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ELRCPartially AllowedCause No 1919 of 2016· [2023] KEELRC 2466 (KLR)

Musyimi v Kenya Christian Industrial Training Institute (Cause 1919 of 2016) [2023] KEELRC 2466 (KLR)

Employment and Labour Relations Court
16 October 2023
JGJACOB GAKERI
4,740 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~19 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ruled an employer cannot fire a 17-year employee for 'desertion' without proof, proper notice, and a fair hearing.

What this practically means

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Executive summary

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The Claimant, employed from September 1998 as a Personal Assistant to the Respondent's Founder, sued for unfair termination and terminal dues after her summary dismissal on 11th December 2015, following an office lock-out on 10th November 2015 and a notice to show cause for desertion. The Respondent defended the dismissal on grounds of habitual desertion, absenteeism, and insubordination towards the board, particularly Mr. Rawago, whose board membership had been confirmed by the High Court. The court framed two issues: whether the termination was unfair and unlawful, and whether the reliefs sought were payable. On substance, the court found the Respondent's attendance records unauthenticated and unreliable, noted the absence of any prior warning, complaint, or timely disciplinary action, and held the desertion and insubordination allegations unproven; the dismissal letter cited only an undefined 'provable misdemeanor'. On procedure, the court was not persuaded that the Claimant was served with the invitation to the disciplinary hearing, and the letter did not inform her of the right to be accompanied, contrary to Section 41 of the Employment Act. The court declared the termination unfair and awarded one month's salary in lieu of notice (Kshs.30,587), payment for actual leave days accrued in 2015, compensation equivalent to five months' gross salary under Section 49(1)(c), a certificate of service, costs, and interest. The pension claim was dismissed as abandoned, and the claim for the additional Kshs.25,000/= monthly payment failed for lack of evidence, salary being taken per the payslip. Judgment dated, signed and delivered virtually at Nairobi on 16th October 2023 by Dr. Jacob Gakeri, Judge.

Key legal issues

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01

Whether the Respondent had a valid and fair reason for termination

Holding

No valid and fair reason was demonstrated; allegations of desertion and insubordination were unproven and the dismissal letter cited only 'provable misdemeanor' without particulars.

Reasoning

The attendance records lacked authentication and were unreliable. The Respondent took no action against alleged absenteeism for months, issued a notice to show cause only when the Claimant appeared in the office, and could not explain why the letter was not sent by email or registered post. The dismissal letter gave no particulars of the alleged misconduct, making it impossible for the Claimant to appeal. Ins ubordination was never evidenced.

p. 7
02

Whether the Respondent complied with the procedural requirements of Section 41 of the Employment Act

Holding

The Respondent failed to demonstrate compliance with Section 41; there was no credible proof of service of the invitation to the hearing, and the invitation did not inform the Claimant of her right to be accompanied.

Reasoning

The Respondent adduced no evidence of how and by whom the invitation letter dated 9th December 2015 was served. RWI's written statement made no reference to the invitation or hearing, and the dismissal letter made no mention of any hearing or board recommendations. Even if served, the letter did not explain the employee's entitlement to be accompanied by a fellow employee, rendering any hearing irregular.

p. 9
03

What reliefs flow from the unfair termination

Holding

Declaration of unfair termination, one month's salary in lieu of notice (Kshs.30,587), actual leave days for 2015, five months' gross salary as compensation under Section 49(1)(c), certificate of service, costs and interest.

Reasoning

Notice pay was awarded as no notice was given under Section 36. Leave pay was awarded as no evidence of leave taken was adduced. In assessing compensation, the court considered the 17-year tenure, absence of prior warnings, the Claimant's failure to appeal or indicate a wish to continue in employment, her contribution to the termination, and the pension benefits already paid, settling on five months' gross salary.

p. 10

Legal principles established

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  • A valid termination requires both substantive justification and procedural fairness.
  • An employer alleging desertion must show steps taken to contact the employee and issue a notice to show cause.
  • The summary dismissal letter must state the reason(s) for termination to enable an appeal.
  • Unauthenticated documents without date or signature are unreliable as evidence.

Court orders

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  1. 1.Declaration that termination of the Claimant's employment by the Respondent was unfair
  2. 2.One month's salary in lieu of notice of Kshs.30,587.00
  3. 3.Payment for actual leave days accrued in 2015
  4. 4.Compensation equivalent to five (5) months' gross salary
  5. 5.Issuance of a certificate of service
  6. 6.Costs of the suit to the Claimant
  7. 7.Interest at court rates from the date of judgment until payment in full

Authorities

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Legislation

  • Employment Act, 2007Section 41
  • Employment Act, 2007Section 45
  • Employment Act, 2007Section 44(4)(d)
  • Employment Act, 2007Section 44(2)
  • Employment Act, 2007Section 44(4)(a)
  • Employment Act, 2007Sections 35, 43, 47(5)
  • Employment Act, 2007Section 36
  • Employment Act, 2007Section 10(7)
  • Employment Act, 2007Section 49(1)(c)
  • Employment Act, 2007Section 49(4)
  • Employment Act, 2007Section 51
  • Constitution of Kenya, 2010Article 159(2)(d)
  • Constitution of Kenya, 2010Article 48
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B
  • Respondent's ConstitutionArticle 7(a)

Cases cited (17)

  • Matsesho V Newton
    (2022) KEELRC 1554
  • CMC Aviation Ltd V Mohammed Noor
    (2015) eKLR
  • Abraham Gumba V Kenya Medical Supplies Authority
    (2014) eKLR
  • Shankar Saklani V DHL Global Forwarding (K) Ltd
    (2012) eKLR
  • Galgalo Jarso Jillo V Agricultural Finance Corporation
    (2021) eKLR
  • Bamburi Cement Ltd V William Kilonzi
    (2016) eKLR
  • Kenfreight EA Ltd V Benson K. Nguti
    (2019) eKLR
  • Benjamin Maundu V Telkom Kenya Ltd
    (2020) eKLR
  • Nahashon Murithi V Teachers Service Commission
    (2016) eKLR
  • Bernard Shem Koweru V United Millers Ltd
    (2020) eKLR
  • Pius Machafu Isindu V Lavington Security Guards Ltd
    (2017) eKLR
  • Walter Ogal Anuro V Teachers Service Commission
    (2013) eKLR
  • Naima Khamis V Oxford University Press E.A Ltd
    (2017) eKLR
  • Seabolo V Belgravia Hotel
    (1997) 6 BLLR 829 (CCMA)
  • Felistas Acheha Ikatwa V Charles Peter Otieno
    (2018) eKLR
  • Postal Corporation of Kenya V Andrew K. Tanui
    (2019) eKLR
  • Loice Atieno V Kenya Commercial Bank Ltd
    (2013) eKLR
Jurisdiction invoked
Original employment and labour relations jurisdiction (Employment Act, 2007)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Musyimi v Kenya Christian Industrial Training Institute (Cause 1919 of 2016) [2023] KEELRC 2466 (KLR)", Case Analysis (2023). Cause No 1919 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2466/eng@2023-10-16

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.