Wilson Muthaura Mathiu v Kenya Tea Development Agency (Holdings) Limited & another

The 2nd respondent signed it, referencing the 1st respondent’s board meeting held on 16 January 2026. The letter dated 16 January 2026 placed the petitioner on terminal leave without adequate notice, due process or valid reasons. The petitioner’s employment contract required 3 months' written notice before termination or payment in lieu thereof. However, the termination notice gave immediate separation effective 16 January 2026. At the time the notice was issued, the petitioner had 3 months remaining on his employment contract. The decision to place the petitioner on terminal leave was without due process and exposed him to psychological torture, public ridicule and unlawful termination. This contravened Section 4 of the 2nd respondent’s Group Human Resource Policies and Procedures Manual. The respondents deactivated the petitioner’s work email and business systems, including SAP, Chaiweb, and Informax, and appointed Francis Miano as acting CEO in place of the petitioner. At the time, the petitioner could not access his emails or work systems. He was denied access to information contrary to Article 35 of the Constitution. He was removed from all official work, board, management and employmentrelated WhatsApp groups. This was done while the petitioner was on official leave, breaching the employment contract and demonstrating an intention not to be bound by it. It rendered the employment intolerable. He was denied access to the office, which the acting CEO occupied. The petitioner’s official motor vehicle and assigned driver were unilaterally withdrawn from service despite the petitioner's active employment contract. The employer also discontinued other contractual benefits, such as newspapers. The monthly salary was not paid. These acts prevented the petitioner from performing his duties, resulting in unfair labour practices and violations of rights under the Employment Act (the Act). The imposed leave and lockout were not justified. ELRC NAIROBI JUDGMENT PETITION NO. E117 OF 2026 2

page 2 of 17

ELRC Petition E036 of 206 cites the petitioner as the 1 st interested party. The petitioner has not participated and does not wish to participate, and did not instruct the petitioner to file it either as his representative or in a personal capacity. The petition is different from the instant petition, which is premised on unfair termination of employment and a claim for damages and compensation. Unless the court intervenes, the petitioner’s constitutional and legal rights will be violated. The petitioner's rights under articles 2, 3, 19, 20, 21, 22, 27, 28, 41, 47, 50 have been threatened, violated and continue to be breached by the acts and conduct of the respondents; the petitioner seeks orders that a declaration be issued that his rights under the Constitution and the Act have been breached through constructive dismissal and the same be declared unconstitutional and unlawful, and the award of the following: a) 3 months' notice Ksh. 5,739,135. b) Accrued leave days 29.5 Ksh. 1,881,160.92 c) 16 missed sittings of the board Ksh. 672,240. d) Refund of unlawful deductions for the use of official motor vehicle Ksh. 180,000. e) 3 months' supply of newspapers. f) 12 months' compensation Ksh. 31,452,815.92 g) Certificate of service. h) General damages for violation of the petitioner’s constitutional rights. i) Costs of the petition. The petitioner's Supporting Affidavit supports the petition. He avers that he was employed on a 3-year fixed-term contract dated 7 October 2021. The contract was renewed from 1 October 2024 to 20 April 2026 with a monthly salary of Ksh 1,913,045. However, while on annual leave, the respondent issued him a notice of terminal leave dated 16 January 2026, even though his employment was due to expire on 20 April 2026. The respondent discontinued his access to work emails and systems and appointed an acting CEO. He was removed from all work-related ELRC NAIROBI JUDGMENT PETITION NO. E117 OF 2026 3

