Musau v Shiv Dhruv Manufacturers Limited (Cause E519 of 2024) [2025] KEELRC 2182 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether desertion of duty justified summary dismissal
Desertion was not proved because the Respondent adduced no evidence of efforts to reach the Claimant.
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.
Whether the dismissal complied with Section 41 of the Employment Act
The dismissal was wrongful as the Claimant was not given an opportunity to defend himself.
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.
Whether the Respondent complied with the medical recommendation to redeploy the Claimant away from heat
The Respondent's evidence on redeployment was unconvincing and undocumented.
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.
Legal principles established
#- 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
#- 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.Interest at court rates from the date of judgment until payment in full
- 3.Costs of the case awarded to the Claimant
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act (claim for wrongful dismissal and remedies)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.