Daniel Mbuthi v Express Automation Limited [2014] KEELRC 1346 (KLR)
The bottom line
#Kenya's Industrial Court ruled that firing an employee for poor performance without explaining the problems and giving them a chance to improve is unfair and must be compensated.
What this practically means
#Executive summary
#Key legal issues
#Whether termination for poor performance without following Section 41 procedure was fair
Termination was unfair for want of due process
The termination letter cited failure to meet company expectations. Section 41 of the Employment Act, 2007 requires the employer to explain the reasons to the employee, allow a representative, and hear explanations. The employer did none of these and did not give the employee an opportunity to improve before terminating for poor performance.
Whether the Claimant was still on probation as the Respondent contended
The Claimant was confirmed in his appointment by the letter signed by Rao and accepted on 16th July 2013
There was no proof of forgery of the Director's signature, the Director was not called to explain the circumstances of signing, and no evidence showed the decision to extend probation was ever communicated to the Claimant. The confirmation letter therefore stood.
What remedies flow from the unfair termination
Two months' salary in compensation, one month's notice pay and prorata leave, totalling Kshs. 48,747
In exercising discretion the Court took into account the Claimant's length of service and employment record, awarding two months' salary in compensation plus notice pay and prorata leave, while rejecting the unpaid salary and remainder-of-contract claims.
Legal principles established
#- Termination for poor performance requires the employer to follow the procedure in Section 41 of the Employment Act, 2007, including explaining reasons to the employee and hearing their explanation
- On poor performance, the employer must point out shortcomings and give the employee a reasonable opportunity to improve (2-3 months)
- Performance is distinct from misconduct and requires a separate handling procedure
- Salary for the remainder of a contract is a matter of specific performance, granted only in exceptional circumstances
Court orders
#- 1.Award of 2 months' salary (Kshs. 32,000) in compensation for unfair termination
- 2.Award of 1 month's salary in lieu of notice (Kshs. 16,000)
- 3.Award of prorata leave of Kshs. 747
- 4.Total award of Kshs. 48,747 to be paid by the Respondent
- 5.Respondent to meet the costs of the case
- 6.Award to attract interest at court rates from the date of the award until payment in full
- Jurisdiction invoked
- Jurisdiction over a dispute of employment and labour relations under the Industrial Court Act / Constitution Article 162(2)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Daniel Mbuthi v Express Automation Limited [2014] KEELRC 1346 (KLR)", Case Analysis (2014). Cause No 1649 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/1346/eng@2014-10-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.