Arunda Oludhe v Bridge International Academies Foundation

employment agreement and should be struck off the Respondent's records. c) A declaration that the Respondent was bound by the Employment Contract and by an obligation to maintain an environment that afforded dignity and safety to its staff, and that breach of these obligations entitles him to remedies under the contract and the Laws of Kenya. d) Long service leave of Kshs. 17,482. e) Relocation from the workstation, Kshs. 9,000. f) Pay in lieu of notice, Kshs. 17,482. g) Accumulated remuneration at Kshs. 17,482 per month from September 2024 to the date of judgment, plus the Employee Child Benefit (Pupil ID 148287188) at Kshs. 4,570 per school term from January 2025. h) Reimbursement of expenses incurred at the Labour Office and in preparing this suit, Kshs. 18,000. i) Damages for wrongful dismissal and unfair termination equivalent to twelve months' salary, plus one year's Employee Child Benefit: Kshs. 209,784 + 13,710 = Kshs. 223,494. j) Aggravated damages for financial loss, Kshs. 100,000. k) Compensation for loss of dignity and mental anguish, Kshs. 1,000,000. l) Compensation for frustration of his right to fair administrative action, being Kshs. 1,000,000 for Page 2 of 45

page 2 of 45

failure to attend the conciliation meetings of 27 th November 2024 and 4th December 2024, and Kshs. 1,000,000 for failure to comply with demands to settle his notice pay. m) Compensation for defamation at Kshs. 3,000,000 for each of the four instances: the email of 6th December 2023, the WhatsApp message of 4th September 2024, the allegation in the notices of suspension and summary dismissal, and the statements made at the meeting of 7th September 2024. Compensation for unfair labour practices at Kshs. 100,000 for each of three instances: failing to implement and enforce workplace policies, resulting in the toxic environment complained of on 6 th December 2023; failing to follow the established disciplinary process; and keeping him in abeyance for so long. n) Costs of the suit with interest at court rates from the date of judgment until payment in full. o) Any other appropriate reliefs deemed just and fit to grant. Claimants’ Case 2 The Claimant avers that the Respondent employed him on 19th December 2013 under a written contract as a substitute teacher (Teacher ID T02712), working in its Page 3 of 45

page 3 of 45

various academies within Kenya. In 2021, he was posted to the Kamuthi–NBO academy in a fixed position. 3 He states that on 6th December 2023 he notified the Respondent of a toxic work environment at the Kamuthi– NBO academy particularised and the asked for complaint a as resolution. He defamation and psychological harassment of teachers at the academy. He contends that this grievance was never resolved. 4 The Claimant states that on 4th September 2024, a parent posted on the Respondent's WhatsApp group that her child had been punished at school. On 5 th September 2024, he was issued with a notice of suspension alleging that he had administered corporal punishment on a Grade 1 pupil. The notice set out the process to be followed, and he responded to it on 6th September 2024. 5 He avers that in the week after a parents' meeting held at the school on Saturday 7th September 2024, he received calls and messages from staff and parents. They informed him that the Respondent's Director of Schools and other staff had led the attendees in speaking adversely about his suspension and about him personally. On 18 th September 2024, the Respondent's supervisor of schools Page 4 of 45

page 4 of 45

also called him and intimated what had happened at that meeting. 6 It is the Claimant's case that on 20th September 2024 he was emailed a notice of summary dismissal dated 19 th September 2024, together with a certificate of service. The notice stated that the Respondent had investigated the matter further and concluded that his actions violated its policy and amounted to gross misconduct. The same day, he asked for the details leading to the dismissal, but no response was given. He appealed the dismissal on 24 th September 2024 and avers that the appeal has never been answered. 7 The Claimant states that on 13 th November 2024 he reported the matter to the Nairobi County Labour Office for conciliation. He avers that the Respondent failed, refused or neglected to attend the joint conciliation meetings of 27th November 2024 and 4th December 2024, which led to the filing of this suit. 8 The Claimant contends that the Respondent failed to implement its workplace policies and processes, which resulted in a toxic work environment. He asserts that this was contrary to its contractual obligation to provide a safe Page 5 of 45

page 5 of 45

and effective working environment and its promise to treat employees professionally and without discrimination. 9 He further contends that the disciplinary process was not conducted in accordance with the notices of suspension and dismissal, the Employment Contract or the Employment Act, 2007, and was therefore unfair and unlawful. 10 He avers that the terms of the suspension notice were never honored. He was never informed of the outcome of the investigations, invited to a hearing, given 24 hours' notice or allowed to be accompanied by a fellow employee, and his representations were ignored. 11 He asserts that the summary dismissal did not come from a fair and documented disciplinary process, but from the Respondent unilaterally investigating and concluding that he was guilty of gross misconduct. He adds that his appeal was never considered. 12 The Claimant avers that these failures caused him loss of dignity, great mental stress, anxiety, embarrassment and injury to his feelings. He attributes this to constant haranguing and defamatory Page 6 of 45 statements by the

page 6 of 45

Respondent's agents, parents and pupils, and to a disciplinary process he describes as a fishing expedition full of slander, humiliation and mistreatment. 13 On defamation, the Claimant contends that the Respondent ought to have protected him from defamatory statements and malicious falsehoods made during his employment. He asserts that these statements affected his standing in society and cost him job opportunities, and he identifies four instances: a) The defamation of staff complained of in his email of 6th December 2023, which he attributes to the work environment the Respondent enabled. b) The parent's WhatsApp message of 4 th September 2024. He avers it was never substantiated and was a malicious falsehood, and that the Respondent, as creator and administrator of the group, failed to inquire into its truth and provide closure. c) The allegation of corporal punishment in the notices of suspension and summary dismissal. He states it was never substantiated by documentation and that he was never given a chance to respond to it. d) The proceedings of the parents' meeting of 7 th September 2024. He contends Page 7 of 45 that the public

