Ronnie Odiwuor Asino v Nyanza Reproductive Health Society [2013] KEELRC 777 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether a claim against an unregistered society rather than its registered officials is maintainable
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
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.
Whether termination on the ground of poor performance was fair
The termination was unfair under Section 45 of the Employment Act, 2007 because the alleged poor performance was never discussed with the Claimant
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.
Quantum of compensation for unfair termination
Four months' salary (Kshs. 472,000) awarded as compensation; prayer for salary for the unexpired contract term refused
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.
Legal principles established
#- 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
#- 1.Award to the Claimant of Kshs. 472,000 being four months' salary as compensation for unfair termination of employment
- 2.Respondent to pay the costs of the case
- Jurisdiction invoked
- Original employment and labour relations jurisdiction of the Industrial Court of Kenya (Employment Act, 2007)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
Cite this brief
#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.