Musa & another v Makini Schools Limited (Cause E815 of 2022) [2025] KEELRC 17 (KLR)
The bottom line
#Makini School must pay a dismissed teacher 11 months' salary after Kenya's Employment Court found his disciplinary hearing unfair, but refused reinstatement.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the 1st Claimant was unfairly terminated.
- 2.Whether the Claimants are entitled to the reliefs sought.
Key legal issues
#Whether the 1st Claimant was unfairly terminated (substantive and procedural fairness)
The dismissal was unfair both substantively and procedurally: the grounds of gross misconduct under section 44(4) were not established, there was no nexus between the 1st Claimant and the blogger's publications, and the disciplinary hearing was improperly constituted and denied him adequate time, documents and cross-examination.
The Court applied sections 43, 45, 47(5) and 44(4) of the Employment Act, guided by Janet Nyandiko and Pius Machafu Isindu. WhatsApp messages found on the employer's laptop were admissible as privacy was not invaded, but they did not directly implicate the Claimant. His 18 years of unblemished service and role as shop steward weighed against the misconduct finding. Procedurally, objections to panel composition, late bundles and lack of cross-examination of Wafula were unrebutted, rendering the process inconsistent with fair hearing.
Whether the WhatsApp evidence obtained from the work laptop violated the 1st Claimant's right to privacy
No - the messages were on the company's laptop, not the Claimant's, so his privacy was not invaded and the evidence was admissible.
Relying on section 6(1)(d) of the Access to Information Act and the authorities GJK v KPMG and Peter Appollo Ochieng' v Instarect Ltd, the Court held that communications on an employer-issued laptop are not protected by the employee's privacy right; the employer's access was proportionate to the seriousness of the defamatory-publication allegations.
Whether the Claimants were entitled to the reliefs sought
Partially: declaration of unfairness granted; reinstatement refused under section 12(3)(vii) ELRC Act; the IHRM-related prayer refused for lack of jurisdiction; compensation of notice pay plus ten months' salary awarded suo motu under sections 49 and 50 of the Employment Act.
Having found unfair termination, the Court declared the disciplinary verdict unfair but held reinstatement statutorily barred after three years. The prayer against Ms. Van Der Merwe failed because she was not a party and qualification matters lie with IHRM. Although compensation was not pleaded, section 49 empowered the Court to award it; ten months was deemed adequate given the Claimant's omission to report a colleague's activities.
Legal principles established
#- An employer must prove both substantive justification and procedural fairness for termination under sections 43, 45 and 47(5) of the Employment Act
- A disciplinary hearing is a quasi-judicial process entitling the employee to adequate time, documents and opportunity to cross-examine
- An improperly constituted or biased disciplinary committee vitiates a fair hearing
- The Court may award compensation for unfair termination under section 49 even where the employee did not plead it
Court orders
#- 1.A declaration that the verdict/outcome of the disciplinary hearing finding the 1st Claimant guilty of gross misconduct was unfair, illegal and irregular as prayed
- 2.One month's salary in lieu of notice (based on salary at the point of separation)
- 3.Ten months' salary as compensation for unfair termination (based on salary at the point of separation)
- 4.Items (i) and (ii) to be subject to taxes and statutory deductions but to attract interest at court rates from the date of judgment until payment in full
- 5.Mention on 24th February, 2025 for recording of final orders
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the ELRC Act, including section 12(3)(vii) on reinstatement
Relief refused
#Reinstatement of the 1st Claimant without loss of benefits
Section 12(3)(vii) of the ELRC Act bars reinstatement where more than three years have elapsed since termination
Declaration that Ms. Jackie Van Merwe is not a qualified Human Resource practitioner and reversal of her decisions
Outside the ELRC's jurisdiction; IHRM is the competent body and Ms. Merwe was not a party
Setting aside and expunging of the summary dismissal decision
Reinstatement not available and no claim for compensation was pleaded, though the Court made a statutory award under section 49
Costs
not_stated
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In conclusion, the court finds that a fair procedure was not followed at the Disciplinary Hearing and that rendered the separation herein unfair within the meaning of section 45 of the Employment Act.
The dismissal was therefore unfair both on substantive fairness and procedural fairness.
One month's salary in lieu of notice ( based on salary at the point of separation)
Ten months' salary as compensation for unfair termination ( based on salary at the point of separation)
Items (i) and (ii) shall be subject to taxes and statutory deductions but shall attract interest at Court rates from the date of this judgment until payment in full.
This is a statutory provision and the fact that an employee did not plead it does not prevent the Court from making the award where merited.
Issues in the judgment
#Discrepancy in evidence: Respondent's witness stated no objection was raised to panel composition or timing, while the Court found the Claimant's objections unrebutted
Dates inconsistently pleaded by Respondent: suspension following 'meeting of 20th August 2022' versus suspension letter dated 30th August 2022
Judgment recites claim dated 7th November 2021 yet the events pleaded (dismissal in October 2022) post-date it, and Respondent's Reply is dated 19th June 2023
Costs of the suit were prayed for but no costs order appears in the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Kendagor v Dig Deep (Africa) (Cause 1644 of 2017) [2025] KEELRC 2753 (KLR)[2025] KEELRC 2753 (KLR)9 Oct 2025followed
- Kenya Hotels Allied Workers Union & another v Crest Hotel t/a Hotel Rio (Employment and Labour Relations Cause E6497 of 2020) [2025] KEELRC 2507 (KLR)[2025] KEELRC 2507 (KLR)22 Sept 2025
Cite this brief
#Cite this brief
Caselaw, "Musa & another v Makini Schools Limited (Cause E815 of 2022) [2025] KEELRC 17 (KLR)", Case Analysis (2025). ELRC Claim dated 7th November, 2021 (Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/17/eng@2025-01-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.