Musau v Adrian Kenya Limited (Cause E167 of 2024) [2025] KEELRC 3693 (KLR)
The bottom line
#A Kenyan court ordered an employer to pay a former executive Kshs.2,423,900 under a signed mutual separation agreement, plus interest and costs.
What this practically means
#Executive summary
#Key legal issues
#Effect of respondent's failure to call evidence
Unrebutted claimant's evidence stands, but the claimant still bears the burden of proof on a balance of probabilities, which the Claimant discharged
The court relied on Janet Kaphiphe Ouma v Marie Stopes and Interchemie E.A. Limited v Nakuru Veterinary Centre, noting that unrebutted pleadings remain mere allegations. The Claimant produced a signed employment contract and the Mutual Separation Agreement, proving the employment relationship and the agreed separation package of Kshs.2,423,900/= on a balance of probabilities.
Entitlement to the separation package under the Mutual Separation Agreement
The Claimant proved entitlement to Kshs.2,423,900/= under the Agreement, being the net sum after contractual deductions
The Mutual Separation Agreement dated 22nd December 2023, effective 7th December 2023, obliged the Employer to pay a separation package of KES2,423,900/= in four equal instalments per Schedule 1, being net amounts for unpaid salaries, December days worked, leave and notice, less amounts already paid. No payment was made despite clearance.
Statutory deductions on the awarded sum
Section 49(2) Employment Act deductions were not applied since deductions were already contractually accounted for
The awarded sum was net of amounts payable under the Mutual Separation Agreement, with statutory deductions already shown as taken into account by the parties in arriving at the net separation package, so further deductions were unnecessary.
Damages for unlawful retention of dues
Claim declined because the retention was brief and no damage was proved
The suit was filed weeks after the last instalment fell due; retention of the first three instalments was not inordinate and no damage was demonstrated. The cause of action arose on default of the first instalment.
Legal principles established
#- A party who does not adduce evidence leaves the opposing party's evidence uncontroverted, but the claimant must still prove the claim on a balance of probabilities
Court orders
#- 1.Judgment entered for the Claimant against the Respondent for Kshs.2,423,900/= with interest at court rates from the date of judgment
- 2.Refusal of the claim for damages for unlawful retention of lawful dues
- 3.No statutory deductions applied to the awarded sum pursuant to Section 49(2) of the Employment Act
- 4.The Claimant awarded costs of the suit plus interest at court rates, interest on costs calculated from the date of taxation
- Jurisdiction invoked
- Original employment and labour relations jurisdiction (Employment and Labour Relations Court)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Musau v Adrian Kenya Limited (Cause E167 of 2024) [2025] KEELRC 3693 (KLR)", Case Analysis (2025). Cause No E167 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/3693/eng@2025-12-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.