Tisar Limited v Musyoka (Appeal E038 of 2022) [2025] KEELRC 1351 (KLR)
The bottom line
#A Kenyan court cut a former employee's award from over Kshs 250,000 to Kshs 75,000, confirming that proof and timing matter in employment claims.
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 trial court erred by not considering the impact of the agreement dated 17th July, 2018 that the Respondent signed that he will have no future claims against the Appellant
- 2.Whether the trial court erred by finding that the Respondent's termination was unfair
- 3.Whether the trial court erred in awarding the reliefs sought by the Respondent
Key legal issues
#Effect of the agreement of 17th July 2018 acknowledging payment and waiving future claims
The letter was not a discharge voucher or settlement agreement in the strict sense; it covered only statutory dues and could not bar an unfair termination claim
The court scrutinised the termination letter and found it merely acknowledged payment of statutory dues (leave pay, notice pay, days worked), which are payable regardless of fairness of termination. Following Coastal Bottlers v Kimathi Mithika, the court held that whether a discharge bars further claims depends on its import and voluntariness, and here it could not bar an unfair termination claim. It noted the trial court could have factored in statutory relief paid.
Whether the Respondent's termination was unfair
Yes - the Appellant failed to prove the reason for termination and did not follow the procedure under section 41 of the Employment Act
The burden of proving reasons for termination lies on the employer under section 43. The termination letter vaguely stated reasons were 'well known' to the Respondent, the certificate of service said he left on his own accord, and no Performance Improvement Plan was set. Merely citing poor performance is insufficient; the employer must show the employee knew performance standards, was supported, and given time to improve. No show cause letter or disciplinary hearing occurred, so both substantive and procedural fairness failed.
Whether the reliefs awarded by the trial court were justified
Compensation of Kshs 75,000 (5 months' salary) upheld; house allowance, leave pay, severance pay and underpayments overturned
The Respondent failed to prove employment in 2014 (no payslip produced), shifting the evidential burden to the Appellant whose NSSF records showed employment from November 2015. House allowance and leave pay claims were time-barred under section 90; severance pay failed for want of proof of the 2014-2015 employment. Compensation under section 49(4), considering over 3 years of service and the employer's conduct, was found appropriate at 5 months' salary and not inordinately high.
Legal principles established
#- A payment of statutory dues under a termination letter is not a discharge voucher barring claims for unfair termination
- Termination must satisfy both substantive justification and procedural fairness
- House allowance and leave pay are continuing injuries subject to the 12-month limitation in section 90 of the Employment Act
Court orders
#- 1.Appeal partially succeeds with no orders as to costs
- 2.House allowance award set to NIL
- 3.Severance pay award set to NIL
- 4.Unpaid leave days award set to NIL
- 5.Underpayments in the decree expunged (NIL)
- 6.Compensation for unfair termination maintained at Kshs 75,000/=; total award Kshs 75,000/=
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Magistrates' Court (trial court)
- Jurisdiction invoked
- Appellate jurisdiction over appeals from the trial court in an employment claim (Employment and Labour Relations Court, Appeals Division)
Relief refused
#House allowance of Kshs 105,750/=
House allowance is a continuing injury under section 90 of the Employment Act and the claim filed more than 12 months after cessation of employment was out of time; employment in 2014 not proved
Severance pay of Kshs 7,500/=
Respondent did not prove employment between August 2014 and October 2015 as alleged
Unpaid leave days of Kshs 5,714/=
Leave pay is a continuing injury and the claim was filed outside the 12-month limitation period
Underpayments of Kshs 144,520/= in the decree
None was claimed or awarded by the trial court
Costs
No orders as to costs
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 Appellant's Appeal partially succeeds with no orders as to costs as follows;
House Allowance…………………….………….………….NIL
Compensation for unfair termination……Kshs 75,000/=
Whether or not a settlement agreement or a discharge voucher bars a party from making further claims depends on the circumstances of each case.
It is an established principle that for termination to pass fairness test there should be both substantial and procedural fairness.
merely citing poor performance is not enough
The Court finds that the Respondent failed to prove his employment in the year 2014 despite claiming to have pay slips for the year 2014 in his possession
Issues in the judgment
#The judgment states 'Having found that the Appellant was unfairly terminated' - referring to the Respondent, an apparent drafting error swapping the parties
Counsel for the Respondent refers to the Appellant as 'the Applicant' in the submissions section on reliefs, inconsistent with the party designation elsewhere
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Tisar Limited v Musyoka (Appeal E038 of 2022) [2025] KEELRC 1351 (KLR)", Case Analysis (2025). Memorandum of Appeal dated 15th March 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1351/eng@2025-05-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.