page 7 of 45

denunciation incited the whole school community against him, constructively terminated his employment and ruined his reputation, both locally and at the Respondent's other academies, since its disciplinary outcomes are circulated to other teachers as warnings. 14 The Claimant avers that the Respondent's failure to honour the conciliation invitations frustrated his right to fair administrative Employment action under Section and caused him Act 47 of the unnecessary expenditure, for which he seeks compensation. 15 He contends that since the disciplinary process did not comply with the employment agreements, it could not validly terminate termination his required contract. one Under month's that written contract, notice or payment of one month's salary in lieu. He therefore asserts entitlement to his monthly wages from September 2024 to the date of judgment, and to pay in lieu of notice. 16 The Claimant further asserts entitlement to three benefits under the Respondent's policies: long service leave, which accrued to employees with at least ten years of service; a relocation subsidy, since he was transferred to his last workstation; and the Employee Child Benefit, of which he was a beneficiary, for its unfair loss. Page 8 of 45

page 8 of 45

17 He avers that the Respondent's failure to conclude his separation and settle his terminal dues has caused him financial harm. He lists defaulted statutory contributions and denial of public services, listing on the CRB, a diminished credit score, penalties and interest on defaulted debts, and lost goodwill from lenders. He contends it is equitable that he be restored to his previous financial standing. 18 The Claimant contends that the summary dismissal was never validated employment and should not form part of his record. Relying on Article 35 of the Constitution, he asserts his right to the correction or deletion of untrue or misleading information. He is apprehensive that the unsubstantiated record of gross misconduct may be used against him by potential employers and should therefore be expunged. 19 The Claimant avers that the Respondent's failure to implement its policies, observe his terms of employment and remedy the breaches, whether internally or through the Labour Office, amounts to an unconscionable and oppressive bargain and an unfair labour practice for which he should be compensated. Page 9 of 45

page 9 of 45

20 The Claimant relies on Clause 28 (Waiver) of the Employment Contract, which provides that each party's rights and remedies are distinct, separate and cumulative. He urges the Court to consider and award each claim on its own merit. 21 The Claimant puts his total claim at Kshs. 15,685,458, plus remuneration from September 2024 to the date of judgment, costs, interest and other reliefs. Respondent’s Case 22 The Respondent opposed the claim through a Statement of Response dated 17th October 2025, filed by Wilbur Antony & Co. Advocates. It denies each allegation in the Statement of Claim, which it describes as disjointed and generated by Artificial Intelligence, save where expressly admitted. 23 The Respondent avers that it is a company limited by guarantee, incorporated on 21st February 2024 to operate community schools in Kenya. It states that between February and March 2024 it took over the Bridge International Academies community schools from Bridge International Academies Ltd, following a transfer of business operations, specified assets and liabilities, and employees. Page 10 of 45

page 10 of 45

24 On jurisdiction, the Respondent concedes that the Claimant is its former employee. However, his monthly consolidated salary was Kshs. 17,482, and that pursuant to Legal Notice No. 6024 of 2018 (Kenya Gazette Vol. CXX No. 74 of 22nd June 2018), the claim ought to be referred to the Chief Magistrate's Court for adjudication. 25 The Respondent denies that the Claimant was employed on 19th December 2013. It avers that he was employed as a teacher by Bridge International Academies Ltd on 19 th December 2023, and that his employment was transferred to the Respondent in March 2024, when he executed a new employment contract with it. It states that he worked until 19th September 2024, when he was summarily dismissed for gross misconduct. 26 The Respondent asserts that the gross misconduct was the administration of corporal punishment on pupils. It avers that this is prohibited by its Child Protection Policy and constitutes gross misconduct warranting summary dismissal under its Schools Staff Handbook. 27 The Respondent denies ever receiving any complaint from the Claimant on defamation or psychological harassment of teachers at the academy. It admits that a parent posted on 4th September 2024 that her child had been punished at school. Page 11 of 45

page 11 of 45

28 It also admits that the Claimant was served with a suspension letter dated 4th September 2024, suspending him without pay for ten days to allow investigations into the parent's allegation. It states that the suspension was consistent with the procedure prescribed in its Child Protection Policy for complaints of corporal punishment. It further admits that the Claimant responded to the notice. 29 The Respondent denies the Claimant's account of the parents' meeting of 7th September 2024 and of the call from its Schools Supervisor. It avers instead that the Schools Supervisor called the Claimant on 17 th September 2024 to summon him to a disciplinary hearing scheduled for 18th September 2024. During that call, the Supervisor informed him that investigations had been concluded and that the complainant pupil, along with other pupils, had disclosed that he had administered corporal punishment on them. 30 It is the Respondent's case that the hearing proceeded on 18th September 2024. At the hearing, the Claimant was notified of the findings of the investigations, was given an opportunity to be heard, and denied the accusations. 31 It avers that the disciplinary committee, comprising the Schools Supervisor and two School Leaders, reasonably determined that the Claimant had administered corporal Page 12 of 45