page 3 of 17

communications in breach of his ongoing employment contract, leading to constructive dismissal. The respondent's actions and conduct were unjustified, and there was no due process. The orders sought should be issued. In reply, the respondents filed the Replying Affidavit of Dr Charles Kireru, the Group Director, Human Capital, Performance and Culture of the 1st respondent. He avers that the petitioner was employed by the 1 st respondent as CEO on a fixed-term contract from 1 October 2021 to 30 September 2024. The contract was renewed from 1 October 2024 to 20 April 2026. Dr Kireru avers that the 1st respondent's board of directors, sitting on 16 January 2026, resolved that the petitioner should proceed on terminal leave pending his mandatory retirement in accordance with the KTDA Human Resources Policy. The petitioner was to hand over the company assets, including the motor vehicle. Terminal leave is an established and accepted employment practice in both the public and private sectors in Kenya. The Board had a legitimate prerogative to direct the petitioner to proceed on the balance of leave days after reviewing the governance systems, which showed that most employees, including the petitioner, had not taken leave and had accumulated leave days. The carry-over of annual leave was prescribed under clause 4.1(v) and (vi) of the 1st respondent’s HR policies. Dr Kireru avers that the petitioner’s terminal leave was therefore consistent with the overall policy directive issued to all affected staff, which the petitioner consistently directed to be implemented during his tenure as CEO. While the petitioner was on leave, he continued to receive his full salary and related benefits. No salary reduction, suspension, or penalty was imposed, as alleged. The petitioner’s contract expired on 20 April 2026 by effluxion of time. Placement on leave does not constitute a breach of contract, an unfair ELRC NAIROBI JUDGMENT PETITION NO. E117 OF 2026 4

page 4 of 17

termination of employment, or an alleged constructive dismissal. It was a normal human resource management practice. The 1 st respondent’s head office and CEO’s office are equipped with Physical Manned Security and Digital Access Security at the main entrances. CCTV surveillance, a control room, and backup systems are in place, all supervised by the company security manager. Based on security records, there is no record of the petitioner visiting or attempting to visit his office and being denied access. The acting CEO, Eng. Francis Miano, was appointed on 16 January 2026 and was expected to assume office as CEO immediately. The petitioner’s personal effects were cleared for collection. The company secretary, Mathews Odero, confirmed that the petitioner's personal effects remain safe in the building and await collection. On 22 January 2026, a new executive desk, complete with side extensions and a mobile drawer, was delivered to the CEO’s office to facilitate refurbishment of the new building. Dr Kireru avers that the petitioner’s official vehicle and assigned driver were not unilaterally withdrawn as alleged. These remained in effect while the contract was active. While the petitioner was on leave, he retained the 1st respondent’s vehicle registration No. KDE 265V and fuel card. He used the vehicle, covered mileage, drew fuel, and had minor repairs done. The driver is a 1st respondent employee assigned to the office of the CEO, not personal staff. The standard practice applied to him. The petitioner had no right to retain a company driver while on official leave and not performing official duties. The entitlement to 3 newspapers was a benefit with the office. The acting CEO took over the office and the benefits that go with it. Such benefits relate to the performance of official duties. Dr Kireru avers that the dispute herein is between an employer and employee and should have been addressed under a Memorandum of Claim. The respondents followed the due process and acted within their ELRC NAIROBI JUDGMENT PETITION NO. E117 OF 2026 5

page 5 of 17

mandate. There was no constructive dismissal, unlawful termination of employment or breach of the employment contract. The contract lapsed by effluxion of time upon the mandatory retirement clause. The claim for accrued leave of 29.5 days at Ksh. 1,881,160.92 is without merit, as the petitioner was placed on terminal leave to utilise that time. He cannot claim the same at the end of his employment under constructive dismissal. The claim for 16 board sittings did not take place, so the petitioner cannot claim payment. Sitting allowances are payable for actual attendance and do not apply while one is on leave. The claim for a refund of motor vehicle deductions is without merit, as the petitioner retained the official vehicle, KDE 265V, while on leave, and the salary deductions for that period were therefore properly made in accordance with the terms of his employment. The petition is without merit and should be dismissed with costs. The petitioner filed his Further Affidavit and avers that he has not claimed any salary or salary reduction, but that the terminal leave he was subjected to was unlawful. The loss and prejudice suffered arose from being unwillingly out of work despite having an active employment contract. A term contract does not entail taking forced leave at the end. Terminal leave is not equivalent to normal retirement as alleged. The petitioner avers that the respondent cannot justify the illegality in the notice dated 16 January 2026, under which he was unable to access the office after the forced annual leave. The respondent admits being locked out of the office and replaced with an acting CEO. Such was without justification and confirms the petitioner’s claim that he was sent on terminal leave and denied access to the employment benefits, including the motor vehicle. The company vehicle, driver and provision of newspapers were withdrawn. ELRC NAIROBI JUDGMENT PETITION NO. E117 OF 2026 6

