John Wafula Simiyu v Star Publications Limited [2016] KEELRC 1090 (KLR)
The bottom line
#Kenya's Employment Court ruled that performance appraisals cannot replace a proper hearing before firing an employee for poor performance, awarding the worker Kshs 660,000.
What this practically means
#Executive summary
#Key legal issues
#Whether the termination was wrongful, unfair and unlawful
The termination was wrongful, unprocedural, unfair and unlawful because the claimant was never afforded the requisite facilities and personnel to meet his performance targets and was not accorded appropriate disciplinary process.
The court found two decisive facts: the claimant was assigned only two sales executives instead of six, one untrained, and was never issued a show cause letter nor heard before termination. The respondent's own witnesses supported the claimant's case, the HR manager lacked proved authority to terminate, and appraisals do not constitute a hearing under Section 41 of the Employment Act.
Whether the claimant is entitled to the relief sought
Yes, but only in part: declaration, one month's salary in lieu of notice, ten months' salary as compensation, a certificate of service, and costs.
Having found unfair termination, the court exercised its discretion under the Employment Act to award notice pay and ten months' compensation, ordered issuance of a certificate of service within thirty days, and awarded costs against the respondent. Other heads of claim such as leave, house allowance, commission, public holidays and rest days were not granted.
Legal principles established
#- Performance monitoring or appraisal proceedings are not disciplinary proceedings and do not satisfy the procedural requirements of Section 41 of the Employment Act before termination for poor performance.
- Termination for poor performance requires that the employee be afforded the facilities necessary to perform, and an appropriate disciplinary process including an opportunity to be heard.
Court orders
#- 1.A declaration that the termination of the employment of the claimant by the respondent was wrongful, unprocedural, unfair and unlawful
- 2.Payment of one month's salary in lieu of notice of Kshs. 60,000.00
- 3.Payment of ten months' salary as compensation for unlawful termination of employment of Kshs. 600,000.00 (total Kshs. 660,000.00)
- 4.The respondent to issue a certificate of service to the claimant within thirty (30) days
- 5.The costs of the claim to be borne by the respondent
- Jurisdiction invoked
- Employment and labour relations jurisdiction (Employment Act, 2007; Employment and Labour Relations Court Act)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "John Wafula Simiyu v Star Publications Limited [2016] KEELRC 1090 (KLR)", Case Analysis (2016). Cause No. 240 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1090/eng@2016-06-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.