page 12 of 45

punishment in breach of policy and recommended his termination. 32 The Respondent admits issuing the notice of summary dismissal, but, denies that the Claimant sought details of the dismissal or appealed against it. It maintains that the disciplinary process complied with its Schools Staff Handbook and the Employment Act, and that the Claimant was well aware of that process. 33 The Respondent further denies that the work environment was toxic; it considers it remarkable that the Claimant claims to have appealed his termination while at the same time asserting that the workplace was toxic. 34 The Respondent denies that any failure on its part caused the Claimant stress, anxiety, embarrassment or injury to his feelings. It contends that if he suffered any such harm, he was the author of his own misfortune, having committed gross misconduct by administering corporal punishment on pupils. It further denies defaming the Claimant and denies each of the four instances of defamation he pleads. 35 On the conciliation, the Respondent admits that the Claimant reported the matter to the Nairobi County Labour Office. It states that the summary dismissal letter informed him that his final dues would be settled in the Page 13 of 45

page 13 of 45

subsequent payroll cycle after he completed the clearance process, in accordance with the Schools Staff Handbook. Those dues were his pay for days worked in September 2024 and his earned but unutilised leave days. 36 It avers that on 13th November 2024 it received a letter from the County Labour Officer setting out the Claimant's demand for notice pay, days worked in September 2024, accrued leave and other legal dues. By then, it had already paid his final dues at the end of October or beginning of November 2024, and it therefore considered the matter settled. 37 The Respondent admits that it declined to participate in the conciliation. It asserts that it did so because it reasonably determined the Labour Officer to be biased. It avers that despite being advised that the final dues had been paid, the Labour Officer made additional demands and threatened the Respondent with criminal prosecution when it sought substantiation of those demands. It states that it was the Respondent, through its advocates, that advised the Labour Officer that the dispute would best be adjudicated by this Court. 38 The Respondent contends that the dismissal was lawful in both reason and procedure. Since it was a summary dismissal for gross misconduct, it asserts that it was within its statutory prerogative to dismiss the Claimant without Page 14 of 45

page 14 of 45

notice or with less notice than that to which he was entitled. The Claimant is therefore not entitled to notice pay or to wages to the date of judgment. 39 It avers that under its relocation policy, payment is discretionary and depends on factors including whether the employee is relocated to a far-off academy. The Claimant's transfer from Kwa Njenga Academy to Kamuthi Academy was within Nairobi County, so he was ineligible. 40 It is the Respondent’s case under its Long Service Leave Policy, this leave is not earned leave. It is not paid out if unused, nor upon voluntary or involuntary separation, and must be applied for two months in advance. The Claimant never applied for it 41 It avers that the child benefit is a subsidy on termly fees for employees' children enrolled at a Bridge school, and it ceases on termination of employment, whether voluntary or involuntary. 42 The Respondent further avers that the procedure for settlement of final dues is set out in its Schools Staff Handbook, reiterated in the dismissal letter, and binding on the Claimant under his contract of employment. 43 On the prayer to expunge the record of summary dismissal, the Respondent contends that its decision to Page 15 of 45

page 15 of 45

terminate was not subject to any validation. Relying on Section 51(3) of the Employment Act, it asserts that the Claimant has no basis to claim prejudice to his future employability arising from his summary dismissal. 44 The Respondent denies all the declarations and monetary reliefs sought. It avers that the Claimant's gross monthly salary was Kshs. 17,482, amounting to an annual gross salary of Kshs. 209,784. It therefore contends that his prayers for compensation, and his total claim of Kshs. 15,685,458, exceed the limit imposed by Section 49(1)(c) as read with Section 50 of the Employment Act. 45 The Respondent maintains that the claim is convoluted and insubstantial. It contends that the pleadings appear to have been generated by Artificial Intelligence in a disjointed manner and do not conform to conventional pleading and prayer structure. It prays that the claim be struck out with costs to the Respondent. Evidence in Court 46 The Claimant, Arunda Oludhe, testified as CW1. He adopted his witness statement dated 25 th April 2025 as his evidence in chief. He produced as exhibits his documents dated 25th April 2025 and his supplementary list of documents dated 7th January 2026. Page 16 of 45

page 16 of 45

47 On cross-examination by Mr. Nyaega, CW1 confirmed that he was an employee of the Respondent. He confirmed that during his employment he was aware of the Respondent's handbook and its child protection policy, under which corporal punishment was forbidden. He also confirmed that teachers were regularly trained on child protection policies. 48 CW1 first stated that on 4 th September 2024 no complaint on corporal punishment was raised by a parent. He was then referred to paragraph 4 of his case summary at page 11. He conceded that it states that a parent raised a complaint concerning corporal punishment, which was posted on a WhatsApp group. He stated that he became aware of the complaint a day later. He added that the WhatsApp message he relies on does not mention him specifically. He did not demand that the parent retract the message, but he called the parent and has a recording of the call. He stated that he was teaching Grade 1 at the time. 49 CW1 stated that he was issued with a suspension letter informing him that investigations and disciplinary action would follow, and that he responded to it on 6 th September 2024. His response is at page 26 of his original bundle. He conceded that, as shown in the Respondent's Exhibit 7, the letter suspended him without pay for 10 days, and Page 17 of 45

page 17 of 45

that he signed it. He maintained, however, that he was not told that investigations were being conducted. 50 On the work environment, CW1 maintained that the environment was toxic before September 2024. He stated that he never filed a formal complaint on a toxic environment but sent an email in December 2023, which is at page 23. He confirmed that he continued to work for the Respondent despite the toxic environment. He conceded that in that email he did not accuse anyone of defamation, but only made reference to the manager. He also confirmed that he did not file any defamation suit against any parent. 51 CW1 further conceded that he did not attend the parents' meeting. He stated that he did not hear the statements made there and has no recordings of the meeting. 52 On the disciplinary process, CW1 confirmed that he did not attend the disciplinary hearing virtually. He was referred to the record of the hearing at page 29 of the Respondent's list. He stated that there are no minutes, only records, signed by one person. He testified that he was called and denied administering corporal punishment. He maintained that he was not taken through any hearing, but was simply ambushed with a call. Page 18 of 45

