Joseph Mutuku Musee v Kenya Vehicle Manufactures [2018] KEELRC 1068 (KLR)
The bottom line
#A Kenyan court ruled that an employee claiming he was dismissed wins when the employer cannot prove he absconded, awarding him over Kshs. 417,000.
What this practically means
#Executive summary
#Key legal issues
#Whether the Claimant was dismissed or absconded duty
The Claimant was verbally dismissed on 2/3/2012
The letter dated 2.3.2012 was a cautionary letter received by the Claimant on 5/4/2012, after the alleged termination, and was an afterthought. The respondent never issued a dismissal letter for abscondment and never sought out the claimant despite having his contacts. Abscondment was only raised upon receipt of the demand notice. The court therefore found verbal dismissal the most probable position.
Whether there were valid reasons and due process for the dismissal
There were no valid reasons and due process was not followed; dismissal was unfair
Under Sections 43 and 41 of the Employment Act, the employer must prove valid reasons and follow fair procedure. The respondent never issued any dismissal letter stating reasons, and the claimant was never given an opportunity to explain himself before summary dismissal. The court concluded the dismissal was unfair and unjustified.
Commission claim
Reserved pending resubmission of proper figures based on profits
Commission was payable at 15% on profit realized on sales, but the claimant calculated commission on total invoices. The court declined to speculate on profits and reserved the determination until parties resubmit proper accounts on the item, including vis-à-vis the counterclaim.
Legal principles established
#- Where an employer alleges abscondment but never issues a dismissal letter and does not follow up the absconding employee, the probable position is that the employee was verbally dismissed
- An employee is entitled to be informed of the reasons for dismissal; failure to serve such reasons breaches Section 43 of the Employment Act
- Termination without adherence to the procedure in Section 41 of the Employment Act is unfair and unjustified
Court orders
#- 1.1 month salary in lieu of notice = Kshs. 40,000/=; 40 days leave payable = Kshs. 57,333/=; pension dues released to the Claimant; 8 months' salary for unlawful termination = Kshs. 320,000/=; total Kshs. 417,333/= plus costs and interest
- 2.Determination on commission payable vis-à-vis the counterclaim reserved to a later stage pending resubmission of proper figures
- Jurisdiction invoked
- Employment and labour relations dispute under the Employment Act, Article 162(2) jurisdiction of the Employment and Labour Relations Court
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Joseph Mutuku Musee v Kenya Vehicle Manufactures [2018] KEELRC 1068 (KLR)", Case Analysis (2018). Cause No. 1964 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1068/eng@2018-09-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.