Peter Musyoka v Masaku Lucky Wholesalers [2015] KEELRC 419 (KLR)
The bottom line
#A Kenyan court ruled an employee's dismissal unfair because the employer proved no valid reason and gave no hearing, awarding full compensation.
What this practically means
#Executive summary
#Key legal issues
#Validity of reasons for termination
The Respondents failed to prove a valid reason for the dismissal
The Respondents alleged the Claimant caused losses of Kshs.31,280 but led no evidence of the goods supplied and signed for and their value against remittances. RW1 claimed losses of about Kshs.50,000 per week, a discrepancy left unexplained. The alternative reason of absconding was contradicted by the Respondents' own evidence as to the cause of dismissal.
Procedural fairness before dismissal
No hearing was given to the Claimant as envisaged under Section 41 of the Employment Act
The court found that the Claimant was not given notice, a hearing, or reasons for termination. Section 41 requires an employer to explain the reason for contemplated termination and to hear and consider the employee's representations before terminating or summarily dismissing for misconduct or poor performance.
Remedies for unfair termination
The Claimant was awarded one month's notice pay, twelve months' compensation and service pay
Having found the dismissal unjustified and unfair under Section 45, the court exercised its discretion to award one month's salary in lieu of notice, the maximum twelve months' compensation for unlawful termination based on the salary of Kshs.6,000, and service pay of fifteen days' salary for each of the fourteen years worked.
Respondent's counterclaim
The counterclaim of Kshs.31,280 for unaccounted goods and moneys was dismissed
The Respondents did not lead evidence establishing the goods supplied and signed for by the Claimant, their value, or the shortfall against what the Claimant remitted. The discrepancy between the pleaded loss and RW1's evidence of weekly losses of Kshs.50,000 was unexplained, so the counterclaim failed.
Legal principles established
#- An employer must prove both a valid reason and a fair procedure for termination under Section 45 of the Employment Act
- Before terminating employment an employer must explain the reasons to the employee and hear representations under Section 41 of the Employment Act
Court orders
#- 1.1 month salary in lieu of notice of Kshs.6,000
- 2.12 months compensation for unlawful termination of Kshs.72,000
- 3.Service pay of 15 days salary for each year worked (14 years) of Kshs.42,000
- 4.Total award of Kshs.120,000 plus costs and interest
- 5.Claimant's claim for off duty days, overtime, gratuity pay and travelling allowance not awarded
- 6.Respondent's Counter Claim dismissed with costs to the Claimant
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment disputes (claim of unfair termination and terminal dues); Employment Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Peter Musyoka v Masaku Lucky Wholesalers [2015] KEELRC 419 (KLR)", Case Analysis (2015). Cause No. 598 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/419/eng@2015-10-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.