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ELRCPartially AllowedConsolidated suits filed 21.12.2015 (consolidated 21.7.2016)· [2017] KEELRC 1883 (KLR)

Festus Mwashuma Lombo & another v Revital Health Care (EPZ) Ltd [2017] KEELRC 1883 (KLR)

Employment and Labour Relations Court
20 January 2017
OMO.N. Makau
1,377 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled that sacking workers for poor performance without evidence of targets and a fair hearing is unfair termination worth months of salary.

What this practically means

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Executive summary

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Two claimants, Festus M. Lombo and David M. Mokua, brought separate suits on 21 December 2015 (consolidated by consent on 21 July 2016) against their former employer, claiming accrued terminal dues and compensation for unfair termination of their employment as Supervisors on 1 September 2015. The respondent admitted the employment and termination but asserted freedom of contract, having paid salary in lieu of notice, and denied liability for unfair termination. The suit proceeded by consent on pleadings, witness statements, documents and written submissions. The court framed two issues: whether the termination was unfair, and whether the reliefs sought should be granted. Applying sections 43, 45 and 47(5) of the Employment Act, the court held the burden of justifying the termination lay on the employer, who led no evidence of agreed performance targets, support, or appraisals, and thus failed to prove poor performance on a balance of probability. The termination letters cited poor performance, yet no hearing under section 41 was accorded, the letters issuing the day after the claimants' shift. The termination was therefore substantively and procedurally unfair. Under section 49(1), each claimant received one month's salary in lieu of notice and ten months' salary as compensation, computed on the pleaded salaries. Claims for unpaid leave, house allowance and gratuity failed for want of legal or contractual basis, section 35(5) barring gratuity for NSSF members. Refund of unconsented salary deductions was allowed, with a declaration that the deductions were unfair and illegal. Certificates of Service were ordered. Judgment of Kshs.618,698 plus costs and interest was entered for the claimants on 20 January 2017 at Mombasa.

Key legal issues

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01

Whether termination of the claimants' services was unfair

Holding

The termination was unfair because the respondent failed to prove a valid and fair reason (poor performance) and did not follow the mandatory hearing procedure under section 41

Reasoning

The burden under sections 43, 45(2)(a) and (b) and 47(5) of the Employment Act lay on the employer. The respondent only asserted freedom of contract and payment in lieu of notice. No evidence of agreed targets, support or appraisals was tendered, and the claimants were served termination letters the day after their shift without any hearing, breaching section 41.

p. 2
02

Whether the reliefs sought should be granted

Holding

Notice pay and ten months' compensation awarded to each claimant; refund of unconsented salary deductions allowed with a declaration of illegality; unpaid leave, house allowance and gratuity claims dismissed

Reasoning

Under section 49(1) the court awarded one month's notice plus ten months' salary considering long service and the absence of proved misconduct. The tabulations were inconsistent with the August 2015 payslips, so notice pay was not proved. Gratuity was barred by section 35(5) for NSSF members without contractual provision.

p. 3

Legal principles established

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  • Under section 45(2) of the Employment Act, termination is unfair unless the employer proves both a valid and fair reason and a fair procedure
  • To prove poor performance the employer must demonstrate agreed targets, necessary support, periodic appraisals and performance below targets
  • Section 41 of the Employment Act mandatorily requires an explanation and hearing before termination on grounds of misconduct, poor performance or incapacity
  • Parties are bound by their pleadings in assessing awards

Court orders

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  1. 1.Judgment entered in favour of the claimants in the aggregate sum of Kshs.618,698
  2. 2.One month salary in lieu of notice awarded to each claimant
  3. 3.Ten months' salary awarded to each claimant as compensation for unfair termination
  4. 4.Refund of salary deductions made without the claimants' express consent (Kshs.15,000 each as salary arrears)
  5. 5.Declaration that the salary deductions were unfair and illegal
  6. 6.Each claimant to be issued with a Certificate of Service
  7. 7.Costs of the suit to the claimants plus interest
  8. 8.Dismissal of the claims for unpaid leave, house allowance and gratuity

Authorities

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Legislation

  • Employment Actsection 45(2)
  • Employment Actsections 43, 45(2)(a) and (b), 47(5)
  • Employment Actsection 41
  • Employment Actsection 49(1)
  • Employment Actsection 35(5)
  • Employment Actsection 51
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act (first-instance claim for unfair termination and terminal dues)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Festus Mwashuma Lombo & another v Revital Health Care (EPZ) Ltd [2017] KEELRC 1883 (KLR)", Case Analysis (2017). Consolidated suits filed 21.12.2015 (consolidated 21.7.2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2017/1883/eng@2017-01-20

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