United Millers Limited v Musimbi (Appeal E018 of 2024) [2025] KEELRC 105 (KLR)
The bottom line
#Kenya's Employment Court confirmed you cannot backdate a termination letter—if the job already ended, the dismissal is automatically unfair and you pay damages.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Respondent was retained on a salary-based contract or a commission-based contract
- 2.Whether the Respondent received a salary of Kshs. 80,000/-
- 3.Whether the Respondent was dismissed un-procedurally
- 4.Whether the Respondent is eligible for damages as pleaded in the Claim
- 5.Whether the Amended Claim ought to be struck out for not having been verified by an affidavit
- 6.Whether the Learned Magistrate erred in failing to give the Appellant a fair hearing and failing to consider its evidence
Key legal issues
#Validity of a termination communicated after the effective termination date
The termination was unfair and unlawful because the letter of 7th July 2022 purported to terminate the contract with effect from 30th June 2022, seven days after the fact, contrary to sections 43, 44 and 45 of the Employment Act
The letter notified the Respondent that her contract would not be renewed after 30th June 2022 and that commissions would be paid up to that date. The Court held the Employment Act has no provision for post facto termination; a notice issued seven days after termination cannot satisfy sections 43, 44 and 45, rendering the dismissal ipso facto unfair and unlawful.
Procedural fairness under section 41 of the Employment Act
No hearing or explanation was afforded before termination for alleged poor performance, breaching section 41(1) and rendering the dismissal unfair
Section 41(1) requires the employer to explain the reasons for contemplated termination on grounds of poor performance and to allow the employee a representative. The Court found no demonstration that any hearing took place and no record of procedure followed, placing the termination afoul the law and rendering the dismissal unfair and unlawful.
Burden of proving the contract terms and remuneration
The employer's failure to reduce the contract to writing and keep records did not limit the claim; the consistent sum received was properly used as the multiplicand for dues
The Court noted the Respondent was employed by the Appellant, who was required to keep records; failure to avail the contract did not limit the claim. Evidence showed the Respondent consistently received the sum used as multiplicand in the calculation of her dues, and there was no error in relying on it as her monthly dues.
Whether the Learned Magistrate erred in failing to consider the Appellant's evidence
The Magistrate's findings accorded with the evidence and the law; there was no evidence of partiality, so the finding could not be faulted
The Court re-evaluated the evidence and found the Learned Magistrate decided in the Respondent's favour having regard to the testimony adduced and in tandem with the law. It found no evidence of partiality in the handling of the case and concluded that the conclusions accorded with the evidence and the law, so the appeal lacked merit.
Legal principles established
#- Under the Employment Act there is no provision for termination post facto; a letter terminating a contract after the effective date of termination renders the termination unfair and unlawful
- An employer must explain the reasons for termination to the employee and afford a hearing before terminating for poor performance, per section 41(1) of the Employment Act
- Where the employer fails to avail the contract or keep proper employment records, that failure does not limit the employee's claim
- An appellate court must re-evaluate the evidence and judgment of the inferior court and make its own independent judgment, noting it neither heard nor saw the witnesses testify
Court orders
#- 1.The appeal is dismissed
- 2.Judgment of the Magistrate's Court is affirmed and upheld
- 3.Costs to the Respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Kisumu Chief Magistrate's Court
- Not stated
- Jurisdiction invoked
- Appellate jurisdiction of the Employment and Labour Relations Court over appeals from the magistrates' court in employment disputes (memorandum of appeal; Employment and Labour Relations Court Rules invoked by parties)
Relief refused
#Appellant's prayer that the appeal be allowed and judgment entered in its favour
The appeal lacked merit; the Magistrate's findings accorded with the evidence and the law
Striking out of the Amended Claim for want of a verifying affidavit
The Court did not accept the Appellant's submission that the failure was fatal; the Magistrate's decision was affirmed without striking out
Costs
Appeal dismissed with costs to the Respondent
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.
This clearly demonstrates the appeal lacks merit and Judgment of the Magistrate’s Court is afirmed and upheld. Appeal is accordingly dismissed with costs to the Respondent.
In the Employment Act, there is no provision for termination post facto.
The termination was ipso facto unfair and unlawful.
There was no record of procedure followed in terms of the Employment Act thus rendering the dismissal unfair and unlawful.
The Appellant was required to keep records and the fact they did not avail the contract does not limit the claim by the Respondent.
Issues in the judgment
#The judgment does not state the appeal case number in the record provided; the case number field could not be completed from the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "United Millers Limited v Musimbi (Appeal E018 of 2024) [2025] KEELRC 105 (KLR)", Case Analysis (2025). Memorandum of Appeal dated 23rd May 2024 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/105/eng@2025-01-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.