Joseph Mwinzi Mulwa v Tangren Restaurant & 2 others [2020] KEELRC 765 (KLR)
The bottom line
#A Nairobi court ruled a cook's dismissal over alleged theft was unfair because his employer never gave him a hearing, awarding him KES 118,970 plus costs.
What this practically means
#Executive summary
#Key legal issues
#Whether the termination was unfair
The termination was unfair within the meaning of Section 45 of the Employment Act as no disciplinary process was undertaken and no notice was issued
Section 41(1) requires an employer to explain the reason for termination to the employee in a language they understand and hear their representations before dismissal. The Claimant was never taken through a disciplinary process or issued a notice of termination. The Respondents' only supporting document, a Parklands Police Station letter alleging confession, was uncorroborated by any witness, lacked the Claimant's signature or acknowledgment, and showed no Occurrence Book entry, and the Claimant's sworn testimony denied confessing.
Whether the dismissal amounted to redundancy entitling the Claimant to severance pay
The dismissal did not amount to redundancy and the claim for severance pay failed
Redundancy under Section 2 of the Employment Act requires loss of employment by involuntary means through no fault of the employee at the employer's initiative, as expounded by the Court of Appeal in Kenya Airways Ltd v Aviation & Allied Workers Union. The Claimant's dismissal was on grounds of alleged misconduct, not economic or operational circumstances rendering his services superfluous, so it could not qualify as redundancy.
What compensation was appropriate for unfair termination
Compensation equivalent to 4 months' salary (KES 68,000) awarded under Section 49 of the Employment Act
Having found unfair termination, the court considered the factors in Section 49(4), including the Claimant's length of service of almost two years and the manner of dismissal. A 4-month salary award was deemed reasonable rather than the maximum 12 months sought.
Legal principles established
#- Even where an employer alleges a grave offence such as theft, due process under Section 41 of the Employment Act must be followed before dismissal
- Where the employer fails to produce employment records, the burden falls on the employer to prove or disprove the alleged term of employment (Section 10(7))
- Uncorroborated police station letters alleging an employee's confession, without acknowledgment, signature or OB record, cannot establish grounds for dismissal
Court orders
#- 1.One month's salary in lieu of notice of KES 17,000
- 2.Payment for public holidays worked of KES 23,508
- 3.Salary for days worked in May 2015 of KES 10,462
- 4.Four (4) months' salary as compensation of KES 68,000
- 5.Total award of KES 118,970 against the 1st Respondent
- 6.The 1st Respondent shall pay the Claimant's costs for the suit
- 7.The decretal sum shall attract interest at court rates from date of judgment until payment in full
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment and labour relations claims (Employment Act, 2007)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Musya v Ndumu Plastics Limited (Environment and Land Case E002 of 2022) [2026] KEMC 423 (KLR)[2026] KEMC 423 (KLR)14 Jul 2026
Cite this brief
#Cite this brief
Caselaw, "Joseph Mwinzi Mulwa v Tangren Restaurant & 2 others [2020] KEELRC 765 (KLR)", Case Analysis (2020). Cause No. 1692 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/765/eng@2020-06-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.