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ELRCPartially AllowedNot stated in the judgment (Claim filed 17/5/2018; Criminal Case No. 3000 of 2012 referenced)· [2025] KEELRC 2580 (KLR)

Mburu v Tusker Mattresses Limited (Employment and Labour Relations Cause 735 of 2018) [2025] KEELRC 2580 (KLR)

Employment and Labour Relations Court
25 September 2025
3,096 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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A Kenyan court awarded an employee over Kshs. 8 million because his employer suspended him indefinitely and stopped paying him without ever firing him properly.

What this practically means

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Executive summary

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The Claimant, employed as a Chief Cashier on a monthly salary of Kshs. 104,972.00, was suspended for two weeks on 9/10/2012 following a robbery at the Respondent's Tusky's Digo Branch, on suspicion of collaborating with the robbers. He was arrested and charged with conspiracy to commit a felony and stealing by servant, and acquitted under section 215 of the Criminal Procedure Code on 11/12/2017. He was never recalled from suspension, was never subjected to disciplinary proceedings, and his salary and benefits were withheld from October 2012. He sought quashing of the suspension, reinstatement, salary arrears of Kshs. 7,033,124.00, Kshs. 700,000.00 defence costs, and general damages for malicious prosecution. A preliminary objection on limitation was dismissed in a ruling by Onesmus N. Makau on 16/11/2018. The Respondent filed a statement of response asserting summary dismissal but repeatedly failed to attend hearings, and the claim proceeded to formal proof. The court found the uncontroverted evidence proved indefinite suspension and withholding of salary without disciplinary process or termination letter, amounting to unlawful and unfair constructive dismissal crystallizing upon the acquittal. Reinstatement was refused as it was barred beyond three years and unsuitable. Salary arrears of Kshs. 6,448,000.00 for 62 months, twelve months' compensation of Kshs. 1,248,000.00, and special damages of Kshs. 700,000.00 were awarded, totaling Kshs. 8,396,000.00, with interest and costs. The malicious prosecution claim was dismissed for failure to enjoin the Director of Public Prosecutions.

Key legal issues

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01

Whether the indefinite suspension and non-payment of salary constituted constructive dismissal

Holding

The indefinite suspension and withholding of salary without disciplinary proceedings or a termination letter amounted to unlawful and unfair constructive dismissal

Reasoning

The suspension letter allowed only two weeks, but the Claimant was never recalled and was told to await the outcome of the criminal case. No disciplinary hearing was conducted and no letter of termination issued. The Claimant was entitled to await the criminal case's conclusion; the dismissal crystallized upon his acquittal when the Respondent refused to reinstate him or pay the withheld salary. The evidence was uncontroverted as the Respondent failed to appear at formal proof.

p. 6
02

Whether the Claimant was entitled to salary for the suspension period

Holding

Yes - full salary for the entire suspension period was awarded

Reasoning

Since no letter of termination was produced and the Claimant's uncontroverted evidence was that he was told to await the criminal trial's outcome, he remained constructively an employee and was entitled to his full salary from 9th October 2012 to the acquittal on 11th December 2017, computed at Kshs. 6,448,000.00.

p. 6
03

Whether malicious prosecution was made out

Holding

No - claim dismissed for failure to enjoin the DPP

Reasoning

Malicious prosecution requires the Director of Public Prosecutions to be enjoined so the office can defend itself, and requires demonstration that police and DPP failed to conduct reasonable investigations before preferring charges. Suing the employer alone was a fatal omission, so that head of claim failed despite the acquittal.

p. 6
04

Whether special damages of Kshs. 700,000.00 for defence of the criminal case were proved

Holding

Yes - awarded as proved special damages

Reasoning

The Claimant produced receipts of fees paid to his defence Advocate Oduor Okuma and Co. Advocates totaling Kshs. 700,000.00, as well as transport tickets. The Respondent did not rebut this evidence, so the special damages were proved to the required standard and awarded.

p. 5

Legal principles established

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  • Indefinite suspension without pay, without disciplinary proceedings and without a formal letter of termination, amounts to unlawful and unfair constructive dismissal which crystallizes upon the employee's acquittal and the employer's refusal to reinstate or pay
  • A claim for malicious prosecution must enjoin the Director of Public Prosecutions as a party
  • Reinstatement under section 49 of the Employment Act is only available within 3 years of termination

Court orders

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  1. 1.The Respondent is ordered to pay the Claimant all the unpaid salary from the date of suspension to the date of acquittal (9th October 2012 to 11th December 2017) in the sum of Kshs. 6,448,000.00
  2. 2.Compensation for unlawful constructive dismissal equivalent to 12 months salary in the sum of Kshs. 1,248,000.00
  3. 3.Special damages being proved expenses to defend Criminal Case No. 3000 of 2012 in the sum of Kshs. 700,000.00 (total award Kshs. 8,396,000.00)
  4. 4.Interest at court rates from the date of judgment till payment in full
  5. 5.Costs of the suit to the Claimant

Authorities

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Legislation

  • Employment Act, 2007section 90
  • Employment Act, 2007section 44(4)
  • Employment Act, 2007sections 49(1) and 49(4)
  • Penal Codesections 393 and 281
  • Criminal Procedure Codesection 215
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (employment dispute; preliminary objection raised under section 90 of the Employment Act, 2007)

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, "Mburu v Tusker Mattresses Limited (Employment and Labour Relations Cause 735 of 2018) [2025] KEELRC 2580 (KLR)", Case Analysis (2025). Not stated in the judgment (Claim filed 17/5/2018; Criminal Case No. 3000 of 2012 referenced). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2580/eng@2025-09-25

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