page 6 of 17

The HR policy and the employment contract do not provide for terminal leave; instead, the policy provides for 3 months' notice or payment in lieu thereof. The deactivation of office email and systems, and the appointment of an acting CEO, compound the constitutional violations. In the petition, the petitioner submitted that it is a proper petition and that the orders sought should be issued. The principles established in Anarita Karimi Njeri v Republic [1979] eKLR require that a constitutional petition must specify with precision the rights violated and the manner of infringement. In Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others [2013] eKLR, the court held that the precision requirement is not to be mistaken for exactitude. The constitutional doctrine ensures that, once the issues are properly defined, a court can apply its mind to the real issues at hand. The petitioner’s employment rights have been violated by being sent on terminal leave without due process or in accordance with any HR policy or contract of employment. Although the parties were bound by a term contract with 3 months remaining, the respondent did not allow it to expire; instead, it issued a terminal leave notice and cut off the petitioner from internal systems, benefits, and access. This conduct lacked due process and showed an intention not to be bound by the contract. The appointment of an acting CEO while the petitioner’s contract subsisted confirmed such assessment, hence leading to constructive dismissal. In Njoroge & 2 others v Kenya Medical Supplies Authority & 3 others KEELRC 3037 (KLR), the court held that the petitioner suffered psychological torture and public ridicule upon being publicly subjected to unlawful compulsory leave for an indefinite period without any notice. Such a matter was not addressed in the HR policy or employment contract. The court thus awarded the petitioner Ksh. 6 million in general damages. In Wamukota v Kenya Electricity Transmission Company Limited & 2 others, KEELRC 3647 (KLR), the court held that the employer's ELRC NAIROBI JUDGMENT PETITION NO. E117 OF 2026 7

page 7 of 17

abrupt decision to send an employee on 3 months' compulsory leave was unjustified and therefore illegal. In a case where the employee was removed from the office WhatsApp group and blocked from accessing office emails, the court held that this violated constitutional rights to nondiscrimination, dignity, and fair labour practices in Wambui v Hallmaark Marketing Limited (Petition E097 of 2022) (2026) KEELRC 138 (KLR). The forced terminal leave was thus an act of compelling the petitioner to leave employment without justification. The LWA, the HR policy, and the employment contract did not support it. As the then CEO, appointing an acting CEO to take over the duties without notice meant that the respondent was not keen to adhere to the employment terms and conditions. This caused the petitioner psychological torture and degrading treatment. While his employment contract subsisted, another person was appointed to take over his duties. The orders sought should be issued with costs. The respondent submitted that the petitioner was on a fixed-term contract ending on 20 April 2026. By notice dated 16 January 2026, the petitioner was placed on terminal leave as a transitional measure to allow him to utilise the pending leave days before the end of the contract term. The claim that such was a constitutional breach is without justification. The respondent submitted that this is not a proper petition as required under the principles of Anarita Karimi Njeru v Republic [1979] eKLR. The petitioner's claims would have been addressed in an ordinary suit and a Memorandum of Claim. In Murage v Fineserve Africa Limited & 3 others [2015] KEHC 7330 (KLR), the court held that a party may not clothe an ordinary civil contractual claim in constitutional garb to attract constitutional jurisdiction. A constitutional issue must be genuine, not a mere device. Under Rule 10 (3) of the Employment and Labour Relations Court (Procedure) Rules, a party may file a Memorandum of Claim and raise a constitutional matter. Thus, the doctrine of constitutional avoidance ELRC NAIROBI JUDGMENT PETITION NO. E117 OF 2026 8

