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ELRCPartially AllowedNot stated in the judgment

Mbuvi v Jays Pyrotechnics Limited (Cause 254 of 2019) [2025] KEELRC 2026 (KLR)

Employment and Labour Relations Court
10 July 2025
1,372 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~5 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled the dismissal procedurally unfair but awarded the employee only unpaid salary because he walked away from the restructuring.

What this practically means

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Executive summary

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The claimant, employed orally as Head of the Creative Department from 12.11.2018 at a monthly salary of Kshs 250,000/-, sued for unpaid January 2019 salary, compensation for unlawful termination, pay in lieu of notice, costs and interest. He alleged dismissal without hearing at the end of January 2019, failure to pay salaries on time, non-remittance to NHIF and NSSF, absence of a written contract, and a unilateral change of his terms from employee to contractor, with his workplace relocated without notice. The respondent asserted the claimant absconded duty, was lax and punctually unreliable, received a warning letter, and rejected a reassignment following clientele reduction, instead demanding job-per-job engagement; it claimed all dues were paid. The respondent called no witness. The Court found a contract of employment existed, accepted the claimant's un-rebutted testimony that he was dismissed, and held the dismissal procedurally unfair because the respondent failed to invoke redundancy under section 40 or notice and hearing under section 41 of the Employment Act. On remedies, the Court awarded the balance of the January 2019 salary at Kshs 190,000/-, payable by 01.09.2025 with interest at court rates thereafter. Leave pay failed for want of particularisation and insufficient service; notice pay and compensation were refused because the claimant fully contributed to the separation by walking away amid restructuring and had a warning letter on record. Each party was ordered to bear its own costs. Judgment entered partially in the claimant's favour.

Questions the Court framed

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

  1. 1.Whether the parties were in a contract of employment
  2. 2.Whether the respondent terminated the contract of employment
  3. 3.Whether the dismissal was unfair
  4. 4.What remedies are due to the claimant

Key legal issues

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01

Existence of a contract of employment

Holding

The respondent admitted employing the claimant on 12.11.2018; the parties were in a contract of employment

Reasoning

The respondent admitted it employed the claimant in its Creative Development Department on 12.11.2018 at a monthly pay of Kshs 250,000/-. The Court therefore found as a fact that the relationship was one of employment notwithstanding the respondent's later attempt to treat the claimant as a contractor.

p. 2
02

Whether the respondent terminated the employment

Holding

The claimant's un-rebutted testimony that he was dismissed was accepted; the respondent called no witness

Reasoning

The claimant testified by adopting his witness statement describing the dismissal and the unilateral change of terms and workplace. The respondent did not call any witness to rebut that testimony, so the Court accepted the claimant's account that he was dismissed.

p. 3
03

Fairness of the dismissal

Holding

The dismissal was procedurally unfair; the respondent should have followed section 40 (redundancy) or section 41 (notice and hearing) of the Employment Act

Reasoning

Even if the claimant had resisted the restructuring of the enterprise, the respondent ought to have invoked due procedure, either redundancy under section 40 or notice and hearing for alleged absenteeism under section 41. No fair procedure was adopted, rendering the dismissal unfair.

p. 3
04

Remedies

Holding

January 2019 salary balance of Kshs 190,000 awarded; notice pay and compensation refused for the claimant's contributory conduct; leave pay refused for want of particularisation

Reasoning

The respondent did not prove the January 2019 salary was fully paid, leaving Kshs 190,000. Leave pay failed as unparticularised and unearned. Despite the procedural unfairness, the claimant's walking away, warning letter and abandoning negotiations amounted to full contribution to the separation, denying him notice pay and compensation.

p. 3

Legal principles established

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  • An employer must invoke due procedure such as redundancy under section 40 or notice and hearing under section 41 of the Employment Act before effecting a separation, even where the employee resists restructuring
  • Unparticularised liquidated claims fail for want of particularisation and strict proof
  • An employee who fully contributes to his separation may be denied compensation for unfair termination and pay in lieu of notice

Court orders

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  1. 1.The respondent to pay the claimant Kshs. 190,000.00 by 01.09.2025 failing interest to run thereon at court rates from the date of filing the suit till the date of full payment
  2. 2.Each party to bear own costs of the suit

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Employment and labour relations dispute under Article 162(2)(a) of the Constitution and the Employment Act, 2007

Relief refused

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Compensation for unlawful termination and one month pay in lieu of notice

The claimant fully contributed to his separation by walking away amid restructuring and had a warning letter on record

p. 3

Pay in lieu of annual leave

Not particularly pleaded as a liquidated claim and the claimant had not served 12 months to earn leave under section 28 of the Employment Act

p. 3

Costs

Each party to bear own costs of the suit

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.

It cannot be said that the respondent adopted a fair procedure to dismiss the claimant such as on account of redundancy in section 40 of the Employment Act, 2007 or a notice and hearing in view of the alleged absenteeism per section 41 of the Act
p. 3procedural fairness in termination
Being a liquidated claim, the same will fail for want of particularised pleading and strict proof
p. 3particularisation of liquidated claims
the Court finds that the claimant full contributed to the separation and is undeserving of the one-month payment in lieu of notice or compensation for unfair termination
p. 3employee contribution to separation
The respondent to pay the claimant Kshs. 190,000.00 by 01.09.2025 failing interest to run thereon at court rates from the date of filing the suit till the date of full payment
p. 3final orders

Issues in the judgment

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minor

The judgment lists four issues for determination but the text only expressly identifies issues 1 to 4 in fragmented form and does not restate the full list of issues as framed

minor

Case number is not stated anywhere in the judgment text supplied

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, "Mbuvi v Jays Pyrotechnics Limited (Cause 254 of 2019) [2025] KEELRC 2026 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2026/eng@2025-07-10

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