Manyonyi v African Medical and Research Foundation (Civil Appeal 330 of 2019) [2026] KECA 101 (KLR)
The bottom line
#Kenya's Court of Appeal ruled AMREF's firing of an underperforming doctor was unfair because it skipped its own written warning procedure, awarding two 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 respondent had a framework for measuring the appellant's performance, appraised him, and took measures to shore up his performance before concluding he was unwilling or incapable of improvement
- 2.Whether the termination was procedurally fair and in compliance with the contract of service between the parties
- 3.What relief, if any, the appellant is entitled to
Key legal issues
#Whether the termination for poor performance was substantively justified
Yes. Despite the absence of a fresh appraisal immediately before termination, there was evidence of persisting underperformance after the March 2013 verbal warning, and the appellant had been offered reasonable opportunity and support to improve.
The court held that the relevant question was whether there was underperformance immediately prior to termination that did not improve notwithstanding opportunity and support. The March 2013 meeting minutes recorded conceded underperformance, and further instances (25 April and 17 May 2013) showed continuing underperformance after the verbal warning. The October 2012 'C' appraisal could not be described as glorious.
Whether the termination was procedurally fair and compliant with the HR manual
No. The employer failed to follow Clauses 8.3.2 and 8.3.3 of its HR manual: no written warning was issued and the appellant was not interviewed by his supervisor before redeployment and termination, breaching the procedure the employer had signed up to follow.
There was no evidence the 17th May 2013 meeting complied with Clauses 8.3.2 or 8.3.3; no interview by the supervisor and no written warning were issued, and instead the employer moved to redeploy. The respondent's own Human Resource Manager conceded in evidence that the warning under Clause 8.3.2 was not given. This procedural breach rendered an otherwise justified termination unlawful.
Whether the trial court erred in relying on the October 2012 appraisal
No. Although the termination came eight months after the October 2012 appraisal and before the next appraisal was due, the critical question was whether underperformance persisted immediately prior to termination without improvement despite opportunity and support.
The court reframed the appellant's complaint: the lapse of time since the appraisal was not decisive, because a performance review was conducted in the intervening period on 20th March 2013, at which the appellant conceded underperformance and received a verbal warning. The relevant inquiry was the persistence of underperformance and procedural rectitude.
Quantum of compensation for the procedural breach
Damages equivalent to two months' gross salary sufficiently compensate the appellant for the procedural infraction; the maximum under section 49(1) of the Employment Act was refused.
The appellant contributed to his circumstances by failing to improve despite opportunity and support, so the maximum compensation of twelve months was inappropriate. The award was calibrated to the procedural infraction alone, since the substantive reason for termination was valid.
Legal principles established
#- On performance-based termination, the employer should have a framework for measuring performance, appraise the employee, warn of the risk of dismissal if performance does not improve, and allow reasonable opportunity to improve; an employee cannot be guilty of underperforming where he/she lacks support to perform.
- Where an employer breaches the disciplinary/performance-improvement procedure it has signed up to follow in its own HR manual, a substantively justified termination is nonetheless unlawful.
- A meeting at which underperformance is conceded and a verbal warning issued may substantially comply with the verbal-warning stage of the HR manual procedure.
Court orders
#- 1.The judgment of the ELRC of 2nd November 2018 is set aside
- 2.In its place, a finding that the termination of the appellant was unlawful
- 3.Award to the appellant of two (2) months gross salary less any statutory deductions
- 4.Interest on the amount at court rates from the date of the trial court's judgment, being 2nd November 2018
- 5.Each party to bear their own costs both in the appeal and at trial
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Employment and Labour Relations Court
- ELRC Cause No. 53 of 2014 (formerly Industrial Court Cause No. 83 of 2014)
- Jurisdiction invoked
- First appellate jurisdiction over the Employment and Labour Relations Court (Employment Act, 2007 framework; the judgment does not cite a specific appellate provision)
Relief refused
#Damages equivalent to 12 months' gross salary
Two months' gross salary sufficiently compensates for the procedural infraction; the appellant contributed to his circumstances by failing to improve despite opportunity and support
Costs
Parties shall bear their own costs both here and at trial.
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 judgment of the ELRC of 2nd November 2018 is hereby set aside and, in its place, we find that the termination of the appellant was unlawful, for which we award him two (2) months gross salary less any statutory deductions.
Yet in so far as the employer breached the procedure it had signed up to follow, the termination was unlawful. The respondent acted in haste when it abridged the procedure set out in clause 8.3.2.
Of course, an employee cannot be guilty of underperforming where he/she lacks support to perform.
Parties shall bear their own costs both here and at trial.
Issues in the judgment
#The judgment states the meeting inviting the appellant as occurring on '20th March 2012' in one passage while all other passages, including the respondent's case, refer to the performance review meeting of 20th March 2013.
The judgment describes the appellant's contract as commencing on 10th April 2012 in one passage, while the respondent's submissions describe a fixed-term contract from 22nd March 2012 to 21st March 2014 without the court resolving the discrepancy.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Manyonyi v African Medical and Research Foundation (Civil Appeal 330 of 2019) [2026] KECA 101 (KLR)", Case Analysis (2026). Court of Appeal appeal from ELRC Cause No. 53 of 2014 (formerly Industrial Court Cause No. 83 of 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/101/eng@2026-01-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.