REPUBLIC OF KENYA

IN THE EMPLOYMENT & LABOUR RELATIONS

COURT OF KENYA AT KISUMU

CAUSE NO. E089 OF 2023

DR. CHARLES OKECH

ODHIAMBO.......................................CLAIMANT

VERSUS

DR. OBADIAH KISANG.……………….………………1ST

RESPONDENT

MS. DORRIS MWARREY……………..………………..2ND

RESPONDENT

MR. GILBERT KAMANGA…………….………………3RD

RESPONDENT

WORLD VISION KENYA……………….……………...4TH

RESPONDENT

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 JUDGMENT

1. The Claimant initiated this action against the Respondents

through a Memorandum of Claim filed on 2 nd December

2023, citing wrongful termination and withholding of his dues

as the primary issues in dispute. He sought the following

remedies:

(a) Declaration that he was and is still an employee of

the 4th Respondent up to the 30th November 2023.

(b) A declaration that the withholding of his dues is

illegal and unfair.

(c) The Respondent be ordered to pay him his statutory

entitlements and dues totalling Kshs 2,939,166.20 with

interest at 30% with effect from the date of filing suit till

the date of the judgment.

(d) General damages for defamation of character.

(e) Aggravated damages.

(f) Interest on (a), (b), (c), (d) and (e) from the date of

filing suit until the date of the judgment.

(g) Costs of the suit be borne by the Respondent.

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2. The Claimant asserted that he first joined the 4 th Respondent

in January 2005 as a Food Security Coordinator in Turkana.

He stated that due to his outstanding performance, he was

promoted and transferred to Migori in October 2005 as a

Programme Coordinator, overseeing water sanitation, child

sponsorship, education, and food security. He further averred

that in October 2007, he was transferred to Winam Area

Development Programme in Kisumu East to address

mismanagement issues that had eroded donor confidence.

He contended that after two years, he was promoted to the

position of Lake Region Livelihood Resilience Officer, Kisumu,

where he oversaw 13 Area Development Programmes and

mentored new officers. After this stint the, Claimant stated

that he left the 4th Respondent's employment with a spotless

record, before re-applying in 2017 and being rehired as a

Project Manager overseeing projects spanning 7 African

countries.

3. He asserted that his performance was stellar earning him a

promotion to Senior Programme Manager in February 2022.

However, from this point, he asserted that challenges soon

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began arising due to inadequate handover by his

predecessor and persistent interference from the Programme

Director, who frequently monitored and overturned his

decisions. According to the Claimant, matters further

escalated in June 2023 when, following mid-year staff

performance reviews, the Programme Director sought to

place him on a Performance Improvement Plan. He asserted

that he objected to this, arguing that the alleged poor

performance was due to systemic issues such as delayed

procurement and high staff turnover. He affirmed that he

suggested improvement measures but his suggestions were

dismissed. The Claimant averred that relations with the

Programme Director further deteriorated, and on 29 th August

2023 he was served with a baseless notice to show cause,

detailing accusations of sexual harassment, bribery and

misconduct. After responding to the show cause, he

contended that he was invited for a disciplinary hearing

which he was unable to attend due to health complications

and psychological distress. Thereafter the Claimant stated

that he submitted his resignation, which was initially not

accepted. However, he later found that his resignation had

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 been accepted despite his withdrawal of it, and he was

locked out of the 4th Respondent's systems. In conclusion he

maintained that he was entitled to his outstanding dues and

an apology for the malicious accusations levelled against

him.

4. In reply the Respondents filed a Response to the

Memorandum of Claim dated 8th February 2023, generally

denying the allegations and inviting the Claimant to strict

proof. They contended that his resistance to performance

evaluation stemmed from a reluctance to be held

accountable, emphasizing that such evaluations were

standard organizational practice. The Respondents further

asserted that the Claimant voluntarily resigned, and his

resignation was duly accepted. Regarding the accusations of

sexual harassment, they maintained that the allegations

were true and that despite being given an opportunity to

respond, the Claimant refused to attend the disciplinary

hearing. With respect to the Claimant's final dues, the

Respondents asserted that they had already been computed

and disbursed.

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5. The matter proceeded for hearing on various dates, during

which the Claimant testified, and two witnesses provided

testimony on behalf of the Respondents. Both parties

subsequently filed written submissions.

