Musyoki v Afya Co-operative Savings & Credit Society Ltd (Cause E442 of 2021) [2024] KEELRC 1174 (KLR)
The bottom line
#A Kenyan employer who fires a worker without a hearing and cannot prove its reasons must pay compensation, even if misconduct is suspected.
What this practically means
#Executive summary
#Key legal issues
#Whether the summary dismissal was substantively unfair
The Respondent failed to prove a valid and fair reason for the dismissal.
The suspension letter made no reference to any investigation; the IT report was tendered by neither party; RWI was unaware of the documents; no notice to show cause was issued despite the Claimant's detailed response seeking particulars which went unanswered. Under Sections 43 and 47(5) of the Employment Act, the employer bore the burden of proving the reason and failed to discharge it.
Whether the dismissal was procedurally fair
Procedure under Section 41 was not followed; dismissal was procedurally unfair.
The Respondent issued a suspension letter and next communicated the summary dismissal; there was no notice to show cause, no invitation to a hearing, and the Claimant did not attend the directors' meeting of 15th August 2018 whose minutes were not produced. RWI confirmed the Claimant was never invited to any meeting before dismissal, breaching the mandatory Section 41 precepts.
Whether the counter-claim for Kshs.5,090,883 was proved
Counter-claim not proved and disallowed.
The Respondent produced neither loan agreements nor repayment schedules; a payslip is not a contractual document. Further, the Managing Director's letter of 27th February 2019 showed the dormant loan had been offset from shares and the balance recovered from guarantors, undermining the claim.
Jurisdiction over the counter-claim
The court has jurisdiction since the loans were accessed by virtue of employment.
The Claimant argued the loan dispute was severable from employment, but the court held the employment and borrowing contracts were interdependent, the facilities being enjoyed by reason of employment status, estopping the Claimant from asserting severability.
Legal principles established
#- A termination must be both substantively justifiable and procedurally fair; failure of either renders it unfair.
- The employer bears the burden of proving the reasons for termination; failure renders termination unfair under Section 45.
- A payslip is not a contractual document and cannot prove loan agreements.
- The ELRC has jurisdiction over matters incidental to employment, including employee loans accessed by virtue of employment.
Court orders
#- 1.Declaration that termination of employment was unlawful
- 2.Three months' salary in lieu of notice Kshs.376,050/=
- 3.Equivalent of six months gross salary Kshs.751,920/= (total Kshs.1,127,970/=)
- 4.Certificate of service
- 5.50% of the costs
- 6.Interest at court rates from date of judgment till payment in full
- Jurisdiction invoked
- Employment and Labour Relations Court Act, 2011; Employment Act, 2007
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Musyoki v Afya Co-operative Savings & Credit Society Ltd (Cause E442 of 2021) [2024] KEELRC 1174 (KLR)", Case Analysis (2024). Cause No E442 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1174/eng@2024-05-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.