Musege v Moi Teaching and Referral Hospital Board (Cause E024 of 2023) [2025] KEELRC 630 (KLR)
The bottom line
#An employee won his unfair termination case because his employer added a new accusation in the dismissal letter without ever giving him a chance to respond to it.
What this practically means
#Executive summary
#Key legal issues
#Whether the termination was for a valid reason
The Respondent proved a valid reason - suspicion of theft of hospital drugs, corroborated by the CCTV footage and possession of the drugs
The court viewed the CCTV footage and accepted the Claimant was not captured directly stealing. However, the footage showed him deliberately blocking the camera at the material time, and he was intercepted leaving the hospital in possession of drugs worth Kshs 3,730. This corroborated the Respondent's genuine belief in the reason for termination under sections 43 and 45(2) of the Employment Act.
Whether the procedure followed complied with section 41 of the Employment Act
The procedure was unfair because the termination letter introduced a ground (failure to submit annual practising licence) that was not in the show cause/suspension letter and on which the Claimant was never heard
Although the Claimant attended a disciplinary hearing with a union representative and was heard on the theft charge, the Respondent added a new ground in the termination letter. It was common ground that he was not given an opportunity to defend himself against that ground. Termination on a ground not put to the employee breached the fair-hearing requirement of section 41.
Entitlement to withheld salary during suspension
Having been terminated rather than dismissed, the Claimant was entitled to salary withheld during suspension
The Respondent's HR Manual provides for loss of withheld dues only where an officer is dismissed or otherwise punished; the Manual does not provide for termination with loss of benefits. Since the Claimant was terminated, not dismissed, he was entitled to full benefits including the withheld salary for February to July 2023.
Legal principles established
#- An employer may not rely on a ground of termination that was not put to the employee for defence; including a new charge in the termination letter renders the termination procedurally unfair
- The employer bears the burden of proving the reason or reasons for termination under section 43 of the Employment Act
- An employee who is terminated (and not summarily dismissed) is entitled to full benefits including salary withheld during suspension, even where the HR manual only provides for loss of withheld dues upon dismissal
Court orders
#- 1.A declaration that the Claimant's termination from employment was unfair due to the inclusion of a ground that he was not given an opportunity to defend himself in respect of
- 2.One-month's salary in lieu of notice of Kshs.200,952
- 3.Salary withheld during suspension of Kshs. 1,205,712
- 4.The Respondent is directed to issue the Claimant with a certificate of service strictly in terms of section 51 of the Employment Act
- 5.The Respondent shall meet the costs of this suit
- 6.Interest shall accrue from date of judgment unless payment of decretal sum is made within 30 days from date of judgment
- Jurisdiction invoked
- Original jurisdiction of the Employment and Labour Relations Court under the Employment Act (claim for unfair termination)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Musege v Moi Teaching and Referral Hospital Board (Cause E024 of 2023) [2025] KEELRC 630 (KLR)", Case Analysis (2025). Cause No E024 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/630/eng@2025-02-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.