Claimant's Submissions

6. The Claimant submits that the Respondents failed to prove

that he was accorded a fair hearing. He asserts that the

contradictions surrounding whether a disciplinary hearing

took place were significant and material. In support of this

position the Claimant maintains that no formal charges were

framed, no proper hearing was conducted, and that a board

meeting could not be repurposed into a disciplinary hearing.

He cites the case of David Wanjau Muhoro v Ol Pajeta

Ranching Limited [2014] eKLR where the essential

elements of a fair disciplinary process were outlined as

follows:

"First the right to sufficient time between the date of

service to show cause and the date of hearing to prepare

for the hearing, second the right to fully understand the

charges. General charges such as dishonesty, fraud and

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 fraudulent activities are vague and offer an employee no

opportunity to respond intelligibly. Lastly, the employee

has a right to documentation. The employee must be

given the documents the employer intends to rely on at

the hearing."

7. In further impugning the disciplinary process, the Claimant

draws attention to sections 41, 43, 44, 45 and 47(5) of the

Employment Act as well as the Court of Appeal case of Pius

Machafu Isindu v Lavington Security Guards Limited

[2017] eKLR, where the obligations placed on employers by

the Employment Act in matters of summary dismissal were

to prove that; the reasons for termination were valid and fair,

the grounds were justified and there was compliance with

the mandatory procedural requirements set out in section

41. In highlighting the shortfalls of the disciplinary process,

including the Notice to Show Cause, the Claimant submits

that:

i. The Respondents failed to provide evidence to

support allegations of sexual harassment, bribery, or

the use of vulgar language.

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 ii. The 1st Respondent in drafting the notice relied on

malice, innuendo, ill motive and connivance with his

supervisees.

iii. The 2nd, 3rd and 4th Respondents violated labour laws

by terminating his employment before the end of his

contract.

iv. Despite his withdrawal of resignation, the 2 nd, 3rd and

4th Respondents still accepted the resignation and

proceeded with a disciplinary hearing, suggesting a

premeditated effort to victimize him.

8. Consequently, the Claimant asserts that the Respondents

prevented him from attending the disciplinary hearings to

present his defence, and violated the 45-day period within

which accusations under the "code red" category should be

addressed. Regarding his resignation the Claimant submits

that it was improper for the Respondents to backdate a letter

accepting his resignation after he had formally withdrawn it.

He emphasizes that withdrawal of a resignation notice is

permissible under special circumstances citing the Irish

Employment Tribunal in UD 946/2007, Mcmanus v

Page 8 of 20
Brian Contractors, where an employee's letter withdrawing

resignation was deemed binding after consideration of the

context in which the resignation was offered. Moreover, he

asserts that a resignation withdrawal is valid when

communicated at the earliest opportunity or if the

resignation was made in the heat of the moment. In support

of this, he cites the case of Kwik-Fit [GB] Limited v

Lineham [1992] IRLR 156 where it was held that if an

employee resigns impulsively under pressure or humiliation,

the employer has a duty to investigate the employee's true

intentions before accepting the resignation. Reinforcing his

position, the Claimant submits that a resignation letter alone

does not constitute unequivocal evidence of an intention to

terminate employment. He cites the decision in the Canadian

Case [British Columbia [British Columbia] decision,

Templeton v RBC Dominion Securities, Inc 2005,

Carswell Nfld, 216 at Paragraph 46 where it was stated:

"It is important to distinguish between a letter of

resignation, and resignation. A resignation is the decision

to terminate the relationship, or equally, a fact or

circumstance which unequivocally reflects that decision. A

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 letter of resignation is simply evidence-cogent evidence of

the Employee's decision to end the relationship. But it is

no more than that; a letter of resignation is not in itself,

the Employee's termination of employment."

9. In submitting that the Respondents were malicious, the

Claimant highlights that he was only served with the

backdated letter accepting his resignation on the same date

that he submitted his withdrawal of resignation. He relies on

the case of Edwin Beiti Kipchumba v National Bank of

Kenya Limited [2018] eKLR, where the court upheld an

employee's right to rescind resignation, finding that the

employer's refusal to accept the withdrawal was due to the

Respondent's directors being compromised and at the heart

of the fraud under investigation by the CBK. On the issue of

defamation, the Claimant submits that the Respondents'

accusations labelling him fraudulent, corrupt and a sex

molester were made without evidence and were therefore

defamatory. He submits that these statements meet the

legal threshold for defamation, which requires, that the

words must tend to lower the person's reputation in the

estimation of right-minded person, the words must refer to

argument, he cites the cases of Alnashir Visram v

Standard Limited [2016] eKLR and Wycliffe A. Swanya

v Toyota East Africa Ltd & another [2009] eKLR. Given

the damage to his reputation, the Claimant submits that he

is entitled to general damages of Kshs 20,000,000/- citing

the case of Richard B.O. Onsongo v Rose Ogendo

Nyamunga, Joyce Oweya & Paul Ogendo (Civil Case 9

of 2014) [2018] KEHC 8169 (KLR) (27 February 2018)

