Massawa v Shop and Deliver Limited (Employment and Labour Relations Petition E207 of 2023) [2025] KEELRC 2137 (KLR)
The bottom line
#A Kenyan court awarded an unfairly dismissed call centre agent over Kshs 3.6 million because her employer ignored its own disciplinary rules.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether this petition is properly before court.
- 2.Whether the termination of the petitioner was fair and justified.
- 3.Whether the petitioner's rights under the Constitution were flouted.
- 4.Whether the petitioner is entitled to the remedies sought
Key legal issues
#Whether the ELRC or magistrates' court had jurisdiction
The preliminary objection was dismissed; the ELRC was properly seized because the petition sought compensation for violation of constitutional rights, which ousts magistrates' court jurisdiction.
Gazette Notice 6024 of 22/6/2022 delegated employment claims up to Kshs 80,000 to magistrates. However, section 5.8(3) of the Magistrates' Courts Act excludes claims for compensation for violation of Bill of Rights. Since the petitioner sought constitutional damages, jurisdiction remained with the ELRC.
Whether the termination was procedurally fair and substantively justified
The dismissal was unfair and unjustified; the respondent breached its own disciplinary policy and failed to prove a fair hearing under Section 41.
The petitioner was given only about 3 days (not 5 working days) to respond to the NTSC contrary to clause 6.5.1(d); the appeal took 2 months contrary to the 21-day rule; no minutes of the disciplinary hearing were produced; and there was no demonstration she could cross-examine her accusers or present her case. Under Sections 41 and 45(2), the employer bore the burden of proving valid reason and fair procedure, which it failed to discharge.
Whether the petitioner's constitutional rights were breached
Articles 41, 28 and 47 were breached and she was entitled to damages.
Given the treatment of an employee recuperating from a known accident, the court found inhumane and degrading treatment breaching Article 28, breach of fair labour practices under Article 41, and denial of fair administrative action under Article 47.
Legal principles established
#- Magistrates' courts have no jurisdiction to hear claims for compensation for violation of Bill of Rights, even where salary falls within gazetted limits
- Where an employer fails to demonstrate compliance with Section 41 hearing requirements, the dismissal is unfair
- An employer must adhere to its own disciplinary policy timelines
Court orders
#- 1.A declaration that the termination of the Petitioner's employment was unprocedural, unfair, unlawful and wrongful contrary to Articles 41 and 47 of the Constitution, Sections 41, 43 and 45 of the Employment Act and Section 4(3) of the Fair Administrative Action Act
- 2.A declaration that the Respondent treated the Petitioner in a degrading and discriminatory manner contrary to Articles 27 and 28 of the Constitution by summarily dismissing her because she had been injured in an accident
- 3.A declaration that the Respondent breached the Petitioner's right to fair labour practices, fair disciplinary and administrative process and denied her adequate time to respond to allegations
- 4.Payment of 1 month's salary in lieu of notice (Kshs 61,250/-)
- 5.10 months' salary as compensation for unfair termination (Kshs 612,500/-)
- 6.General damages for breach of constitutional rights equivalent to Kshs 3,000,000; total Kshs 3,673,750/- less statutory deductions
- 7.Respondents to pay costs of the suit and interest at court rates from the date of judgment
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Constitution and Employment Act; court held magistrates' courts excluded from Bill of Rights compensation claims
Relief refused
#12 months' salary as compensation for unfair termination
Court awarded 10 months' salary instead of the 12 months sought
Costs
The respondents to pay costs of this suit and interest on the amount awarded at court rates with effect from the date of the judgment
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.
It is therefore my finding that the preliminary objection then has no merit and is disregarded with the finding that this court is properly seized of this petition.
In absence of any demonstration that the respondent followed the above provisions in the disciplinary process, it is my finding that the disciplinary process was flawed and therefore the dismissal of the petitioner was unfair and unjustified.
The respondents have however not demonstrated how the proceedings were conducted. No minutes of the disciplinary hearing have been submitted.
It is evident that the respondent failed to adhere to their own rules.
f. Payment of general damages to the petitioner for breach of her constitutional rights equivalent to 3 million. Total = Kshs 3,673,750/- less statutory deductions.
The respondents to pay costs of this suit and interest on the amount awarded at court rates with effect from the date of this judgement.
Issues in the judgment
#Case number and full names of the parties are not stated anywhere in the judgment extract.
Internal date inconsistency: disciplinary hearing stated as 10 January 2022 though events relate to 2023.
Internal date inconsistency: salary omission referred to as December 2023 although the events concern December 2022.
Replying Affidavit dated 31st December 2025, a date after the 22nd July 2025 judgment date.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Massawa v Shop and Deliver Limited (Employment and Labour Relations Petition E207 of 2023) [2025] KEELRC 2137 (KLR)", Case Analysis (2025). Petition dated 19th October 2023 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2137/eng@2025-07-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.