Eunice Mwanyalo v Kiprop Bundotich & 2 others [2015] KEELRC 1427 (KLR)
The bottom line
#A Kenyan court awarded a dismissed employee over US$26,000 because her employer fired her for poor performance without any warning, appraisal, or hearing.
What this practically means
#Executive summary
#Key legal issues
#Procedural fairness in termination for poor performance
Termination did not meet the minimum statutory threshold; there was no appraisal, warning, hearing or investigation
The Respondents did not set targets, appraise performance, counsel the Claimant, investigate or give her a hearing. The Executive Committee meeting was not minuted and the Claimant played no active role. The three Committee Members pressed her to resign and terminated her when she refused, citing unsatisfactory performance though the letter said nothing of the conflict of interest later alleged in evidence.
Validity of the reason for termination under Sections 43 and 45
No fair and valid reason was shown; the reason in evidence (conflict of interest over NAVISTAT) was not in the termination letter
The termination letter cited unsatisfactory performance following a Committee meeting, but at trial the Respondents' witness introduced conflict of interest relating to NAVISTAT and an injunction against the electronic cargo system, which was never in the letter. Kiberenge conceded the variance. The court held there was no fair and valid reason justifying termination.
Remedies and compensation under Section 49
Compensation of 10 months' salary awarded; mitigation by securing alternative employment does not erase the gravity of the unfair termination
The court considered the Claimant's immediate employment with NAVISTAT as mitigation, but held that one month's salary as proposed by the Respondents would be disproportionate to the economic injury inflicted. It awarded the equivalent of 10 months' salary at US$20,000.
Annual leave entitlement
Claimant entitled to 44 days' unutilized leave computed from 2008 to 2010, at US$4,400
The court reviewed the leave forms and found the 2008 absences (a 5-day residential course and 7 days' sick off) were not annual leave. In 2009 she took 10 days of annual leave, leaving a balance of 11 days, and in 2010 she took 5 days, earning 12 days for 10 months worked under a 22-day contract, totaling 44 days.
Legal principles established
#- An employer alleging poor performance must set reasonable performance standards, appraise the employee, offer training and guidance, allow time to improve, and issue warnings before resorting to dismissal under Section 41 of the Employment Act.
- The reason for termination must be one communicated to the employee and proved to exist; evidence at variance with the stated reason cannot justify termination.
- Employees should not be unduly harangued over joinder or mis-joinder of employers, as the multiple legal structures adopted by employers are difficult for employees to unmask.
Court orders
#- 1.Declared that termination of the Claimant's contract of employment was unfair
- 2.Respondents to pay 1 month salary in lieu of notice at US$2,000
- 3.Respondents to pay 10 months' salary in compensation at US$20,000
- 4.Respondents to pay 44 days of unutilized annual leave at US$4,400
- 5.Total sum of US$26,400 to be paid within 30 days of delivery of the Award
- 6.Respondents to release to the Claimant her Certificate of Service forthwith
- 7.No order on the costs and interest
- Jurisdiction invoked
- Section 12 of the Industrial Court Act 2011; Industrial Court (Procedure) Rules 2010, Rule 27(1)(a)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Eunice Mwanyalo v Kiprop Bundotich & 2 others [2015] KEELRC 1427 (KLR)", Case Analysis (2015). Cause Number 179 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/1427/eng@2015-02-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.