Joseph K. Thuo v Kenol Kobil Limited (Cause 1523 of 2012) (Civ) [2016] KEELRC 1778 (KLR)
The bottom line
#Kenya's Employment Court ordered Kenol Kobil to pay a former finance executive over Kshs. 10 million after finding his dismissal for 'poor performance' was actually retaliation for suing the company.
What this practically means
#Executive summary
#Key legal issues
#The real reason for the Claimant's termination
The termination was pegged on the Claimant's filing of Cause No. 1022 of 2012 against the Respondent, not on genuine poor performance or restructuring
The termination letter dated 10.8.2012 cited poor performance, not restructuring. The Claimant had a consistent record of good performance, awards and promotions. He had been asked to take early retirement, refused, and had sued the Respondent. The Respondent produced no proof of the alleged poor performance. The court inferred the dismissal was retaliatory for asserting employees' rights.
Validity of the reason for termination
The reason given (poor performance) was not valid and was not proved
Under section 43 of the Employment Act, 2007 an employer must prove the reason for termination. The Respondent alleged a review showing dismal departmental performance and losses, but the Claimant's history of awards and excellent appraisals contradicted this, and the Respondent failed to demonstrate the alleged poor performance.
Procedural fairness
No due process under section 41 of the Employment Act was followed
Section 41 requires an employer, before terminating on grounds of misconduct, poor performance or incapacity, to explain the reasons to the employee and hear representations, with a chosen companion present. The Respondent gave the Claimant none of these, so the termination was procedurally unfair and hence unjustified under section 45(1) and (2).
Legal principles established
#- An employer terminating on grounds of poor performance must prove the poor performance and follow the procedure in section 41 of the Employment Act, including explanation and hearing
- A termination communicated as being for poor performance cannot be justified by a different, unproven reason, and the burden lies on the employer under sections 43 and 45 of the Employment Act
Court orders
#- 1.12 months' salary as compensation for unlawful termination: Kshs. 4,513,620/= (12 x 376,135)
- 2.One month's salary in lieu of notice: Kshs. 376,135/=
- 3.Service pay at ½ month salary for each year worked for 29 years: Kshs. 5,453,957.50/=
- 4.Total award of Kshs. 10,343,712.50/=
- 5.Claimant to be issued with a Certificate of Service
- 6.Respondent to pay costs of the suit
- Jurisdiction invoked
- Jurisdiction under the Industrial Court Act (including section 12(3)(vi)) over employment disputes; reliefs anchored on Articles 23(3), 41(1), 47(1) and 27(5) of the Constitution and sections 41, 43, 45 and 49 of the 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.
- Mwangi v Kenol-Kobil Limited (Cause 587 of 2017) [2023] KEELRC 1866 (KLR)[2023] KEELRC 1866 (KLR)3 Jul 2023
Cite this brief
#Cite this brief
Caselaw, "Joseph K. Thuo v Kenol Kobil Limited (Cause 1523 of 2012) (Civ) [2016] KEELRC 1778 (KLR)", Case Analysis (2016). Cause No. 1523 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1778/eng@2016-01-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.