page 18 of 45

53 CW1 testified that he appealed the dismissal and that the Respondent acknowledged the appeal. On 4th October 2024, he received a notice of the appeal hearing. He stated that on the scheduled date he had internet connectivity challenges. He was referred to the Respondent's Exhibit 10, which are emails. 54 He confirmed that at page 110 he indicated he would be available for the hearing, and that the email at page 109 indicated the meeting would be held by Google Meet. He stated, however, that no email showed a link, that no link was shared for the hearing, and that no other meeting was proposed. 55 On the terminal benefits, CW1 conceded that he never applied for long service leave. He also conceded that his transfer was within Nairobi County. He maintained, however, that discretionary, the since relocation the subsidy Respondent's was not policies and practices provided for it. 56 On his claim for damages for defamation, CW1 stated that he had sent an email to the Respondent on the matter. He conceded that he has not filed any medical reports and has no other evidence that he lost job opportunities. He also conceded that he was issued with a certificate of service and that the Respondent did not publish his dismissal anywhere. Page 19 of 45

page 19 of 45

57 The Respondent called Victor Otieno Odhiambo, who testified as RW1. He introduced himself as a People Operations Officer. He adopted his witness statement recorded on 20th March 2026 as his evidence, and produced the Respondent's documents numbered 1 to 24 as Exhibits 1 to 24. 58 On cross-examination by the Claimant, RW1 stated that he is in charge of people and office operations. He confirmed that paragraph 2 of his witness statement refers to documents dated 5th March 2026, and that he has no document other than those before the Court. He stated that the Claimant's personal documents are kept by the Respondent. 59 RW1 was referred to paragraph 10.1 of the Statement of Response, which pleads that the Claimant was employed on 19th December 2023, and to paragraph 3 of his witness statement. He conceded that the exact date of the Claimant's employment is 19th December 2013. 60 RW1 conceded that the notice of termination was not signed by the Claimant. He stated that the Respondent terminated the Claimant after the disciplinary hearing, and relied on Exhibit 4 at page 5 as evidence of this. He conceded that he has no picture of the Claimant administering corporal punishment. Page 20 of 45

page 20 of 45

61 On paragraphs 9, 10 and 11 of his statement, RW1 testified that Sara called the Claimant as stated, and relied on Exhibit 8 at pages 7, 8 and 9. He stated that the Respondent's conclusion was based on the evidence adduced, as shown in the last paragraph at page 99, namely that the pupils confirmed they had been beaten. 62 On the appeal, RW1 testified that the invitation email referred to at paragraph 15 of his statement indicated that the meeting would be held via Google Meet. Referring to paragraph 16, he stated that he has no proof that the Claimant had internet connectivity problems or communicated them to the Respondent. 63 He testified that the appeal hearing was scheduled virtually and that the Respondent confirmed the Claimant was absent. He added that the Claimant did not request a physical hearing, and that he has proof that the hearings were set to be held virtually. 64 RW1 further testified that the Respondent's grievance policy provides for anonymous reporting, and that in the Claimant's case the Respondent received a report from a parent. He stated that the Respondent was unavailable for the meeting at the Labour Office in September. On the minutes of the disciplinary hearing, he stated that they could not be accounted for by the Respondent. Page 21 of 45

page 21 of 45

65 On re-examination, RW1 stated that a termination letter need not be signed by the employee. He added that there was no follow-up email from the Claimant saying that the link had not been provided. Claimant’s Submissions 66 The Claimant submitted that the parties were bound by the terms of the Employment Agreement filed in Court, which he argued provides verifiable evidence of his claims for breach of contract, defamation and violation of his constitutional rights. He relied on Section 9(2) of the Employment Act, 2007, which provides that "An employer who is a party to a written contract of service shall be responsible for causing the contract to be drawn up stating particulars of employment and that the contract is consented to by the employee in accordance with subsection (3)." 67 It is his submission that since the Employment Agreement was the Respondent's own act, the Respondent was bound by its terms and by the obligation to maintain an environment that afforded dignity and safety to its staff. He urged that breach of those terms entitles him to the remedies available under the contract and the laws of Kenya, and that this is the basis of his prayer for a declaration to that effect. Page 22 of 45

page 22 of 45

68 The Claimant submitted that the disciplinary action against him was without justification. Relying on Section 43 of the Employment Act, which calls for proof of the reason for termination, he argued that nothing in the Respondent's witness testimony or exhibits, particularly Exhibit 4, substantiates the allegation that on 4 th September 2024 it was reported that he had administered corporal punishment on a Grade 1 pupil at Bridge International Academies Kamuthi. 69 He further submitted that Section 41 of the Act requires notification and a hearing before termination on grounds of misconduct. The notice of summary dismissal shows the Respondent simply investigated the matter further and concluded that his actions violated its policy and amounted to gross misconduct. It is his submission that the alleged matter did not exist, and that nothing in the Respondent's evidence, particularly Exhibit 8, supports any such conclusion. 70 On the appeal, the Claimant relied on Section 12(1)(b)(i) of the Act, which requires the statement on disciplinary rules to specify the person to whom an employee may apply if dissatisfied with any disciplinary decision. He submitted that the dismissal notice provided for an appeal, which he lodged. He argued that although the Respondent's officers now make a case that the appeal was entertained, the Respondent's own Exhibit 4 shows Page 23 of 45