page 8 of 17

should be applied in this case, as held in Mokua v Nyasani & 4 others (Petition 001 of 2024) [2024] KEHC. The respondent submitted that the petitioner failed to exhaust internal dispute-resolution mechanisms before approaching the court. In Speaker of the National Assembly v Karume [1992] KECA 42, the court held that where a clear procedure for redress of a particular grievance is prescribed, that procedure should be strictly followed. The petitioner’s complaint to the respondent was in a letter dated 1 April 2026. He then filed suit without exhausting the internal grievance mechanisms. As the CEO, the petitioner was well acquainted with the HR policy and failed to invoke its mechanisms. The terminal leave granted to the petitioner is allowed under the HR manual and is therefore lawful. The petitioner had accrued annual leave towards the end of his contract. Under clause 4.1(v) and (vi) of the HR policy, the respondent directed the petitioner to proceed on terminal leave, well aware that his employment contract was ending on 20 April 2026. He cannot claim a violation of his employment rights, and the petitioner does not contest that he had 29.5 accrued leave days. In a circular dated 12 May 2026, the petitioner challenges the respondent's directions on taking annual leave after his employment. It does not relate to him since he had a personal notice dated 16 January 2026. The claim of constructive dismissal is unjustified. Such a matter did not occur based on the facts of the case. The doctrine of constructive dismissal as addressed in Coca Cola East & Central Africa Limited v Maria Kagai Ligaga, Civil Appeal No. 20 of 2012, does not apply. In such a case, the employee resigned due to intolerable working conditions imposed by the employer. In this case, the petitioner was sent on accrued leave days towards the end of his employment contract. He cannot justify a claim for constructive dismissal. The petition is without foundation and should be dismissed with costs. ELRC NAIROBI JUDGMENT PETITION NO. E117 OF 2026 9

page 9 of 17

Determination The petitioner has raised several claims, including a constitutional violation, a violation of legal rights, and constructive dismissal. In reply, the respondent has argued that this is not a proper petition, that the petitioner was properly sent on terminal leave and had accrued leave days, and that the remedies sought are unjustified. On whether this is a proper petition, the petitioner has cited various provisions of the Constitution and alleged violations and breaches. He is seeking general damages thereof. As the petitioner submits, under Rule 10(3) of the Employment and Labour Relations Court (Procedure) Rules (the Court Rules), a party alleging that constitutional rights have been violated may file a Memorandum of Claim and raise such matters. The rationale is that the constitutional rights under Article 41 of the Constitution have now been codified under the Employment Act (the Act) and the Labour Relations Act (LRA). The court rules allow a party to file a Memorandum of Claim and to bring a case alleging violations of constitutional rights and freedoms. The petitioner admitted that he was bound under an employment relationship with the respondent. He had a written contract. Under the Act, his employment rights under Article 41 of the Constitution are extrapolated. In addressing the dispute, the Employment and Labour Relations Court (Procedure) Rules apply. Rule 10 of the Court Rules allows a party to file a Memorandum of Claim and urge a case of constitutional rights violations. The need to file a constitutional petition is summarised in Sumayya Athmani Hassan v Paul Masinde Simidi & another [2019] eKLR; the court held that rights under Article 41 of the Constitution are entrenched under the Employment Act and the Labour Relations Act. These can be addressed through the mechanisms provided in those statutes rather than ELRC NAIROBI JUDGMENT PETITION NO. E117 OF 2026 10

page 10 of 17

by filing a constitutional petition, unless a petitioner can demonstrate that the law is insufficient. The petitioner must plead and demonstrate this. In the petition, there is no requirement to interpret any constitutional provision that is not addressed under the Act or the LRA. No conflict of laws is pleaded or stated to be insufficient in the given dispute. The petition has not achieved the threshold of a constitutional petition. The matters addressed in the petition concern an ordinary employment dispute that can well be addressed in a claim, as held in Gabriel Mutava & 2 others v Managing Director Kenya Ports Authority & another [2016] eKLR. Through notice dated 16 January 2026, the respondent directed the petitioner to proceed on terminal leave pending his retirement with immediate effect. The petitioner confirmed that he had 29.5 accrued leave days at the time and his contract was ending on 20 April 2026. The case is that this was a forced retirement without prior notice and constructive dismissal, since the petitioner was denied workplace access and blocked from the systems. Another person was appointed acting CEO in his place. On 15 December 2025, the petitioner had applied for 20 days of annual leave. He sought to take the leave from 22 December 2025 to 21 January 2026 and carry forward the balance. The employer approved the leave application on 18 December 2025. To begin with, taking annual leave is a right under section 28 of the Act. The employer must ensure the employee enjoys this right, as held in Rajab Barasa & 4 others v Kenya Meat Commission [2017] KEELRC 428 (KLR). Under the contract dated 3 June 2024, the petitioner was entitled to 30 days of annual leave. He acknowledges that by 15 December 2025, he had accrued 32.5 days of leave. In the petition, the petitioner asserts that, ELRC NAIROBI JUDGMENT PETITION NO. E117 OF 2026 11

