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ELRCPartially AllowedNot stated in judgment· [2025] KEELRC 2182 (KLR)

Musau v Shiv Dhruv Manufacturers Limited (Cause E519 of 2024) [2025] KEELRC 2182 (KLR)

Employment and Labour Relations Court
24 July 2025
1,286 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenyan employers cannot dismiss staff for desertion without proving they tried to reach the employee, and every dismissal must include a fair hearing.

What this practically means

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Executive summary

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The Claimant, formerly employed by the Respondent as an Electrician from 1st October 2020, sued for wrongful and unfair summary dismissal effected on 6th March 2024. He sought a declaration of wrongful dismissal, reinstatement, twelve months' salary in compensation, unpaid salary, leave pay for 74 accrued days, severance pay, outstanding NSSF and NHIF dues, damages for hazardous working conditions, general damages and costs. The Respondent denied the claim, asserting that the Claimant deserted duty. The court framed two issues: whether wrongful dismissal was proved, and entitlement to remedies. On the first, the court found the Respondent's assertion of desertion unproved, since an employer alleging desertion must demonstrate efforts made to reach out to the employee, and no such evidence was adduced. Further, the Respondent's own witnesses conceded that the Claimant was dismissed without an opportunity to defend himself as required under Section 41 of the Employment Act. The medical report recommendation that he work away from heat was admitted but the Respondent's evidence of redeployment was undocumented and inconsistent. On remedies, reinstatement was declined owing to the time lapse since separation; instead six months' salary was awarded as compensation, taking into account length of service, the Claimant's non-contribution to the dismissal and the denial of a hearing. One month's salary in lieu of notice and leave pay for 74 days were also awarded, the Respondent having no leave records. Claims for unpaid salary balance, severance pay, general damages and statutory dues were disallowed as unproved. Total award: Kshs. 84,585, with interest at court rates from the date of judgment and costs to the Claimant.

Key legal issues

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01

Whether desertion of duty justified summary dismissal

Holding

Desertion was not proved because the Respondent adduced no evidence of efforts to reach the Claimant.

Reasoning

While desertion is a serious offence that may lead to summary dismissal, the employer bears the burden of showing efforts made towards reaching out to the employee. The Respondent's witnesses asserted desertion but led no evidence of any attempts to establish the Claimant's whereabouts or to have him resume duty. Authorities affirming this requirement were applied, and the averment of desertion consequently failed.

p. 3
02

Whether the dismissal complied with Section 41 of the Employment Act

Holding

The dismissal was wrongful as the Claimant was not given an opportunity to defend himself.

Reasoning

Section 41 requires an employer, before termination on grounds of misconduct, to explain the reasons to the employee and to hear and consider any representations. The Respondent's own witnesses conceded that the Claimant was summarily dismissed without such an opportunity. In the circumstances, the procedural requirements of fair hearing under the Employment Act were breached and the dismissal was wrongful and unfair.

p. 3
03

Whether the Respondent complied with the medical recommendation to redeploy the Claimant away from heat

Holding

The Respondent's evidence on redeployment was unconvincing and undocumented.

Reasoning

The medical report of 28th August 2023 recommended that the Claimant work away from heat. The Production Supervisor testified to a transfer from the Crusher Machine to Screen Printing but was hazy on the date and produced no document evidencing the transfer. The General Manager's assertion that there was no heat at the Crusher Machine contradicted this. The court found the Respondent's witnesses ambivalent on the action taken.

p. 2

Legal principles established

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  • An employer alleging desertion must demonstrate efforts made to reach the employee before treating the employment as terminated.
  • Before summary dismissal an employer must hear and consider the employee's representations as required by Section 41 of the Employment Act.

Court orders

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  1. 1.Judgment entered in favour of the Claimant in the sum of Kshs. 84,585, comprising 6 months' salary in compensation (Kshs. 53,610), 1 month's salary in lieu of notice (Kshs. 8,935) and leave pay for 74 days (Kshs. 22,040)
  2. 2.Interest at court rates from the date of judgment until payment in full
  3. 3.Costs of the case awarded to the Claimant

Authorities

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Legislation

  • Employment ActSection 37
  • Employment ActSection 41
  • Employment ActSection 42(1)
  • Employment ActSection 44(3) and (4)

Cases cited (4)

  • Stanley Omwoyo Onchweri v Board of Management Nakuru YMCA Secondary School
    [2015] eKLR
  • Dickson Matingi v Db Schenker Limited
    [2016] eKLR
  • Seabolo v Belgravia Hotel
    (1997) 6 BLLR 829 (CCMA)
  • Felistas Acheha Ikatwa v Charles Peter Otieno
    [2018] KEELRC 2491 (KLR)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act (claim for wrongful dismissal and remedies)

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, "Musau v Shiv Dhruv Manufacturers Limited (Cause E519 of 2024) [2025] KEELRC 2182 (KLR)", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2182/eng@2025-07-24

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