page 23 of 45

that it closed the matter on 25 th September 2024 with the resolution already fixed. 71 The Claimant relied on Section 45 of the Act, which outlaws unfair termination. He also relied on the term of his contract providing that the agreement would continue indefinitely in full force and effect from the commencement date unless terminated in accordance with its provisions. He argued that the flawed disciplinary action could not have validly terminated his contract. On that basis, he urged the Court to declare that the record of summary dismissal be struck off the Respondent's records. He also urged the Court to declare that the disciplinary action never expressly terminated his contract, and that he be treated in all respects as if his employment had not been terminated. 72 Under that declaration, he claimed the full cumulative benefits accrued to the date of determination, including remuneration of Kshs. 17,482 per month from September 2024 and the Employee Child Benefit (Pupil ID 148287188) at Kshs. 4,570 per school term from January 2025. 73 In the alternative, the Claimant submitted that keeping him in abeyance for so long implies a constructive dismissal. He sought pay in lieu of notice of Kshs. 17,482 under Section 36 of the Act. He also sought damages for wrongful dismissal and unfair termination equivalent to Page 24 of 45

page 24 of 45

twelve months' salary, being Kshs. 209,784, together with one year's child benefit of Kshs. 13,710, totalling Kshs. 223,494. He relied on Donald Mumo Moses v MidWave Freighgters Limited [2014] KEELRC 1080 (KLR) for remedies on indefinite suspension and wrongful termination. 74 On his claims for long service leave, relocation subsidy and the Employee Child Benefit, the Claimant submitted that it was the Respondent's practice to provide these benefits, which created a legitimate expectation on his part. 75 On aggravated damages for financial loss, it was the Claimant's submission that the Respondent preferred the dispute to be referred to this Court, which ordinarily takes a long time. He contended that this caused him the negative financial implications pleaded, and that it is equitable that he be restored to his previous financial standing. 76 On the frustration of his right to fair administrative action, the Claimant submitted that Section 47 of the Employment Act provides for a complaint of summary dismissal and unfair termination to a labour officer. He maintained that the Respondent admitted to refusing to attend the summons from the Nairobi County Labour Page 25 of 45

page 25 of 45

Office, thereby frustrating his right to fair administrative action under Article 47 of the Constitution. 77 He submitted that the violations accumulated when the Respondent failed to attend the joint conciliation meetings of 27th November 2024 and 4th December 2024, and failed to comply with the demands to settle his notice pay. He prayed to be compensated for each violation. 78 It is the Claimant's further submission that the Respondent violated his right to fair labour practices under Article 41 of the Constitution in two respects. The first was its failure to implement and enforce its workplace policies and procedures, or to act on his reported grievances, namely his complaint of a toxic workplace and his appeal against the summary dismissal. 79 He relied on Grace Gacheri Muriithi V Kenya Literature Bureau [2012] KEELRC 135 (KLR), where the Court observed that "The employee is entitled to a fair grievance management procedure with respect to complaints relating to both welfare and employer's operational policies and systems. The court holds that such unfair labour practices are in contravention of Sub Article 41(1) of the Constitution that provides for the right of every person to fair labour practices." 80 The second respect, the Claimant argued, was that the Respondent unfairly kept him in abeyance by failing to Page 26 of 45

page 26 of 45

give conclusive closure on his separation, despite being informed through his email of 21 st November 2024 of the resulting financial loss and mental anguish. He cited Donald Mumo Limited Moses (Supra) the v Mid-Wave Court observed Freighgters that "the Respondent had the opportunity to dismiss the Claimant. Dismissal should be communicated in clear and unequivocal language. But the Respondent has not acted. Keeping an employee on suspension for so long is an unfair labour practice." On the quantum of damages for unfair labour practices, he relied on Musonye v County Government of Bungoma [2023] KEELRC 510 (KLR). 81 On defamation, the Claimant submitted that Clause 15 of the Employment Contract prohibited defamation. He further submitted that the Respondent's own Child Protection Policy recognizes that hasty or ill-informed decisions concerning a member of staff can irreparably damage an individual's reputation, confidence and career. 82 He argued that defamation in employment is also prohibited by law, relying on Naqvi Syed Qmar v Paramount Bank Limited & another [2015] KEELRC 114 (KLR), where the Court held that "In Employment Law, defamation takes place when the Employer publicizes or causes to be publicized, statements which stigmatize the Employee. The manner of dismissal and the negative publicity attached to the Page 27 of 45

page 27 of 45

Petitioner had the potential to damage his employability… the employee's injured or damaged employability and not merely the compensated." personal stigmatization He submitted that each must be instance of defamation he complains of meets the criteria that the statements were published by the Respondent, were false, referred to him, and exposed him to public hatred, contempt or ridicule. 83 On the first instance, the Claimant submitted that his email of 6th December 2023 documented his complaint that the Respondent's officer was slandering the characters of teachers at Kamuthi. He wrote it because he was being victimised at the workplace. He argued that the slanders were malicious because they were made in collusion with some parents to cause other parents to gang up against teachers, himself included. 84 He submitted that since the Respondent trained its staff and conducted performance evaluations, being labelled a worst teacher, in its ordinary meaning and by imputation and innuendo, was understood to mean that he was a dubious character unfit for his work. He argued that the slanders were reckless because they exposed staff to hostility and discrimination and denigrated the Respondent's own reputation on the kind of staff it hires. As a result, he suffered instability at work through unreasonable transfers to new classes every year, loss of Page 28 of 45