(Judgment). Additionally, the Claimant submits that he is

entitled to exemplary damages of Kshs 5,000,000/- based on

the principle in Godfrey Julius Ndumba Mbogori &

another v Nairobi City County [2018] eKLR that

exemplary damages serve the purpose of deterrence and

punishment. In conclusion, the Claimant urges the court to

grant the reliefs sought in his claim.

Respondents' Submissions

10. In opposition to the claim the Respondents identify the

following issues for determination:

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 i. Whether the Claimant was wrongfully terminated

from his employment or his Constitutional right to

fair hearing was breached;

ii. Whether the Claimant was defamed in the notice to

show cause letter arising from complaints from a

former employee, which letter was sent to him

confidentially; and

iii. Whether the Claimant should be awarded damages

including aggravated damages.

11. On the first issue, the Respondents submit that there was

no wrongful termination, as the Claimant voluntarily

resigned. They contend that the termination of employment

was initiated by the Claimant himself and was not due to any

wrongful conduct on their part. In support of this position,

they cite the decision in Edwin Beiti Kipchumba v

National Bank of Kenya Limited [2018] eKLR as

referenced in Kennedy Obala Oaga v Kenya Ports

Authority [2018] eKLR, which held that resignation is a

unilateral act by an employee and that the Employment Act

does not prevent an employee from resigning at any stage of

Page 12 of 20
 the disciplinary process. Additionally, the Respondents rely

on David K Cheruiyot v Barclays Bank of Kenya Limited

(Cause 242 of 2011) [2015] KEELRC 1164 (KLR)

(Employment and Labour) (20 April 2015), where it was

held that the Claimant was not entitled to the prayers sought

having chosen to resign.

12. The Respondents maintain that they adhered to the

requisite procedural steps as outlined in the employment

contract and organizational policies. They assert that the

notice to show cause was issued in response to serious

breaches of the 4th Respondent's Code of Conduct, Adult

Safeguarding Policy, Financial Fraud Policy, and Sexual

Harassment Policy. Furthermore, the Respondents submit

that despite responding to the notice to show cause, the

Claimant repeatedly failed to attend disciplinary hearings.

They highlight his absence from the hearing scheduled for 3 rd

September 2023 citing illness, and his failure to attend the

rescheduled hearing on 8th September 2023, without

providing a valid explanation. The Respondents assert that

the Claimant's actions were a deliberate attempt to evade

accountability. They further submit that his decision to

Page 13 of 20
 engage legal counsel in an effort to revive the disciplinary

process after his resignation was akin to "closing the stable

door after the horse had already bolted."

13. On the second issue, the Respondents submit that the

claim of defamation is unfounded, as the notice to show

cause does not meet the legal threshold for defamation.

They emphasize that the letter was a private communication

issued in the course of legitimate administrative functions

and was devoid of malice. To establish the elements required

to prove defamation, they refer to the decision in the case of

Elisha Ochieng Odhiambo v Booker Ngesa Omole

[2021] eKLR, which sets out the following requirements:

a. The Claimant must demonstrate the defamatory

nature of the matter complained of, in that it was

uttered to someone else other than the defamed

party and was published maliciously.

b. The words must have the effect of lowering the

claimant’s reputation in the eyes of right-thinking

members of society or causing them to be shunned or

avoided.

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 c. The statement must have been made with malice or

reckless disregard for the truth.

14. The Respondents submit that by applying these principles

to the present case, it is evident that the notice to show

cause merely sought the Claimant’s response to allegations

and did not constitute a definitive assertion of guilt or

wrongdoing. They reiterate that the letter was addressed

solely to the Claimant and was not shared with any

unauthorized third parties. To reinforce their position, the

Respondents cite the case of Miguna Miguna v Standard

Group Limited & 4 others [2017] eKLR, which held that a

defamation claim requires proof that a defamatory

statement was published or caused to be published by the

defendant. Additionally, the Respondents submit that the use

of the term "alleged" in the notice to show cause

underscores the absence of malice, as it demonstrated that

no definitive conclusions had been drawn against the

Claimant.

