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Court of AppealPartially AllowedCivil Appeal (Nakuru) – appeal from Kericho E & LRC Case No. 240 of 2015· [2023] KECA 23 (KLR)

Star Publications Ltd v Simiyu (Civil Appeal 23 of 2018) [2023] KECA 23 (KLR)

Court of Appeal of Kenya
26 January 2023
FOF. OchiengLAL. AchodeWKW. Korir
7,684 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~31 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal ruled that a performance improvement plan doesn't replace fair hearing rules, but an unchallenged discharge voucher wiped out the employee's award.

What this practically means

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Executive summary

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Star Publications Limited appealed against the decision of D.K. Njagi Marete, J in Kericho E & LRC Case No. 240 of 2015, which found that the summary termination of John Wafula Simiyu's employment for poor performance was wrongful, unprocedural and unfair, and awarded him one month's salary in lieu of notice, ten months' salary as compensation, a certificate of service and costs. The Court of Appeal, sitting as a first appellate court under Rule 31(1)(a) of the Court of Appeal Rules, 2022, framed four issues: the procedure of termination, the validity of the reason, the legality of the awards, and the effect of the discharge voucher. On procedure, the Court held that placement on a performance improvement plan could not substitute the mandatory notice-and-hearing requirements of sections 41 and 45 of the Employment Act; no evidence showed the respondent was given reasons and a hearing after the PIP. On substance, the employer failed to discharge its burden of proving a valid and fair reason, given the single appraisal, understaffing, and lack of a further confrontation with the allegations. However, the Court found that the respondent had signed a discharge voucher without ever challenging its existence or validity in pleadings, testimony or submissions, and applying Thomas De La Rue and Coastal Bottlers held it a valid, binding contract waiving further claims. The awards of notice pay, compensation and a further certificate of service were also found unjustified. The Court allowed the appeal, vacated the trial judgment, dismissed the respondent's claim, and ordered each party to bear its own costs at trial and on appeal. The judgment binds the ELRC on the treatment of unchallenged discharge vouchers and the non-substitutability of PIPs for statutory fair-hearing requirements.

Key legal issues

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01

Procedural fairness in termination for poor performance

Holding

The appellant did not comply with section 41 of the Employment Act; no notice or hearing was demonstrated after the PIP.

Reasoning

Section 41 requires the employer to explain the reasons for termination in a language the employee understands, allow a colleague or representative, and hear representations. The appellant's witnesses never explained the procedure used; no evidence showed the respondent was given notice and a hearing after the PIP failed. Awareness of possible dismissal during the PIP cannot substitute for the statutory process.

p. 8
02

Validity of the reason for termination (poor performance)

Holding

The reason was not sustainable; the employer failed to discharge its burden of proof under sections 43 and 45.

Reasoning

The only appraisal was in 2014, no evidence of annual appraisals, and the respondent had 2 of 6 required staff with no explanation of the impact on performance. After the PIP the respondent was not again confronted with the alleged poor performance or given a chance to defend himself. The employer bore a high level of proof in poor-performance cases.

p. 9
03

Effect of the discharge voucher

Holding

The discharge voucher was valid and binding; the respondent waived further claims, so the trial court's awards fall.

Reasoning

The respondent never questioned the existence or validity of the discharge agreement in pleadings, testimony or submissions, and no vitiating factors (fraud, misrepresentation, incapacity) were shown. Following Thomas De La Rue and Coastal Bottlers, a freely executed discharge voucher constitutes a binding contract fully discharging the employer.

p. 11
04

Discretionary awards under section 49 of the Employment Act

Holding

The trial court's awards of notice pay and compensation were unjustified given the concessions and the discharge voucher.

