairobi ELRC Cause No. E633 of 2021Page 29 of 35

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employer may deduce the intention of not returning to work from the facts of the case and should demonstrate the same. The facts may include a lack of communication from the employee, duration of absence, and attempts made to reach out or establish whereabouts of the employee. the Show cause notice to explain the absence may also be a factor to consider”. DRAFT 41. In Momanyi – vs – KK Security [2023] KEELRC 235 (KLR), the Court applied the foregoing definition and stressed that desertion does not deprive the employee of the right to procedural fairness. 42. The facts of the case herein do not demonstrate desertion/absconding duty on the part of the Claimant, who for good and verifiable reason, of which the employer was aware, could not manage to get transport back to her place of work. There was constant communication between JUDGMENT Nairobi ELRC Cause No. E633 of 2021Page 30 of 35

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the Claimant and the Respondent regarding lack of transport for the Claimant from Londiani (Kericho) to Nairobi. 43. The Claimant reported on duty on 17th June, 2020 and was denied access to her work place. Termination of her employment was confirmed vide the Internal Memo dated 6th July, 2020, which the Court was told was never revoked. The Claimant was never assigned duties after the date of the said Internal Memo. 44. The letters dated 28th May, 2020 and 2nd June, 2020 respectively were also never revoked. DRAFT 45. I agree with the Claimant that her employment was terminated on 17th June, 2020, and that the termination was confirmed vide the Internal Memo dated 6th July, 2020. Any subsequent purported disciplinary proceedings were meant to sanitize an already concluded process. 46. The Claimant was terminated as aforesaid without a valid reason, without notice, and without being given an opportunity to be heard on the allegations levelled JUDGMENT Nairobi ELRC Cause No. E633 of 2021Page 31 of 35

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against her. The termination was procedurally and substantively unfair. I so find and declare. 47. Having made a finding that termination of the Claimant’s employment was unfair, I award her the equivalent of six (6) months’ salary being compensation for unfair termination of employment. The Claimant’s payslips produced in evidence by the Respondent show that the Claimant was earning a gross monthly salary of Kshs.140,000/= at the time of termination. The equivalent of six month’s salary is Kshs.840,000/=, which I award to the Claimant. DRAFT 48. I also award the Claimant Kshs.140,000/= being one month salary in lieu of notice pursuant to Section 35(1)(c) of the Employment Act. 49. The prayer for issuance of a certificate of service pursuant to Section 51 of the Employment Act is allowed. 50. The prayer for service pay is declined pursuant to Section 35(6)(d) of the Employment Act as the Claimant is shown to have been a member of (contributor to) the NSSF. The Respondent (RW-1) testified that the Claimant had been a JUDGMENT Nairobi ELRC Cause No. E633 of 2021Page 32 of 35

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member of KCB Pension Scheme; and had already been paid by the said scheme. 51. The claim for damages for the remainder of the contract is declined, as it is not one of the reliefs provided for in Section 49(1) of the Employment Act. 52. In sum, and having considered written submissions filed on behalf of both parties herein, Judgment is hereby entered for the Claimant against the Respondent as follows:(a) Compensation for unfair termination … Kshs.840,000/=. DRAFT (b) Notice pay …………………………………… Kshs.140,000/=. Total ……………… Kshs.980,000/=. 53. The awarded sum shall be subject to Pay As You Earn (PAYE) tax pursuant to Section 49(2) of the Employment Act. JUDGMENT Nairobi ELRC Cause No. E633 of 2021Page 33 of 35

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54. The Claimant is awarded interest on the awarded sum, to be computed at Court rates from the date of this Judgment until payment in full. 55. The Respondent shall issue the Claimant with a Certificate of Service pursuant to Section 51 of the Employment Act, within 30 days of this Judgment. 56. The Claimant is awarded costs of the suit. DATED, SIGNED AND DELIVERED AT NAIROBI THIS DRAFT 2 ND DAY OF OCTOBER 2026 AGNES KITIKU NZEI JUDGE ORDER JUDGMENT Nairobi ELRC Cause No. E633 of 2021Page 34 of 35

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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. AGNES KITIKU NZEI JUDGE Appearance: No appearance for the Claimant Mr. Paul Kamara for the Respondent DRAFT JUDGMENT Nairobi ELRC Cause No. E633 of 2021Page 35 of 35

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