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15. On the final issue, the Respondents urge the court to

consider the decision in George Ngige Njoroge v

Attorney General [2018] eKLR, which held as follows:

"Aggravated damages are awarded in actions where

damages are at large. They are normally awarded in

actions of defamation, intimidation, false imprisonment,

malicious prosecution, and trespass to land, persons or

goods. The matters that the court should take into

account in awarding such damages include the

Defendant’s motive, conduct and manner of committing

the tort. The court has to consider whether the Defendant

acted with malevolence or spite or behaved in a high-

handed manner."

16. The Respondents submit that since the Claimant has

failed to prove defamation, he is not entitled to aggravated

damages. They reiterate that the notice to show cause was a

confidential internal document issued in adherence to

procedural fairness. Furthermore, they maintain that they

acted in good faith by accommodating the Claimant through

repeated rescheduling of the disciplinary hearing. In light of

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 the foregoing, the Respondents urge the court to dismiss the

Claimant's case in its entirety.

17. The Court has considered the pleadings, testimony and

submissions of the parties and the law in coming to this

decision. The Claimant asserts he rescinded his resignation.

In order to benefit from the latitude accorded to an

employee who resigns out of duress or coercion then

rescinds the resignation, certain criteria must be met. As

held in the Irish Employment Tribunal in UD 946/2007,

McManus v Brian McCarthy Contractors, a resignation

can be rescinded taking into account the circumstances

under which the resignation was offered. In this case the

Claimant asserts he resigned then rescinded the decision in

a letter to the 4th Respondent. This recission was within the

bounds in the Irish case. In my considered view, the

circumstances of the resignation coupled with the impending

disciplinary hearing take this resignation to the level where a

Court can infer it was not voluntary or made with full intent

to sever the employment relationship. The Claimant had

been soul searching after the allegations against him were

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 made. It would be hoped that the Respondents had gathered

sufficient evidence of the allegations made against the

Claimant. Given that he had been facing persistent

interference with his docket, the decision to resign seems to

have been off the cuff and made in the heat of the moment.

Where an employee resigns impulsively under pressure or

humiliation, the employer has a duty to investigate the

employee's true intentions before accepting the resignation.

That said, the Claimant seems to have suffered some mild

depression for which he sought medical attention before he

finally was let go when the disciplinary hearings never

managed to take off. The resignation therefore in the Court's

view was not voluntary and the recission did not take away

from the Claimant the right to due process or the benefit of

the repudiation.

18. The Claimant asserts he was defamed. The Court does

not discern defamation as the contents of the letter making

the accusations was not published to the world or even

copied to persons who had no business being in the know. As

such the claims on the said limb are dismissed. The Claimant

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 did not prove any entitlement to aggravated damages and

the only compensation he will recover are 3 months' salary

as compensation – Kshs. 1,135,443.30 for the failure to hear

the Claimant and for the obtuse acceptance of his

resignation even after it was withdrawn. The 3 months take

into account the Claimant has mitigated his losses and has

even moved on to other engagements and is therefore not

without recourse to earning a salary.

19. The Claimant was entitled to receive notice of termination

which is one month – Kshs. 378,481.10 in addition to the

withheld statutory dues amounting to Kshs. 704,000/- per his

testimony whereat he indicated he had been paid part of his

dues. The Claimant is also to be paid his gratuity

accumulated per his August 2023 payslip – Kshs.

1,488,324.15 less any gratuity already paid out. If this sum

has been settled in full the same shall be excluded from the

computations of final dues.

20. The Claimant will also have costs of the suit and interest

on the sums awarded from the date of this judgment till

payment in full. The decretal sum is to be settled by the 4 th

Page 19 of 20
 Respondent to the exclusion of the 1 st, 2nd and 3rd

Respondents.

21. In the final analysis the Court enters judgment for the

Claimant against the 4th Respondent for:-

a. Unpaid terminal dues amounting to Kshs. 704,000/- less

any sums paid subsequent to the Claimant testifying in

Court.

b. Unpaid gratuity if any.

c. One month's salary as notice – Kshs. 378,481.10

d. Compensation of 3 months' pay – Kshs. 1,135,443.30

e. Cost of the suit

f. Interest at court rates on the sums in a), b), c) and d)

above from the date of judgment till payment in full.

It is so ordered.
Dated and delivered at Kisumu this 19th day of February

2025

Nzioki wa Makau, MCIArb.

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