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ELRCPartially AllowedELRC Claim dated 7th November, 2021 (Nairobi)· [2025] KEELRC 17 (KLR)

Musa & another v Makini Schools Limited (Cause E815 of 2022) [2025] KEELRC 17 (KLR)

Employment and Labour Relations Court
17 January 2025
6,323 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~25 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The 1st Claimant, an IRE teacher of 18 years at the Respondent school and shop steward of the 2nd Claimant (a trade union), was summarily dismissed in October 2022 for gross misconduct following defamatory blog publications by one Cyprian Nyakundi. Investigations led to Silas Wafula, an employee, admitting authorship; the Respondent then accessed WhatsApp conversations on Wafula's work laptop implicating the 1st Claimant, suspended him, subjected him to a disciplinary hearing before a three-member panel and dismissed him. The Claimants sought reinstatement, declarations that the disciplinary verdict and dismissal were unfair, and a declaration that the Regional HR Director, Ms. Jackie Van Der Merwe, was unqualified. The Respondent maintained the dismissal was for just cause and followed fair procedure. The Court framed two issues: whether the termination was unfair, and whether the reliefs were available. It held the WhatsApp evidence admissible since the messages resided on the employer's laptop and privacy was not invaded, but found no nexus between the 1st Claimant and the blogger's publications. Substantively, the grounds of gross misconduct under section 44(4) of the Employment Act were not established. Procedurally, the panel's composition, late service of bundles and denial of cross-examination breached fair hearing standards. The dismissal was declared unfair, illegal and irregular. Reinstatement was refused under section 12(3)(vii) of the ELRC Act as more than three years had passed, and the prayer against Ms. Van Der Merwe was declined as outside the Court's jurisdiction. Exercising powers under sections 49 and 50 of the Employment Act, the Court awarded one month's salary in lieu of notice and ten months' salary as compensation, subject to taxes and statutory deductions and with interest at court rates.

Key legal issues

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01

Whether the 1st Claimant was unfairly terminated (substantive and procedural fairness)

Holding

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.

Reasoning

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.

p. 11
02

Whether the WhatsApp evidence obtained from the work laptop violated the 1st Claimant's right to privacy

Holding

No - the messages were on the company's laptop, not the Claimant's, so his privacy was not invaded and the evidence was admissible.

Reasoning

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.

p. 9
03

Whether the Claimants were entitled to the reliefs sought

Holding

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.

Reasoning

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.

p. 12

Legal principles established

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  • 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

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  1. 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. 2.One month's salary in lieu of notice (based on salary at the point of separation)
  3. 3.Ten months' salary as compensation for unfair termination (based on salary at the point of separation)
  4. 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. 5.Mention on 24th February, 2025 for recording of final orders
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the ELRC Act, including section 12(3)(vii) on reinstatement

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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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.