page 28 of 45

dignity, and anxiety in dealing with parents and the community. 85 On the second instance, the Claimant submitted that the WhatsApp message alleging that a child had been punished at school was published because the Respondent's school leader established a platform that ordinarily publishes anything posted on it. He argued that since he was handling the class at the time, the message referred to him. 86 It is his submission that neither the sender nor the Respondent made any real attempt to substantiate the allegation, which exposed him to public hatred, contempt and ridicule among the group's members. 87 On the third instance, the Claimant submitted that the allegation in the notice of summary dismissal did not exist. That allegation was that "On 04/09/2024, it was reported that [he] had been administering corporal punishment to a Grade 1 pupil at Bridge International Academies Kamuthi." He pointed to Article 29(e) of the Constitution, which prohibits corporal punishment, and Section 25(a) of the Children Act, 2022, which declares that every child has the right to freedom from torture and cruel, inhuman or degrading treatment or punishment, including corporal punishment. Page 29 of 45

page 29 of 45

88 He relied on Section 74(1)(l) of the Employment Act, which requires an employer to keep "a record of warning letters or other evidence of misconduct of an employee," and Section 74(2), which permits an authorised officer to inspect those records. He also relied on Section 75, which makes it an offence for a person to make, or knowingly allow to be made, an entry in a record required by the Act "which that person knows to be false in a material particular." On this basis, he argued that the Respondent's disciplinary records contain entries that are false in a material particular. 89 He submitted that, in its ordinary meaning and by imputation and innuendo, the publication means that he committed a criminal act and is dangerous to society. He contended that the allegation is malicious because it does not exist yet the Respondent insists on it, exposing him to penal sanctions, banishment, violence, discrimination and diminished employability. He further argued that it is reckless because it invites public and legal scrutiny on both him and the Respondent's own compliance with the law, which cannot be substantiated. 90 On the fourth instance, the Claimant submitted that the statements made at the parents' meeting of 7 th September 2024 were revealed by attendees. They were also insinuated by the Supervisor of Schools in a recorded and transcribed phone call filed in his bundle. He maintained Page 30 of 45

page 30 of 45

that the Respondent publicized, and allowed to be publicized, allegations that led the attendees and the wider community, as ordinary right-thinking members of society, to doubt his moral probity and see him as violent and hateful of children. 91 He submitted because, that despite the his statements email of 6th were malicious December 2023 complaining of the denouncement of teachers before pupils and parents, the Respondent sent its Director of Schools to personally oversee the meeting. He added that the Supervisor of Schools, who oversees the school's operations, feigned ignorance and resorted to blackmail. He reasoned that it was reckless of the Respondent to allow statements on a matter still under investigation, and that had he been present, he risked mob justice, grievous injury or death. 92 He submitted that he suffered loss of dignity, great mental stress, anxiety for fear of penal sanctions, embarrassment and injury to his feelings, and prayed for compensation for each instance of defamation. 93 On the violation of his right to dignity, the Claimant relied on Article 28 of the Constitution, which provides that "Every person has inherent dignity and the right to have that dignity respected and protected." He submitted that the Respondent had a contractual obligation to promote a Page 31 of 45

page 31 of 45

respectful and conducive working environment that protected the dignity of its employees. 94 It is the Claimant’s submitted that the lead-up to his removal from work was marked by the unproven public allegation that he had punished a pupil, public humiliation at the meeting 7th of September 2024, and the unsubstantiated allegation of corporal punishment. He contended that these events were degrading, slanderous and humiliating, portrayed him as unscrupulous, and made him spend unreasonable time and resources pursuing closure instead of engaging in meaningful economic activity. 95 He further submitted that the Respondent's failure to enforce its own policies to ameliorate the toxic conditions raised in his December 2023 email caused him anxiety in his relationships with parents and the community, disrespect from pupils, and shame from demeaning statements directed at staff. He relied on the findings and quantum of damages in J W N v Securex Agencies (K) Limited [2018] KEELRC 1908 (KLR). 96 On costs, the Claimant submitted that the Employee Handbook for school staff entitles the Respondent to add to any amount owed by an employee all costs, charges and fees incurred in legal recovery of unpaid debts. He Page 32 of 45

page 32 of 45

argued that since this entitlement arises under the contract, it accrues to either party. 97 It is the Claimant’s submission that the Respondent preferred that the dispute be referred to this Court instead of ADR, and prayed for the costs of the suit together with the expenses incurred at the Labour Office, as calculated at page 38 of his bundle. 98 The Claimant further relied on Clause 28 (Waiver) of the Employment Contract. That clause provides that all rights or remedies of either party, whether under the agreement, at law, in equity or otherwise, are distinct, separate and cumulative, and that no one of them excludes any other. He submitted that the pleadings raised matters corollary to his claims which it would be inequitable to leave unremedied, and urged the Court to grant the reliefs arising from them. 99 On remuneration, the Claimant submitted that although the Respondent pleaded his annual gross salary as Kshs. 209,784, his P9 form for 2023shows an annual gross wage of Kshs. 191,137. He argued that this proves an underpayment of Kshs. 18,647, which, taken as an annual average over eleven years, amounts to Kshs. 205,117. He invoked the right of every worker to fair remuneration under Article 41 of the Constitution. Page 33 of 45

