Musoga v Bota Design Build Limited (Employment and Labour Relations Cause E716 of 2022) [2025] KEELRC 1357 (KLR)
The bottom line
#A Kenyan court ruled an employee was unfairly fired for poor performance because the employer skipped notice and a disciplinary hearing, awarding eight months' salary.
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 Claimant's termination from employment was for a lawful and valid cause
- 2.Whether due process was followed in terminating the Claimant's employment
- 3.Whether the Claimant is entitled to the reliefs sought
Key legal issues
#Procedural fairness in termination for poor performance
Termination was procedurally unfair as the Claimant was not issued notice, a show cause letter or subjected to any disciplinary hearing as required by section 41 of the Employment Act
Section 41 requires an employer to explain reasons for contemplated termination and to hear the employee's representations before terminating for poor performance. RW1 admitted no show cause or warning letter was issued and no disciplinary hearing was held. The court therefore found a breach of section 41 and could not sustain the termination, since procedural non-compliance also meant the employer could not demonstrate valid reasons.
Substantive justification - whether the reason for termination was valid and fair
The Respondent failed to prove a valid and fair reason for termination as required by section 45(2); the allegation of a second job was not the reason for termination
The termination letter cited poor performance, but the employer admitted no disciplinary process was undertaken to establish sloppiness. The LinkedIn profile suggesting a second job with Design Vitality was disputed - the Claimant said it was her own start-up - and in any event was not the ground for termination, so it could not be raised retrospectively to justify the dismissal.
Legal principles established
#- An employer terminating for poor performance must comply with section 41 of the Employment Act - explain the reasons and hear the employee's representations
- Failure to issue notice or subject the employee to a disciplinary hearing renders termination unfair under section 45(2)
Court orders
#- 1.That she be issued with a certificate of service
- 2.The Respondent to pay the Claimant an equivalent of 8 months' salary for unlawful termination = 8x98,747 = 789,976 less statutory deductions
- 3.The Respondent to pay costs of this suit and interest at court rates with effect from the date of this Judgment
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment disputes (Employment Act, sections 41 and 45 applied)
Relief refused
#12 months' salary compensation as sought
Court awarded only 8 months' salary based on length of service (8 months)
Costs
The Respondent to pay costs of this suit and interest at court rates with effect from the date of this Judgment
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.
The Respondents having not determined that the Claimant performed her duties in a sloppy way and having not taken her through any disciplinary process, I return a verdict that the termination of the Claimant was unfair and unjustified.
The Respondent however admitted that they did not issue the Claimant with any notice nor subject her to any disciplinary hearing. The Respondent in efiect breached Section 41 of Employment Act and could therefore not determine whether there were valid reasons to warrant termination of the Claimant.
That she be issued with a certificate of service.
The Respondent to pay the Claimant an equivalent of 8 months’ salary for unlawful termination = 8x98,747 =789,976 less statutory deductions.
The Respondent to pay costs of this suit and interest at court rates with efiect from the date of this Judgment.
Issues in the judgment
#Inconsistent termination dates in the judgment - the claim and cross-examination refer to termination on 10th March 2021 while the termination letter is dated 12th March 2021
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Musoga v Bota Design Build Limited (Employment and Labour Relations Cause E716 of 2022) [2025] KEELRC 1357 (KLR)", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1357/eng@2025-05-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.