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ELRCPartially AllowedNot stated in the judgment as provided· [2025] KEELRC 2589 (KLR)

Muthoga v Devkan Enterprises (Cause E935 of 2023) [2025] KEELRC 2589 (KLR)

Employment and Labour Relations Court
29 September 2025
3,107 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 employer that fires an employee without written charges and a hearing, and shows up to court with no evidence, will lose and pay heavily.

What this practically means

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Executive summary

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The Claimant, employed by the Respondent as a Sales Manager from 1st July 2017, claimed she was dismissed orally on 22nd October 2023 without notice, hearing or written reasons, allegedly on grounds of witchcraft and sorcery, after extending an approved leave by two days. She sought notice pay, salary arrears, leave pay, 12 months' compensation for unfair dismissal, unremitted Sacco and insurance contributions, and a motor vehicle or refund of Kshs.465,000. The Respondent, which called no evidence, alleged she absconded duty, ignored communications and failed to attend a disciplinary hearing, and raised sub judice based on a related suit at Milimani. The court framed two issues: unfairness of the dismissal and entitlement to remedies. It found the Respondent failed the Section 41 procedural fairness test as no show cause letter or hearing was evidenced, and, the Respondent having led no evidence, failed under Section 43 to prove a valid reason. The dismissal was held both procedurally and substantively unfair. The court awarded one month's notice pay (Kshs.142,948), nine months' compensation (Kshs.1,286,532) reduced for the Claimant's contributory self-extension of leave, unpaid salaries from October 2022 to September 2023 (Kshs.1,530,376), unremitted Sacco savings and GS Life Insurance contributions, a certificate of service within 14 days, and costs. Claims for the 22 days' salary (treated as terminal dues), six years' leave, and the motor vehicle or refund were dismissed.

Key legal issues

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01

Procedural fairness of the dismissal

Holding

The dismissal was unprocedural as the Claimant was not given charges in writing or a hearing.

Reasoning

Section 41 of the Employment Act requires the employer to explain the reasons for termination and hear the employee. The court found no evidence of a show cause letter or hearing; the alleged text message was not produced. Relying on Chitavi, the employer must inform the employee of charges, allow preparation and a hearing, and consider representations before dismissal. The Respondent failed the procedural fairness test.

p. 5
02

Substantive justification for the dismissal

Holding

The Respondent failed to prove a valid and fair reason; the dismissal was substantively unfair.

Reasoning

The Respondent alleged abscondment, but led no evidence. The Claimant testified she extended an approved leave with the employer's knowledge. With no controverting evidence, the employer failed to discharge the Section 43 burden of proving the reason for termination, so the termination is deemed unfair.

p. 6
03

Compensation quantum

Holding

Nine months' salary awarded instead of the 12 months sought.

Reasoning

Compensation under Section 49 is capped at 12 months and guided by 13 factors. The Claimant's own admission that she unilaterally extended her leave without the employer's proof of consent amounted to contributory conduct, justifying a reduction from the maximum to nine months.

p. 7
04

Motor vehicle claim

Holding

Claim for the vehicle or refund of Kshs.465,000 failed for want of a purchase agreement.

Reasoning

Although monthly deductions of Kshs.15,000 were made, the court found no express agreement on purchase of the vehicle and considered the payments related to the vehicle's utility in the course of employment rather than a purchase price. The claim therefore failed.

p. 7

Legal principles established

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  • Under Section 41 of the Employment Act an employer must, before terminating on grounds of misconduct, explain the reasons to the employee and afford the employee an opportunity to be heard with a representative present.
  • Where the employer leads no evidence, it fails to discharge the burden under Section 43 of proving valid reasons for termination, rendering the dismissal unfair.

Court orders

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  1. 1.A declaration that the Claimant's dismissal was wrongful.
  2. 2.An award of one (1) month salary in lieu of notice at Kshs. 142,948/-
  3. 3.An award of Nine (9) months salary as compensation for the unfair termination at Kshs.1,286,532/-
  4. 4.Unpaid salaries from October 2022 to September, 2023 at Kshs.1,530,376/-
  5. 5.Unremitted Stima Sacco savings of Kshs.1500/-
  6. 6.Unremitted GS Life Insurance contributions at Kshs.162,645
  7. 7.That the Claimant be issued with a certificate of service within 14 days of this judgment.
  8. 8.Costs.

Authorities

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Legislation

  • Employment Act, 2007Section 41(1)
  • Employment Act, 2007Section 42(1)
  • Employment Act, 2007Section 43
  • Employment Act, 2007Section 47(5)
  • Employment Act, 2007Section 49(4)

Cases cited (5)

  • Walter Ogal Anuro Vs. Teachers Service Commission {2013} eKLR
    {2013} eKLR
  • Kenfreight (E.A.) Limited v. Benson K. Nguti [2016] eKLR
    [2016] eKLR
  • Anthony Mkala Chitavi v. Malindi Water & Sewerage Company Ltd [2013] eKLR
    [2013] eKLR
  • Kenya Power and Lighting Company Limited vs. Agrey Lukorito Wasike
    Nyeri Civil Appeal No. 79 of 2016
  • Charles Musungu Odana v Kenya Ports Authority [2019] eKLR
    [2019] eKLR
Jurisdiction invoked
Original employment and labour relations jurisdiction under Article 162(2) of the Constitution (court not expressly stated in the extract)

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, "Muthoga v Devkan Enterprises (Cause E935 of 2023) [2025] KEELRC 2589 (KLR)", Case Analysis (2025). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2589/eng@2025-09-29

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