page 11 of 17

at the time of the notice dated 16 January 2026 directing him to take terminal leave, he had accrued 29.5 days of leave. In Rajab Barasa & 4 others v Kenya Meat Commission [2017] KEELRC 428 (KLR), cited above, the court held that taking annual leave is not a punishment but a well-deserved right under section 28 of the Act. The employer has a duty to allocate such leave under the law, and the employee should not be discriminated against in the allocation of this right. Hence, allowing the petitioner to proceed on his accrued annual leave days towards the end of the term contract is a legal duty of the employer. In this case, the petitioner had 29.5 pending leave days. The contract was set to end on 20 April 2026. Failure to allocate the accrued leave days would result in their encashment. The option to take such earned leave was the most reasonable measure in view of the term contract. Additionally, a fixed-term contract is a lawful and legitimate mode of employment in terms of section 10(3) of the Act, as held in Apex Steel Limited v Dominic Mutuamuendo [2020] eKLR, that the general principle is that fixed-term contracts carry no rights, obligations, or expectations beyond the date of expiry. This was reiterated in Amatsi Water Services Company Limited v Francis Shire Chachi [2018] eKLR, where the court held: “… a fixed term contract will terminate on the sunset date unless it is extended in terms stated in the contract. A court cannot rewrite the terms of a contract freely entered into between the parties. Once there is a written contract, the court will seek to give meaning to such contract, giving ordinary meaning to its terms in determining any issue that may arise. …, an employer has no obligation to give an employee reasons why a fixed-term contract of employment should not be renewed. Requiring an employer to give reasons why the contract should not be renewed is the same as demanding that an employer give reasons why a potential employee should not be employed. The only reason that should be given is that the term has ELRC NAIROBI JUDGMENT PETITION NO. E117 OF 2026 12

page 12 of 17

ended, and no more. … Reasons beyond effluxion of time are not necessary to terminate fixed-term contracts unless the contract includes a clause requiring additional justification.” In this case, under the term contract dated 3 June 2024, the parties could terminate the contract on 3 months' notice or payment in lieu thereof. This was not a termination, but a direction to the petitioner to proceed on terminal leave. Taking terminal leave is a common workplace practice. This allows the exiting employee time off, utilises pending leave days, and commences the handover process. On the other hand, this allows the employer time to recruit and fill the office. The petitioner challenged his terminal leave as a violation of his constitutional rights and argued that replacing him with an acting CEO constituted constructive dismissal. However, while the petitioner's case concerned a fixed-term contract due to expire, allowing him to proceed on terminal leave over accrued leave days, the cited matter concerned compulsory leave. Whereas terminal leave and compulsory leave may appear symmetrical, one is lawful while the other is applied as a precautionary measure while investigations are pending. The results are different. The first is a transitional measure, and the second an interim measure; the employee may be recalled to work if the issues are addressed. The first is towards termination of employment by effluxion of time. In Wamukota v Kenya Electricity Transmission Company Limited & 2 others [2024] KEELRC 796 (KLR), the core issue concerned compulsory leave. In this case, the direction on 16 January 2026 concerned terminal leave upon retirement. The admission that leave days had accrued removed the issue of constitutional violations under section 28 of the Act. ELRC NAIROBI JUDGMENT PETITION NO. E117 OF 2026 13

page 13 of 17

The petitioner has claimed constructive dismissal. He argues that he was denied access to the workplace because his email was deactivated, his system was blocked, and his office was assigned to another officer. As the petitioner submitted, Coca Cola East & Central Africa Limited v Maria Kagai Ligaga, Civil Appeal No. 20 of 2012, addresses constructive dismissal at length. The employer repudiates the employment contract by placing the employee under intolerable working conditions. The working environment becomes so hostile that the employee must tender resignation. The employer forces the employee out of employment. As addressed above, taking annual leave is a legal right. The employer has the duty to ensure the employee takes accrued leave days. While the petitioner was on terminal leave, he could practically not be placed under intolerable working conditions. He had left the shop floor for good cause. The only difference in this case was the respondent’s conduct of blocking the petitioner from his workplace systems and platforms while employment subsisted. Such action was unnecessary. Where the access was to protect any organisational matter, the petitioner was an employee of the respondent until 20 April 2026. It thus became an unfair labour practice to subject the petitioner to a hostile transition period, even where the process should have been smooth. The need to remove him from Chaiweb and Informax was unwarranted. The appointment of an acting CEO while the petitioner was on terminal leave was necessary; however, the sanctity of the employment relationship, which closed on 20 April 2026, was breached. The accrued leave of 29.5 days, calculated from 22 January 2026 when the petitioner was due to complete his annual leave, ought to have ended on 9 March 2026. This was before the employment term lapsed on 20 April 2026. ELRC NAIROBI JUDGMENT PETITION NO. E117 OF 2026 14

