Tisar Limited v Musyoka (Appeal E038 of 2022) [2025] KEELRC 1351 (KLR)
The bottom line
#A Kenyan court cut a former employee's award from over Kshs 250,000 to Kshs 75,000, confirming that proof and timing matter in employment claims.
What this practically means
#Executive summary
#Key legal issues
#Effect of the agreement of 17th July 2018 acknowledging payment and waiving future claims
The letter was not a discharge voucher or settlement agreement in the strict sense; it covered only statutory dues and could not bar an unfair termination claim
The court scrutinised the termination letter and found it merely acknowledged payment of statutory dues (leave pay, notice pay, days worked), which are payable regardless of fairness of termination. Following Coastal Bottlers v Kimathi Mithika, the court held that whether a discharge bars further claims depends on its import and voluntariness, and here it could not bar an unfair termination claim. It noted the trial court could have factored in statutory relief paid.
Whether the Respondent's termination was unfair
Yes - the Appellant failed to prove the reason for termination and did not follow the procedure under section 41 of the Employment Act
The burden of proving reasons for termination lies on the employer under section 43. The termination letter vaguely stated reasons were 'well known' to the Respondent, the certificate of service said he left on his own accord, and no Performance Improvement Plan was set. Merely citing poor performance is insufficient; the employer must show the employee knew performance standards, was supported, and given time to improve. No show cause letter or disciplinary hearing occurred, so both substantive and procedural fairness failed.
Whether the reliefs awarded by the trial court were justified
Compensation of Kshs 75,000 (5 months' salary) upheld; house allowance, leave pay, severance pay and underpayments overturned
The Respondent failed to prove employment in 2014 (no payslip produced), shifting the evidential burden to the Appellant whose NSSF records showed employment from November 2015. House allowance and leave pay claims were time-barred under section 90; severance pay failed for want of proof of the 2014-2015 employment. Compensation under section 49(4), considering over 3 years of service and the employer's conduct, was found appropriate at 5 months' salary and not inordinately high.
Legal principles established
#- A payment of statutory dues under a termination letter is not a discharge voucher barring claims for unfair termination
- Termination must satisfy both substantive justification and procedural fairness
- House allowance and leave pay are continuing injuries subject to the 12-month limitation in section 90 of the Employment Act
Court orders
#- 1.Appeal partially succeeds with no orders as to costs
- 2.House allowance award set to NIL
- 3.Severance pay award set to NIL
- 4.Unpaid leave days award set to NIL
- 5.Underpayments in the decree expunged (NIL)
- 6.Compensation for unfair termination maintained at Kshs 75,000/=; total award Kshs 75,000/=
- On appeal from
- Magistrates' Court (trial court)
- Jurisdiction invoked
- Appellate jurisdiction over appeals from the trial court in an employment claim (Employment and Labour Relations Court, Appeals Division)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Tisar Limited v Musyoka (Appeal E038 of 2022) [2025] KEELRC 1351 (KLR)", Case Analysis (2025). Memorandum of Appeal dated 15th March 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1351/eng@2025-05-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.