Musau v Schneider Electric (Kenya) Limited (Employment and Labour Relations Petition E107 of 2023) [2025] KEELRC 1962 (KLR)
The bottom line
#Kenya's Employment Court ruled Schneider Electric unfairly dismissed an employee, awarding KShs 5 million because the disciplinary process was flawed and pre-determined.
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 petitioner was constructively dismissed or summarily dismissed
- 2.If summarily dismissed, whether the dismissal was proper and justified
- 3.If summarily dismissed, whether the petitioner's rights under the Constitution were infringed upon
- 4.If summarily dismissed, whether the petitioner is entitled to the remedies sought
- 5.Whether the respondents should pay costs of the suit
Key legal issues
#Whether the petitioner was constructively dismissed
The petitioner was not constructively dismissed; he was summarily dismissed and there was no resignation.
The petitioner contended he was sought out and asked to resign, and pointed to a mutual separation agreement drafted by the respondent which was unsigned. The court held that constructive dismissal presupposes resignation by the employee; since no resignation letter existed and the separation was effected by summary dismissal, the constructive dismissal claim failed.
Whether the summary dismissal was proper and justified
The summary dismissal was unfair and unjustified for lack of valid reason and a fair disciplinary process.
The respondent's own disciplinary policy required an investigation before a hearing, yet no investigation report was presented. No witnesses were called to prove allegations of neglect of duty and disruption of the workplace, denying the petitioner an opportunity to cross-examine. The notice to show cause and hearing notice issued together indicated a pre-determined outcome and bad faith, coming hot on the heels of the failed mutual separation negotiations. Under section 45(2) of the Employment Act the dismissal was unfair.
Whether the petitioner's constitutional rights were infringed
The petitioner's rights under Articles 41 and 47 of the Constitution were breached by the flawed disciplinary process.
Having found a flawed process, the court held that the right to fair labour practices under Article 41 was breached, and that Article 47 was infringed because the petitioner was condemned in advance by being issued a hearing notice in the same communication as the show cause letter, which the respondent did not consider worthy of taking into account before scheduling the hearing.
Remedies
Declarations of unfair dismissal and constitutional violation granted, with constitutional damages of Kshs 5 million and costs.
The court granted a declaration of unfair summary dismissal, a declaration of violation of fundamental rights and freedoms, awarded Kshs 5 million in constitutional damages, and awarded costs plus interest at court rates from the date of judgment. Claims of constructive dismissal, exemplary and aggravated damages were not granted.
Legal principles established
#- An employer must before terminating employment for misconduct explain the reasons to the employee, who is entitled to have a representative of his choice present; the employee must be allowed to call witnesses and cross-examine witnesses against him.
- A termination of employment is unfair where the employer fails to prove a valid and fair reason and that a fair procedure was followed, per section 45(2) of the Employment Act.
- Issuing a notice to show cause and a disciplinary hearing notice in the same communication connotes a pre-determined position and bad faith, breaching the right to fair administrative action.
- A mutual separation agreement requires mutual consent; where consent is withdrawn before the agreement takes effect, it does not bind the parties.
Court orders
#- 1.A declaration that the summary dismissal of the petitioner by the respondent was unfair and unjustified
- 2.A declaration that the petitioner's fundamental rights and freedoms have been violated by the respondent
- 3.A declaration that the petitioner is entitled to damages for breach and violation of his constitutional rights, awarded at Kshs 5 million
- 4.The respondent to pay costs of the suit plus interests at court rates with effect from the date of judgment
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Articles 41 and 47 of the Constitution of Kenya 2010 (employment and labour relations jurisdiction of the ELRC)
Relief refused
#Declaration of constructive dismissal
No resignation letter existed; constructive dismissal requires resignation by the employee
Exemplary damages for lost opportunity and aggravated damages
Not granted; only constitutional damages of Kshs 5 million awarded
Claim of discrimination
Petitioner did not discharge his evidential burden of demonstrating discrimination
Costs
The respondents will pay costs of this suit plus interests 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.
It is therefore my finding that the summary dismissal of the petitioner was unfair, unjustified for lack of valid reason and a fair disciplinary process as per the respondents own procedures.
The need to call witnesses and to have the employee cross examine them is clearly spelt out under the law. In the case of the petitioner, no witness was ever called to state the case against him and to be subjected to cross examination.
This connotes a pre- determined position by the respondent to subject him to a disciplinary hearing no matter his explanation on the notice to show cause which also denotes bad faith.
It is however absurd that the respondents were also represented by two counsels. This disciplinary process took a difierent turn which in my view went beyond an internal disciplinary process and so was improperly done.
A declaration that the petitioner is entitled to damages for breach and violation of his constitutional rights which I award at Kshs 5 million.
The respondents will pay costs of this suit plus interests at court rates with efiect from the date of this judgment.
Issues in the judgment
#The judgment records the petitioner's response to the notice to show cause as being on 22/6/2025, which is inconsistent with the chronology of events in 2023.
The judgment refers to an email of 6/5/2023 in which the petitioner withdrew from the MSA, while other passages place the collapse of the MSA at 30/5/2023.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Musau v Schneider Electric (Kenya) Limited (Employment and Labour Relations Petition E107 of 2023) [2025] KEELRC 1962 (KLR)", Case Analysis (2025). Petition dated 26th June 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1962/eng@2025-07-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.