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ELRCDismissedMemorandum of Appeal dated 23rd May 2024 (number not stated in judgment)

United Millers Limited v Musimbi (Appeal E018 of 2024) [2025] KEELRC 105 (KLR)

Employment and Labour Relations Court
22 January 2025
1,525 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court confirmed you cannot backdate a termination letter—if the job already ended, the dismissal is automatically unfair and you pay damages.

What this practically means

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Executive summary

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This is a first appeal to the Employment and Labour Relations Court at Kisumu against a judgment of the Kisumu Chief Magistrate's Court dated 15th May 2024, which found that Lilian Mandu Musimbi's termination by United Millers Limited was unlawful and allowed her claim for unfair termination in its entirety. The Appellant raised three grounds, principally that the Learned Magistrate failed to give it a fair hearing and failed to consider its evidence, and by submissions framed five issues: whether the Respondent was on a salary-based or commission-based contract; whether she earned Kshs. 80,000/-; whether the dismissal was unprocedural; her eligibility for damages; and whether the Amended Claim should be struck out for want of a verifying affidavit. The Respondent supported the trial judgment, relying on the employer's failure to keep written contracts and records under sections 10(6) and 10(7) of the Employment Act and on the breach of sections 41, 43, 45 and 47(5). The Court re-evaluated the evidence and held that the letter of 7th July 2022 purported to terminate the contract with effect from 30th June 2022, seven days after the event; since the Employment Act has no provision for post facto termination, the dismissal was contrary to sections 43, 44 and 45 and ipso facto unfair and unlawful. Further, no hearing or explanation preceded the termination as required by section 41(1). The employer's failure to avail the contract did not limit the claim, and the consistent sum received was properly used as the multiplicand for the Respondent's dues. Finding no error or partiality in the Magistrate's decision, the Court affirmed and upheld the judgment, dismissed the appeal and awarded costs to the Respondent.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Respondent was retained on a salary-based contract or a commission-based contract
  2. 2.Whether the Respondent received a salary of Kshs. 80,000/-
  3. 3.Whether the Respondent was dismissed un-procedurally
  4. 4.Whether the Respondent is eligible for damages as pleaded in the Claim
  5. 5.Whether the Amended Claim ought to be struck out for not having been verified by an affidavit
  6. 6.Whether the Learned Magistrate erred in failing to give the Appellant a fair hearing and failing to consider its evidence

Key legal issues

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01

Validity of a termination communicated after the effective termination date

Holding

The termination was unfair and unlawful because the letter of 7th July 2022 purported to terminate the contract with effect from 30th June 2022, seven days after the fact, contrary to sections 43, 44 and 45 of the Employment Act

Reasoning

The letter notified the Respondent that her contract would not be renewed after 30th June 2022 and that commissions would be paid up to that date. The Court held the Employment Act has no provision for post facto termination; a notice issued seven days after termination cannot satisfy sections 43, 44 and 45, rendering the dismissal ipso facto unfair and unlawful.

p. 3
02

Procedural fairness under section 41 of the Employment Act

Holding

No hearing or explanation was afforded before termination for alleged poor performance, breaching section 41(1) and rendering the dismissal unfair

Reasoning

Section 41(1) requires the employer to explain the reasons for contemplated termination on grounds of poor performance and to allow the employee a representative. The Court found no demonstration that any hearing took place and no record of procedure followed, placing the termination afoul the law and rendering the dismissal unfair and unlawful.

p. 3
03

Burden of proving the contract terms and remuneration

Holding

The employer's failure to reduce the contract to writing and keep records did not limit the claim; the consistent sum received was properly used as the multiplicand for dues

Reasoning

The Court noted the Respondent was employed by the Appellant, who was required to keep records; failure to avail the contract did not limit the claim. Evidence showed the Respondent consistently received the sum used as multiplicand in the calculation of her dues, and there was no error in relying on it as her monthly dues.

p. 4
04

Whether the Learned Magistrate erred in failing to consider the Appellant's evidence

Holding

The Magistrate's findings accorded with the evidence and the law; there was no evidence of partiality, so the finding could not be faulted

Reasoning

The Court re-evaluated the evidence and found the Learned Magistrate decided in the Respondent's favour having regard to the testimony adduced and in tandem with the law. It found no evidence of partiality in the handling of the case and concluded that the conclusions accorded with the evidence and the law, so the appeal lacked merit.

p. 4

Legal principles established

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  • Under the Employment Act there is no provision for termination post facto; a letter terminating a contract after the effective date of termination renders the termination unfair and unlawful
  • An employer must explain the reasons for termination to the employee and afford a hearing before terminating for poor performance, per section 41(1) of the Employment Act
  • Where the employer fails to avail the contract or keep proper employment records, that failure does not limit the employee's claim
  • An appellate court must re-evaluate the evidence and judgment of the inferior court and make its own independent judgment, noting it neither heard nor saw the witnesses testify

Court orders

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  1. 1.The appeal is dismissed
  2. 2.Judgment of the Magistrate's Court is affirmed and upheld
  3. 3.Costs to the Respondent

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

On appeal from
Kisumu Chief Magistrate's Court
Not stated
Jurisdiction invoked
Appellate jurisdiction of the Employment and Labour Relations Court over appeals from the magistrates' court in employment disputes (memorandum of appeal; Employment and Labour Relations Court Rules invoked by parties)

Relief refused

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Appellant's prayer that the appeal be allowed and judgment entered in its favour

The appeal lacked merit; the Magistrate's findings accorded with the evidence and the law

p. 4

Striking out of the Amended Claim for want of a verifying affidavit

The Court did not accept the Appellant's submission that the failure was fatal; the Magistrate's decision was affirmed without striking out

p. 2

Costs

Appeal dismissed with costs to the Respondent

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

This clearly demonstrates the appeal lacks merit and Judgment of the Magistrate’s Court is afirmed and upheld. Appeal is accordingly dismissed with costs to the Respondent.
p. 4Final orders - dismissal of appeal and affirmation of the magistrate's judgment
In the Employment Act, there is no provision for termination post facto.
p. 3Post facto termination under the Employment Act
The termination was ipso facto unfair and unlawful.
p. 3Consequence of post facto termination
There was no record of procedure followed in terms of the Employment Act thus rendering the dismissal unfair and unlawful.
p. 4Section 41 procedural fairness
The Appellant was required to keep records and the fact they did not avail the contract does not limit the claim by the Respondent.
p. 3Employer's statutory duty to keep employment records

Issues in the judgment

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minor

The judgment does not state the appeal case number in the record provided; the case number field could not be completed from the judgment

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "United Millers Limited v Musimbi (Appeal E018 of 2024) [2025] KEELRC 105 (KLR)", Case Analysis (2025). Memorandum of Appeal dated 23rd May 2024 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/105/eng@2025-01-22

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.