page 33 of 45

100 On leave, the Claimant submitted that Clause 7 of the Employment Contract on Annual Leave offends Section 28 of the Employment Act, under which a full-time employee is entitled to not less than twenty-one working days of leave with full pay. He contended that prorating his leave for the months of April, August, November and December was unfair and unlawful, and that he lost 1.75 leave days in each of those months annually. He computed this as 1.75 × 4 months × 11 years × Kshs. 732, being Kshs. 56,364. He urged the Court to find the provisions on half salaries and prorated leave invalid and illegal, and to award the sums computed as the minimum modification necessary to make those terms legal and enforceable. 101 On the certificate of service, the Claimant submitted that Section 51(3) of the Employment Act provides that an employer is not bound to give an employee "a testimonial, reference or certificate relating to the character or performance of that employee." He argued that the Respondent's Director, People, nonetheless bound herself as his referee by inviting potential employers to contact her "if additional information is required." 102 It is the Claimant’s submission that he is prejudiced because the information she may give could be false, like the impugned disciplinary records, and that each instance of giving third parties unsubstantiated information about him would be a continuing defamation. He therefore Page 34 of 45

page 34 of 45

sought a redrafted certificate of service that does not bind the Respondent's officers or directors as his referees. Respondent’s Submissions 103 The Respondent framed four issues for determination: whether it had a valid and fair reason to summarily dismiss the Claimant; whether it complied with the procedural fairness requirements of Section 41 of the Act; whether the Claimant proved defamation, constitutional violations or unfair labour practices; and whether the Claimant is entitled to the remedies sought. 104 On the reason for termination, the Respondent acknowledged that Section 43 of the Employment Act places the burden on the employer to prove the reasons for termination. It submitted that it discharged this burden. The evidence shows that on 4 th September 2024 a complaint was lodged alleging that the Claimant had administered corporal punishment upon a learner. RW1 testified that the complaint was escalated through Customer Care Resolution Team Ticket No. 1690025 and investigations commenced immediately (Respondent's Exhibit 4). 105 It was submitted that corporal punishment is expressly prohibited under the Child constitutes gross misconduct Protection warranting dismissal under the Staff Handbook. Page 35 of 45 Policy and summary

page 35 of 45

106 The Respondent investigations, further several submitted learners that confirmed following that the Claimant had administered corporal punishment. It stated that the outcome of the investigations was communicated to him by the School Supervisor, Ms. Sarah Ondimu, on 17th September 2024. It argued that on cross-examination the Claimant admitted being informed of the suspension process and the investigations, and admitted being aware of the policy prohibiting corporal punishment. 107 It submitted that the disciplinary committee considered the evidence and concluded that the Claimant had breached the Child Protection Policy, and that the minutes of the disciplinary hearing were produced as Respondent's Exhibit 8. 108 The Respondent submitted that the standard it was required to meet is not proof of actual guilt but a genuine and reasonable belief that misconduct occurred. It cited Kenya Revenue Authority v Gitahi & 2 others [2019] KECA 300 (KLR), where the Court of Appeal held that "The standard of proof is on a balance of probability, not beyond reasonable doubt, and all the employer is required to prove are the reasons that it 'genuinely believed to exist,' causing it to terminate the employee's services." Page 36 of 45

page 36 of 45

109 It also relied on Judicial Service Commission v Shollei & another [2014] KECA 334 (KLR) for the proposition that the test is not whether the employee was actually guilty, but whether the employer had reasonable grounds to believe that misconduct had occurred. On this basis, it submitted that it had discharged its burden under Sections 43 and 45 of the Act by demonstrating a genuine and reasonable basis for concluding that the Claimant had committed gross misconduct. 110 On procedural fairness, the Respondent submitted that the Claimant's principal complaint, that he was never invited to a disciplinary hearing or informed of the outcome of investigations, is completely disproved by its evidence. It relied on RW1's testimony that on 17 th September 2024 the School Supervisor contacted the Claimant, informed him that investigations had been concluded, and invited him to a disciplinary hearing scheduled for 18th September 2024. 111 It is the Respondent’s submission that the hearing proceeded on that date before a panel comprising the School Supervisor and two School Leaders. 112 It further submitted administering corporal representations were that the punishment fully Claimant and considered denied that his before the committee reached its decision. It therefore argued that Page 37 of 45

page 37 of 45

he cannot truthfully maintain that he was denied an opportunity to be heard. 113 The Respondent relied on Postal Corporation of Kenya v Andrew K. Tanui [2019] eKLR, where the Court of Appeal held that procedural fairness requires notification of the allegations and an opportunity to respond before a decision is made. In that decision, the Court identified the elements of a fair procedure under Section 41 of the Act as "an explanation of the grounds of termination in a language understood by the employee; the reason for which the employer is considering termination; entitlement of an employee to the presence of another employee of his choice when the explanation of grounds of termination is made; hearing and considering any representations made by the employee and the person chosen by the employee." The Respondent submitted that it fully complied with these requirements. 114 The Respondent further submitted that after his dismissal, the Claimant lodged an appeal by email dated 24 th September 2024, and he was invited to an appeal hearing scheduled for 4th October 2024. It argued that although the Claimant initially confirmed attendance, he failed to attend the appeal hearing and never sought to reschedule it despite being requested to do so. It that a party who declines or fails to use an opportunity afforded by the employer cannot later complain that he was denied a Page 38 of 45

