Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCPartially AllowedHigh Court Civil Suit No. 173 of 2009 (Machakos), transferred to ELRC by consent· [2025] KEELRC 408 (KLR)

Musyimi & 2 others (Suing as Legal Representatives of the Late Joshua Muthama Musyimi) v Attorney General & 2 others (Employment and Labour Relations Cause 141 of 2014) [2025] KEELRC 408 (KLR)

Employment and Labour Relations Court
30 January 2025
OKOcharo Kebira
4,934 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~20 min to read original · ~4 min brief

The bottom line

#

Kenya's Employment Court ruled a civil servant was unfairly and discriminatorily fired after acquittal, awarding his estate damages and pension benefits.

What this practically means

#

Executive summary

#
The deceased, Joshua Muthama Musyimi, a Clerical Officer who rose to Job Group J, was interdicted in October 2003 following a robbery at Machakos District Hospital where he worked on secondment. He and two colleagues were charged with theft by a person employed in the Public Service and acquitted for lack of evidence. After acquittal, the colleagues were reinstated, but the deceased was dismissed with retrospective effect on 4th April 2006 for negligence of duty amounting to gross misconduct. His appeal to the Public Service Commission and subsequent review were unsuccessful. The deceased died before the suit, filed at the High Court, Machakos in 2009 and transferred to the ELRC by consent, could be heard; his legal representatives were substituted. The court identified three issues: discrimination, wrongful and unfair dismissal, and the reliefs available to the estate. The court declined to apply the Employment Act, 2007, holding the cause of action predated it. Relying on section 82(2) of the retired Constitution, it found the deceased was differentially, unreasonably and arbitrarily treated in violation of his right against discrimination, the evidential burden having shifted to the Respondents who offered no explanation. The dismissal without notice was held wrongful. The court granted a declaration of discriminatory and unfair termination, general damages of KShs. 1,286,730 (twelve months' gross salary), withheld interdiction-period salary, and declared entitlement to pension or gratuity, directing the 3rd Respondent to compute benefits within 21 days, with interest at court rates and costs of the suit to the Claimants. Reinstatement was not granted.

Key legal issues

#
01

Whether the deceased was discriminated against contrary to section 82(2) of the retired Constitution

Holding

Yes - the deceased was differentially, unreasonably and arbitrarily treated compared to his two colleagues who were reinstated after acquittal, violating section 82(2) of the retired Constitution.

Reasoning

The deceased and two colleagues were interdicted and charged over the same robbery and all acquitted. After acquittal, the colleagues' interdiction was lifted and they were reinstated, while the deceased was dismissed on a fresh administrative charge with no explanation offered. The court held the claimants discharged the initial evidential burden under sections 108 and 109 of the Evidence Act, and the Respondents failed to justify the differential treatment.

p. 9
02

Whether the summary dismissal was wrongful and unfair

Holding

The dismissal was wrongful, being without notice, but the Employment Act regime did not apply as the cause of action predated it.

Reasoning

The dismissal occurred on 4th April 2006 before the Employment Act, 2007 was enacted, so pre-2007 contract-law principles governed. Under those principles, dismissal was wrongful only if notice was not issued. The dismissal letter took retrospective effect and was without notice, hence wrongful. The Act could not be applied merely because the review rejection postdated it.

p. 9
03

Whether the reliefs sought can be availed to the estate

Holding

Partially - declarations, general damages equivalent to twelve months' gross salary, interdiction-period salary, and pension/gratuity entitlement were granted.

Reasoning

Having found a constitutional breach of the right against discrimination, the court awarded general damages of KShs. 1,286,730, directed payment of withheld salary during interdiction, and declared entitlement to pension or gratuities, directing the 3rd Respondent to compute the benefits within 21 days.

p. 10

Legal principles established

#
  • An employer is not barred from instituting internal disciplinary proceedings against an officer who has been acquitted of a criminal charge arising from the same conduct, under Regulation G.33(4) of the Code of Regulations.
  • Mere differential treatment does not amount to discrimination; the differentiation must be unreasonable or arbitrary, and the burden of proving discrimination lies on the claimant under sections 108 and 109 of the Evidence Act.
  • Pre-2007 employment disputes were governed by contract law and the Employment Act did not apply to dismissals occurring before its enactment, notwithstanding that internal appellate/review processes concluded after it came into force.

Court orders

#
  1. 1.A declaration that the deceased's right against discrimination was breached, and the termination of his employment was discriminatory and unfair.
  2. 2.General damages for violation of the right not to be discriminated against, KShs. 1,286,730.
  3. 3.Unpaid salary for the period the deceased was under interdiction.
  4. 4.A declaration that the estate is entitled to pension or gratuity that could ordinarily accrue to a civil servant of the deceased's Job Group at retirement or lawful termination.
  5. 5.The 3rd Respondent directed to compute and serve the pension/gratuity computation on the Claimants within 21 days, with a mention to follow for recording a final order on benefits.
  6. 6.Interest at court rates from the date of Judgment till full payment.
  7. 7.Costs of the suit to the Claimants.

Authorities

#

Legislation

  • Constitution of Kenya (retired)Section 82(2) and (3)
  • Employment ActSections 41, 43, 44(4)(c) and (g), 45(2), 47(5), 49(1)(c)
  • Evidence ActSections 108, 109
  • Penal CodeSection 280
  • Code of Regulations, 2006Regulation G.33(4)
  • Public Service Commission ActRegulations thereunder (unspecified)
  • International Labour Organization Discrimination (Employment and Occupation) Convention, 1958No. 111

Cases cited (9)

  • Kenafric Industries Limited v John Gitonga Njeru
    (2016) eKLR
  • David Githinji Kibuge vs New Cooperative Creameries
    (2019) eKLR
  • George Onyango Akuti -VS- G4S Security Services Kenya Limited
    (2013) eKLR
  • Kenya Revenue Authority versus Maginga Salim Murgani
    (2010) eKLR
  • Peter K. Waweru v Republic
    [2006] eKLR
  • Mohammed Abduba Dida v Debate Media Limited & another
    [2018] eKLR
  • Kadar Nath v State of W. B
    [1953] SCR 835[843]
  • Samson Gwer & 5 others v Kenya Medical Research Institute & 3 others
    [2020] eKLR
  • Raila Odinga & others v Independent Electoral & Boundaries Commission & others
    Petition No. 5 of 2013
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction following consent transfer from the High Court, Machakos

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.

Cite this brief

#

Cite this brief

Caselaw, "Musyimi & 2 others (Suing as Legal Representatives of the Late Joshua Muthama Musyimi) v Attorney General & 2 others (Employment and Labour Relations Cause 141 of 2014) [2025] KEELRC 408 (KLR)", Case Analysis (2025). High Court Civil Suit No. 173 of 2009 (Machakos), transferred to ELRC by consent. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/408/eng@2025-01-30

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