Reasoning

Section 49 powers are discretionary and must be exercised judicially on what is fair in the circumstances. The trial judge gave no reasons for the ten months' compensation, and the record showed payment of notice salary and prior issuance of a certificate of service. With the discharge voucher upheld, the entire judgment had to be set aside.

p. 13

Legal principles established

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  • A discharge voucher voluntarily executed by an employee, and not challenged in pleadings, testimony or submissions, is a binding contract that discharges the employer from further liability.
  • A court faced with a discharge voucher must assess its import and voluntariness on the evidence of each case; it cannot automatically bar further claims nor be rigidly presumed valid.
  • Placement on a performance improvement plan does not substitute for the statutory notice-and-hearing procedure in sections 41 and 45 of the Employment Act before termination for poor performance.
  • The burden lies on the employer to prove both the validity of the reason for termination and compliance with fair procedure; failure on either renders the termination unfair.

Court orders

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  1. 1.Appeal allowed
  2. 2.Judgment and orders of the trial court vacated
  3. 3.Respondent's claim in Kericho ELRC No. 240 of 2015 dismissed
  4. 4.Each party to meet own costs of the proceedings at trial and on appeal

Authorities

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Legislation

  • Employment Act, 2007sections 8, 19, 28, 35, 36, 41, 42(1), 43, 44, 45, 46, 47(5), 49, 51
  • Labour Institutions Actsection 15(c)
  • Court of Appeal Rules, 2022Rule 31(1)(a)
  • Evidence Actsection 119
  • Constitution of KenyaArticle 41

Cases cited (22)

  • Kenya Commercial Bank Ltd vs Mwa Nzau Mbaluka & another
    [1998] eKLR
  • Paul Odhiambo Onyango & another vs Kalu Works Limited
    [2020] eKLR
  • Abdalla Mohamed Abdalla vs Independent Electoral and Boundaries Commission
    ELRC Cause No. 1685 of 2013
  • Jane Samba Mukala vs Ol Tukai Lodge Limited
    Industrial Cause No. 823 of 2010
  • Nazareno Kariuki vs Feed the Children Kenya
    [2013] eKLR
  • Trinity Prime Investment Limited vs Lion of Kenya Insurance Company Ltd
    [2015] eKLR
  • Southern Engineering Company (SECO) vs David Anzani Ombeba
    [2015] eKLR
  • Fredrick Odhiambo vs Kenya Safari Lodges & Hotels Ltd
    [2015] eKLR
  • Board of Governors, Kenya Baptist Theological College vs Evans Mwana Katana Dyuya
    [2021] eKLR
  • Nicholas Kyula Muasya vs FarmChem Ltd
    [2012] eKLR
  • Angela Wokabi Muoki vs Tribe Hotel Limited
    [2016] eKLR
  • Walter Ogal Anuro vs Teachers Service Commission
    [2013] eKLR
  • Janet Nyandiko vs Kenya Commercial Bank Limited
    [2017] eKLR
  • Anthony Mkala Chitavi vs Malindi Water & Sewerage Company Ltd
    [2013] eKLR
  • Everline Kagendo vs Statpack Industries Limited
    Industrial Cause No. 2081 of 2011
  • Agnes Yahuma Digo vs PJ Petroleum Equipment Limited
    Industrial Cause No. 2049 of 2011
  • Alphonce Machanga Mwachanya vs Operation 680 Limited
    [2013] eKLR
  • Selle vs Associated Motor Boat Company Ltd
    [1968] EA 123
  • Pius Machafu Isindu vs Lavington Security Guards Limited
    [2017] eKLR
  • Thomas De La Rue (K) Ltd vs David Opondo Omutelema
    [2013] eKLR
  • Coastal Bottlers Limited vs Kimathi Mithika
    [2018] eKLR
  • Kenfreight (E.A) Limited vs Benson K Nguti
    [2019] eKLR
On appeal from
Employment and Labour Relations Court
Kericho E & LRC Case No. 240 of 2015
Jurisdiction invoked
First appeal under the Court of Appeal Rules, 2022 (Rule 31(1)(a)); appellate jurisdiction over an ELRC decision

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (6)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Star Publications Ltd v Simiyu (Civil Appeal 23 of 2018) [2023] KECA 23 (KLR)", Case Analysis (2023). Civil Appeal (Nakuru) – appeal from Kericho E & LRC Case No. 240 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/23/eng@2023-01-26

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.