page 38 of 45

hearing. It concluded that it complied with Section 41 of the Act. 115 On defamation, the Respondent submitted that the Claimant's allegations regarding the WhatsApp message, the suspension letter, the dismissal letter and the parents' meeting were suspension not and proved. dismissal It maintained letters were that the internal employment communications made in the course of disciplinary proceedings, and are therefore protected by qualified privilege. 116 It further submitted that the Claimant produced no evidence of publication of any defamatory statement to third parties. In particular, no evidence was led to show that the dismissal letter was published in any newspaper, social media platform or public forum. It also pointed out that no witness from the alleged parents' meeting was called to testify on the statements allegedly made there. 117 Relying on Miguna Miguna v Standard Group Limited & 4 others [2017] eKLR, it submitted that defamation must be specifically pleaded and strictly proved, and that the Claimant has fallen far below that standard. 118 On the alleged constitutional violations, the Respondent submitted that constitutional violations cannot be casually pleaded alongside ordinary employment disputes. It relied Page 39 of 45

page 39 of 45

on Attorney General & another v Andrew Maina Githinji & another [2016] eKLR for the proposition that constitutional remedies should not be invoked where adequate statutory remedies exist. It argued that the Claimant has not demonstrated any constitutional violation distinct from the employment dispute. 119 On the reliefs sought, the Respondent submitted that the Claimant is not entitled to notice pay, having been lawfully summarily dismissed for gross misconduct under Section 44 of the Employment Act. 120 On long service leave, it relied on RW1's testimony that such leave is neither accrued leave nor payable upon separation, and may only be taken during employment upon application. It noted that the Claimant produced no evidence that he ever applied for it. 121 On the relocation allowance, it submitted that its Relocation Policy makes the benefit discretionary and dependent on the circumstances of the transfer, and that the Claimant's transfer was within Nairobi County and did not qualify. 122 On the child benefit subsidy, it submitted that the evidence established that the subsidy ceases automatically upon termination of employment, whether voluntary or involuntary. Page 40 of 45

page 40 of 45

123 The Respondent further submitted that, having established both a valid reason and procedural fairness, compensation under Section 49 of the Employment Act is unavailable; the Claimant is not entitled to damages for defamation, having failed to establish publication, falsity, malice or damage. It also argued that no constitutional remedy is available, since no constitutional violation was proved. 124 I have considered all the evidence and submissions of the parties herein. The claimant has averred that he was employed by the respondents in 2013. The respondents on their part aver that the claimant was employed in 2023. There is however no contract of employment exhibited before court to support either contention. 125 The claimant submitted a pay slip of August 2024 and also a letter of 16/2/2017 confirming he had completed his probation period. Given this position, the averment that he was employed in 2023 is found without evidence. I will take his start date to be 2013 as submitted by the claimant. 126 From the pay slip, the claimant earned a gross pay of Kshs 15,151/-He was a member of NSSF and NHIF. However the contract produced by the respondents shows he was to earn gross pay of kshs 17,482/-. Page 41 of 45

page 41 of 45

127 The respondent raised a preliminary objection on the issue of this case being filed before the ELRC considering the jurisdiction of the magistrate’s court to handle the claim. Indeed the lawful court would have been the CMS court. 128 However, given the pauper status of the claimant and given the inherent jurisdiction of the ELRC to handle all ELRC case, I will proceed and dispose of this cause in order to allow justice to prevail. 129 The respondents terminated the claimant’s services on 19/9/2024 due to the reason that he administered corporal punishment to allegations. The a pupil. The summary claimant dismissal denied referred to the a disciplinary hearing held on 18/9/2024 which the claimant denied he went through. The respondents produced Exhibit 8 which is a general records book dated 18/9/2024 but there is no any letter served upon the claimant inviting him to any disciplinary hearing on 18/9/2024. There is no indication that witnesses were even called and heard. 130 Section 41 of the Employment Act starts as follows: 41. (1). Subject to section 42 (1), an employer shall, before terminating the employment of an employee, on the grounds of misconduct, poor performance or physical incapacity explain to the employee, in a language the employee understands, the reason for which the employer is considering termination and the Page 42 of 45

page 42 of 45

employee shall be entitled to have another employee or a shop floor union representative of his choice present during this explanation. 131 Under the law, the procedure to be adopted in order to qualify for a disciplinary hearing was never followed. The respondents purported that the claimant inflicted corporal punishment to a pupil. There is no evidence that the said pupil was called as a witness during the said hearing and neither was there any other evidence that the claimant had an opportunity to hear evidence from his accusers and cross examine them. 132 Given this scenario I find that the disciplinary procedure was flawed and the findings of culpability were based on none existent evidence. 133 Section 45(2) of the Employment Act 2007 states as follows: (2) A termination of employment by an employer is unfair if the employer fails to prove― (a) that the reason for the termination is valid; (b) that the reason for the termination is a fair reason― (i) related to the employees conduct, capacity or compatibility; or (ii) based on the operational requirements of the employer; and Page 43 of 45

page 43 of 45

(c) that the employment was terminated in accordance with fair procedure 134 Given the lack of procedural propriety, the existence of valid reason that would have led to termination were found non existent, I therefore find the termination of the claimant was unfair and unjustified. The claimant sought a number of remedies including damages for various breaches. Given the findings of this court, I find for claimant and I award him as follows: (1) 1 months salary in lieu of notice = kshs 17,482/-. (2) Given the long service of claimant with the respondent, and his inability to get another job given his age, I award him 10 months compensation for unfair termination= 17482x10= kshs 174,820 Total Awarded = kshs 192,302/- less statutory deductions. (3) The claimant be issued with a certificate of service. (4) The respondent will pay costs of this suit plus interest at court rates with effect from the date of this judgment. Dated, Signed and Delivered virtually at Nairobi this 8th Day of October 2026. HELLEN WASILWA JUDGE Page 44 of 45

page 44 of 45

Page 45 of 45

page 45 of 45