Musavi v Vajas Manufacturing Limited (Cause 1417 of 2018) [2023] KEELRC 2840 (KLR)
The bottom line
#A Kenyan court ruled an employee's dismissal was fair in substance but unfair in procedure, awarding two months' salary as compensation.
What this practically means
#Executive summary
#Key legal issues
#Whether the Respondent had a valid and fair reason to summarily dismiss the Claimant
Yes - the Claimant's failure to take initiative over 4 days to remedy the Doming Machine breakdown amounted to dereliction of duty justifying termination substantively.
The court analysed the email exchanges of 11th to 14th July 2016 and found that the Claimant, as Maintenance Supervisor, did nothing beyond writing emails despite requests, had no worksheets or record keeping, and portrayed himself as helpless while Eric worked under him. His inaction for four days was dereliction of duty by a supervisor, satisfying the substantive justification test under Section 43 of the Employment Act.
Whether the termination procedure complied with Section 41 of the Employment Act
No - the procedure was flawed: charges were not explained at the start of the hearing, no investigation was conducted, Eric was not called as a witness, and the Claimant was given less than a day's notice.
Although the Claimant was notified of charges, invited to a hearing and allowed a representative, the hearing lacked agenda items, there was no evidence the charges were read out in the presence of his representative, no inquiry unearthed the department's true state of affairs, and the key witness Eric was never invited. Less than a day's notice was not reasonable time, implicating the right to fair hearing under Section 41.
Whether the Claimant was entitled to CBA-based reliefs (notice pay and gratuity)
No - the CBA did not apply to him as he was not a union member and his supervisory position was not covered by it.
The Claimant testified he was not a union member, his payslip showed no union dues, Clause 24 of the CBA benefited only unionisable employees, Part IV of the CBA did not cover the Maintenance Supervisor position, and gratuity is a contractual discretionary payment payable at the employer's discretion.
Legal principles established
#- Sections 41, 43, 44, 45 and 47(5) of the Employment Act prescribe the architecture of fair termination, and Section 45 requires both a valid and fair reason and fair procedure.
- Under Section 43(2), the reason for termination is assessed on what the employer genuinely believed to exist at the time of termination.
- Procedural fairness requires charges to be explained to the employee at the commencement of the disciplinary hearing, reasonable notice, and an opportunity for the employee's representative to hear and make representations.
Court orders
#- 1.A declaration that termination of the Claimant's employment by the Respondent was unfair.
- 2.Equivalent of 2 months gross salary compensation.
- 3.Costs of this suit to the Claimant.
- 4.Interest at court rates from the date of judgment till payment in full.
- Jurisdiction invoked
- First-instance claim under the Employment Act, 2007 before the Employment and Labour Relations Court
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Musavi v Vajas Manufacturing Limited (Cause 1417 of 2018) [2023] KEELRC 2840 (KLR)", Case Analysis (2023). Cause No 1417 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2840/eng@2023-11-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.