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ELRCPartially AllowedNot stated in judgment· [2025] KEELRC 1357 (KLR)

Musoga v Bota Design Build Limited (Employment and Labour Relations Cause E716 of 2022) [2025] KEELRC 1357 (KLR)

Employment and Labour Relations Court
13 May 2025
HWHellen Wasilwa
2,247 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~9 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled an employee was unfairly fired for poor performance because the employer skipped notice and a disciplinary hearing, awarding eight months' salary.

What this practically means

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Executive summary

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The Claimant, employed as a Design Associate on 1st July 2020 on a fixed-term renewable contract at a monthly salary of Kshs 98,747.64, sued the Respondent claiming her employment was unfairly and unlawfully terminated on 10th March 2021 on grounds of poor performance without a fair hearing as required by section 41 of the Employment Act. She sought a certificate of service, 12 months' salary as compensation, costs and interest. The Respondent defended the claim, asserting the termination was for poor performance and fundamental breach, including holding a second job with Design Vitality Limited, tardiness, chronic absenteeism and failure to improve despite performance improvement plans. In evidence, the Respondent's director admitted no show cause letter, warning letter or disciplinary hearing was issued, explaining that it was a small company operating 'as a family'. The court held that having chosen to terminate for poor performance, the Respondent was bound by section 41 of the Employment Act but breached it by neither issuing notice nor subjecting the Claimant to any disciplinary process, and consequently could not establish valid reasons for the termination under section 45(2). The allegation of a second job was rejected as it was not the reason for termination. The termination was found unfair and unjustified. The court awarded a certificate of service, eight months' salary (Kshs 789,976 less statutory deductions) as compensation, costs and interest from the date of judgment.

Key legal issues

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01

Procedural fairness in termination for poor performance

Holding

Termination was procedurally unfair as the Claimant was not issued notice, a show cause letter or subjected to any disciplinary hearing as required by section 41 of the Employment Act

Reasoning

Section 41 requires an employer to explain reasons for contemplated termination and to hear the employee's representations before terminating for poor performance. RW1 admitted no show cause or warning letter was issued and no disciplinary hearing was held. The court therefore found a breach of section 41 and could not sustain the termination, since procedural non-compliance also meant the employer could not demonstrate valid reasons.

p. 5
02

Substantive justification - whether the reason for termination was valid and fair

Holding

The Respondent failed to prove a valid and fair reason for termination as required by section 45(2); the allegation of a second job was not the reason for termination

Reasoning

The termination letter cited poor performance, but the employer admitted no disciplinary process was undertaken to establish sloppiness. The LinkedIn profile suggesting a second job with Design Vitality was disputed - the Claimant said it was her own start-up - and in any event was not the ground for termination, so it could not be raised retrospectively to justify the dismissal.

p. 6

Legal principles established

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  • An employer terminating for poor performance must comply with section 41 of the Employment Act - explain the reasons and hear the employee's representations
  • Failure to issue notice or subject the employee to a disciplinary hearing renders termination unfair under section 45(2)

Court orders

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  1. 1.That she be issued with a certificate of service
  2. 2.The Respondent to pay the Claimant an equivalent of 8 months' salary for unlawful termination = 8x98,747 = 789,976 less statutory deductions
  3. 3.The Respondent to pay costs of this suit and interest at court rates with effect from the date of this Judgment
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes (Employment Act, sections 41 and 45 applied)

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, "Musoga v Bota Design Build Limited (Employment and Labour Relations Cause E716 of 2022) [2025] KEELRC 1357 (KLR)", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1357/eng@2025-05-13

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