Mulwa v Kenya Film Commission (Employment and Labour Relations Cause E528 of 2021) [2023] KEELRC 3102 (KLR)
The bottom line
#Kenya's Employment Court ordered Kenya Film Commission to pay a dismissed manager over Kshs 3.7 million for firing him without a hearing or valid reason.
What this practically means
#Executive summary
#Key legal issues
#How the employment was terminated
The Claimant's employment was terminated by the Respondent through its letter dated 16th June 2021, which amounted to summary dismissal
The parties took opposite positions on how the separation occurred. The Court reasoned that where a party is in repudiatory breach, the contract subsists until the innocent party accepts the breach and ends the contract. The Respondent's letter of 16th June 2021 accepting what it considered repudiation brought the contract to an end.
Procedural fairness of the termination
The dismissal was procedurally unfair; the mandatory procedure under section 41 of the Employment Act and the disciplinary procedure in the HR Manual were not followed
Section 41 prescribes a mandatory three-component process: notification in writing of the grounds, a hearing with the right to be accompanied, and consideration of representations. The Respondent adduced no evidence of following this procedure and counsel did not address section 41. The HR Manual's disciplinary procedure mirrored section 41 and was also not applied.
Substantive fairness of the termination
The dismissal was substantively unfair because the reason - refusal to accept conversion of terms - was invalid in light of the concluded agreement of 26th May 2020 retaining permanent and pensionable terms
The letter of 26th May 2020 recorded a negotiated agreement that the Claimant serve on permanent and pensionable terms. The later letter of 30th July 2020 was never proved to have been served, did not mention the 26th May agreement, and no Board minutes supported it; it was an afterthought. Dismissal for refusing to abandon an agreed position could not be a valid and fair reason.
Unilateral variation of allowances
The Respondent's reduction of the Claimant's allowances without consultation breached section 10(5) of the Employment Act and amounted to an unfair labour practice; the claim for unpaid house allowance succeeded
Salary and allowances are protected terms that cannot be varied without consultation. There was no specific denial of the detrimental variation of house allowance from Kshs. 60,000 to Kshs. 50,000. The Court adopted the reasoning in the Kenafric Industries case and held the relief was pleaded with sufficient specificity.
Legal principles established
#- An employer bears the legal burden of proving both procedural fairness and the validity and fairness of the reasons for termination
- Salary and contractual or statutory allowances may not be varied unilaterally without consultation; such unilateral variation is unlawful ab initio
- Where an employer alleges service of a document on an employee and the employee denies it, the employer must prove service
Court orders
#- 1.A declaration that the termination of the Claimant's employment was unfair and unlawful
- 2.Compensation for unlawful termination pursuant to section 49[1][c] of the Employment Act, 11 months' gross salary - Kshs. 3,142,700
- 3.One month's salary in lieu of notice - Kshs. 285,700
- 4.Compensation for unutilized leave days - Kshs. 132,560
- 5.Unpaid House Allowance (10,000x17) - Kshs. 170,000
- 6.Interest at Court rates on the sums awarded from the date of judgment till full payment
- 7.The Respondent shall bear the costs of the suit
- 8.The Respondent to issue the Claimant with a Certificate of Service within 30 days
- Jurisdiction invoked
- Employment and Labour Relations Court Act, Section 12; 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.
- Odhiambo v Prinias Enterprises Ltd t/a Prinias Hotel (Cause E031 of 2024) [2025] KEELRC 1774 (KLR)[2025] KEELRC 1774 (KLR)19 Jun 2025
Cite this brief
#Cite this brief
Caselaw, "Mulwa v Kenya Film Commission (Employment and Labour Relations Cause E528 of 2021) [2023] KEELRC 3102 (KLR)", Case Analysis (2023). Memorandum of Claim dated 28th June 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/3102/eng@2023-11-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.