page 14 of 17

Locking out the petitioner from the workplace by replacing him in his role, recalling his driver, and deactivating the systems to deny him access was unjustified. As of 9 March 2026, the employment contract was still in effect. Despite payment of a salary, the psychological loss of the right to perform the duties that go with the salary is defined under articles 28 and 41 of the Constitution as a denial of dignity and fair labour practices. The respondent justified withdrawing facilities from the petitioner on the basis that, while he was on terminal leave, he did not require the services of the company driver or the daily newspapers. These rights and benefits were contractual and attached to the position. Such benefits accrued until 20 April 2026. In Rebecca Ann Maina & 2 others v Jomo Kenyatta University of Agriculture and Technology [2014] KEELRC 793 (KLR), the court held that Section 41 of the Act sets the threshold for procedural fairness. In Kenyatta University v Maina [2022] KECA 1201 (KLR), the court emphasised that although the employer holds immense power on the shop floor, it should not use that power to the employee's detriment. Workplace power dynamics should be applied to balance the rights envisaged under Article 41 of the Constitution. To this extent, the court finds that the respondents breached the petitioner's right to fair labour practices. The need for the petitioner's transition and retirement was not fairly addressed, depriving him of a fair chance to offer his labour as necessary, even though the respondent had a legal requirement to allocate leave days. Such breach of the employment contract was unnecessary and unwarranted. The contract of employment allowed the respondent 3 months' right to issue notice or make payment in lieu thereof. The breach, leading to unfair labour practices, entitles the petitioner to one month's salary in general damages. The salary due for a month is Ksh. 1,913,045. ELRC NAIROBI JUDGMENT PETITION NO. E117 OF 2026 15

page 15 of 17

On the claim for 3 months' notice pay, the petitioner was allowed to proceed on leave for a longer period than due. The breach of his employment contract is addressed; the notice pay claim is not justified. The claim for 29.5 accrued leave days is also addressed. The claim for a refund of unlawful deductions for the use of an official motor vehicle is limited to the period the petitioner held the position, up to 20 April 2026. He cannot claim what was due under the position and also claim a breach of it. Regarding the claim for 16 board sittings, these are similar to special claims. If undertaken, there is payment. If there is no sitting, the allowance does not accrue. For the breach of the employment contract, namely, denying the petitioner the right to the board sittings and the allowances thereof, the award of damages shall suffice. The supply of newspapers goes with the position as accrued benefits. This is due as claimed; January Ksh. 2,420. February Ksh. 4,400. March Ksh. 4,840. April Ksh. 3,080. Regarding compensation, as addressed above, the employment lapsed by effluxion of time. Under section 51 of the Act, a Certificate of Service should be issued upon clearance. On costs, this is not a proper petition. This issue should have been addressed immediately, not at the judgment stage. Accordingly, each party will bear its own costs. Accordingly, the petition partially succeeds, and the following orders are issued; ELRC NAIROBI JUDGMENT PETITION NO. E117 OF 2026 16

page 16 of 17

a) A declaration that the respondent breached the petitioner’s employment contract; b) General damages at one month's salary Ksh. 1,913,045. c) Supply of newspapers Ksh. 14,740. d) Certificate of Service. e) No costs are due. Delivered in open court this 30th day of September 2026 M. MBARŨ JUDGE In the presence of: Court Assistant: Kemboi …………………………………………… ……… ELRC NAIROBI JUDGMENT PETITION NO. E117 OF 2026 17 and …………………………………..

page 17 of 17