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ELRCPartially AllowedCause No 1551 of 2012· [2015] KEELRC 918 (KLR)

Lilian O. Ochang v Kenol Kobil Limited [2015] KEELRC 918 (KLR)

Employment and Labour Relations Court
17 June 2015
LNLinnet Ndolo
1,870 words in judgment
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The bottom line

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A Kenyan court awarded an employee 12 months' salary because her employer fired her for poor performance without proof or a hearing.

What this practically means

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Executive summary

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The Claimant, a long-serving secretary employed by Kenol Kobil Limited in April 2000, brought this cause after her employment was terminated on 13th August 2012 on grounds of poor performance. She contended that the termination was unjustifiable, citing a performance appraisal three weeks earlier rating her 'very good' and a merit salary increment. The Respondent maintained that her performance was unsatisfactory and denied any link to the impending PUMA Energy takeover. The Court framed three issues: fairness of the termination, alleged violation of constitutional rights, and entitlement to remedies. Holding that an employer alleging poor performance must prove it and follow the procedure in Section 41 of the Employment Act, including a capability hearing, the Court found the Respondent had produced no appraisal record and had given the Claimant no opportunity to respond; the termination was therefore substantively and procedurally unfair. On the constitutional claim, the Court affirmed its jurisdiction under Article 41 to enforce rights in employment relationships, but held that the claim failed because no recognisable particulars of violation were pleaded and remedies lay in statute. The Court awarded 12 months' salary (Kshs.2,003,700) in compensation and one month's salary in lieu of notice (Kshs.166,975), declining reinstatement and dismissing claims for salary until retirement, general damages, severance pay, service charge, loan repayment and an order barring share transfer. Costs were awarded to the Claimant with interest on the award from the date of the award.

Key legal issues

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01

Substantive and procedural fairness of termination on grounds of poor performance

Holding

Termination was substantively and procedurally unfair; the Respondent proved no valid reason and gave no hearing

Reasoning

Poor performance is a valid ground for termination but the employer must prove it. The Respondent produced no performance appraisal record to support its verdict of 'below expectation' and gave the Claimant no opportunity to respond, contrary to Section 41 of the Employment Act which requires a hearing where grounds for termination are explained and the employee allowed to be heard.

p. 4
02

Jurisdiction to enforce Bill of Rights in employment matters

Holding

The Court has jurisdiction over constitutional claims arising from employment, but the claim here failed for lack of particulars and proof

Reasoning

Relying on the USIU decision, the Court affirmed its jurisdiction to enforce fundamental rights within employment relationships. However, it held that constitutional violations must be pleaded with recognisable particulars, and since the Claimant's rights were addressed in contract and statute, no constitutional violation was proved.

p. 4
03

Remedies for unfair termination

Holding

12 months' salary compensation plus one month's salary in lieu of notice awarded; reinstatement and other heads declined

Reasoning

Following the finding of unfair termination, the Court exercised its discretion under the Employment Act to award 12 months' salary in compensation, replacing reinstatement. Claims for salary until retirement, general damages, severance pay, service charge, loan repayment and share-transfer orders were dismissed for want of basis or evidence.

p. 4

Legal principles established

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  • An employer alleging poor performance bears the burden of proving it, and must follow the procedure in Section 41 of the Employment Act, including a capability hearing
  • Not every injury in an employment relationship is a constitutional matter; where rights are fully addressed in contract and statute, the Court should not entertain constitutional claims without recognisable particulars

Court orders

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  1. 1.12 months' salary in compensation for unfair termination of Kshs.2,003,700.00
  2. 2.1 month's salary in lieu of notice of Kshs.166,975.00 (total award Kshs.2,170,675.00)
  3. 3.Costs of the case awarded to the Claimant
  4. 4.Award to attract interest at court rates from the date of the award until payment in full

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 26(1), 27(5), 41(1), 47(1)
  • Employment Act, 2007Section 41
  • Industrial Court Act, 2011Section 12

Cases cited (3)

  • Kenya Science Research International Technical and Allied Workers Union (KSRITAWU) Vs Stanley Kinyanjui and Magnate Ventures Ltd
    Cause No. 273 of 2010
  • Jane Wairimu Machira V Mugo Waweru and Associates
    Cause No. 621 of 2012
  • United States International University (USIU) V Attorney General
    [2012] eKLR
Jurisdiction invoked
Article 41 of the Constitution and Section 12 of the Industrial Court Act, 2011

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (10)

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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, "Lilian O. Ochang v Kenol Kobil Limited [2015] KEELRC 918 (KLR)", Case Analysis (2015). Cause No 1551 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/918/eng@2015-06-17

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