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ELRCPartially AllowedCause No 737 of 2012· [2013] KEELRC 777 (KLR)

Ronnie Odiwuor Asino v Nyanza Reproductive Health Society [2013] KEELRC 777 (KLR)

Industrial Court of Kenya
24 September 2013
1,757 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled firing someone for poor performance is unfair unless the performance issues were first discussed with the employee.

What this practically means

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Executive summary

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The Claimant, employed by the Respondent from 21st October 2008 and later as District Coordinator for Kisumu/Nyando on a contract running to 31st July 2012, was terminated on 19th January 2012 ostensibly for poor performance. He claimed notice pay, leave pay and allowance, a salary increment, and salary for the unexpired term of his contract, contending he was never given a hearing. The Respondent denied the termination was unlawful and raised a preliminary point that the claim against a society rather than its registered officials was bad in law. The Court held that the requirement to name registered officials was a procedural technicality under Article 159 of the Constitution which could not defeat a competent claim, especially where the Respondent itself had drawn the contract in its own name. Applying Sections 41 and 45 of the Employment Act, 2007 and its earlier decision in Jane Wairimu Machira v Mugo Waweru and Associates, the Court found that even assuming poor performance, the ground of termination was never discussed with the Claimant, rendering the termination unfair. However, most heads of claim failed: notice pay and leave pay had already been paid; the all-staff circular promising an increment was held not to constitute a salary absent a specific figure; leave allowance lacked a basis; and the claim for the unexpired contract term was refused as it would amount to specific performance. The Court awarded the Claimant Kshs. 472,000 being four months' salary as compensation, plus costs.

Key legal issues

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01

Whether a claim against an unregistered society rather than its registered officials is maintainable

Holding

The objection was a procedural technicality that could not defeat a competent claim; the Court read down the requirement and determined the claim on the merits

Reasoning

The employment contract was drawn by the Respondent in its own name as employer, without naming registered officials. The Court held the Respondent could not rely on its own omission to defeat the claim, and that under Article 159 of the Constitution procedural technicality should not override substantive justice.

p. 2
02

Whether termination on the ground of poor performance was fair

Holding

The termination was unfair under Section 45 of the Employment Act, 2007 because the alleged poor performance was never discussed with the Claimant

Reasoning

Under Sections 41 and 45 of the Employment Act, an employer must prove a valid and fair reason and fair procedure. Even assuming poor performance, there was no evidence the termination ground was ever discussed with the Claimant, and the appraisal was disputed and possibly non-participatory, contrary to the Machira precedent.

p. 4
03

Quantum of compensation for unfair termination

Holding

Four months' salary (Kshs. 472,000) awarded as compensation; prayer for salary for the unexpired contract term refused

Reasoning

The Court held that awarding the unexpired contract term would be an order for specific performance, available only in exceptional circumstances not established. It instead exercised discretion to award four months' salary as compensation for the unfair termination.

p. 4

Legal principles established

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  • A performance appraisal that forms the basis of termination for poor performance must be participatory and the poor performance must have been discussed with the employee before termination
  • Procedural technicalities, including the requirement to name registered officials of a society as defendants, should not override an otherwise competent claim under Article 159 of the Constitution
  • A salary must be a specific sum payable to a specific employee; a general promise of increment is not a salary

Court orders

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  1. 1.Award to the Claimant of Kshs. 472,000 being four months' salary as compensation for unfair termination of employment
  2. 2.Respondent to pay the costs of the case

Authorities

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Legislation

  • Employment Act, 2007Section 45(2)
  • Employment Act, 2007Section 41
  • Constitution of Kenya, 2010Article 159

Cases cited (1)

  • Jane Wairimu Machira Vs Mugo Waweru and Associates
    [2012] eKLR
Jurisdiction invoked
Original employment and labour relations jurisdiction of the Industrial Court of Kenya (Employment Act, 2007)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Ronnie Odiwuor Asino v Nyanza Reproductive Health Society [2013] KEELRC 777 (KLR)", Case Analysis (2013). Cause No 737 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/777/eng@2013-09-24

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