Linet Bosibori Moruri v Kisii Bottlers Limited [2018] KEELRC 138 (KLR)
The bottom line
#A Kenyan court awarded a retail manager Kshs.510,000 after finding his dismissal for 'poor performance' had no factual basis, so employers must document performance claims.
What this practically means
#Executive summary
#Key legal issues
#Validity of termination for poor work performance
The allegations of poor performance had no basis; termination was not for a valid reason and violated sections 43 and 45 of the Employment Act
The Claimant, who was retail manager of the Homa Bay Branch, testified that appraisals in October 2016 and January 2017 scored him at 70% and 74% respectively, and produced sales analysis documents showing his region performed better than others. The claim was unopposed, the Respondent having filed no defence, and there was no evidence to rebut the Claimant's credible testimony. The court therefore found the allegations of underperformance baseless and the termination unfair.
Quantum of compensation and terminal dues
Five months' salary as compensation (Kshs.350,000), one month's notice pay (Kshs.70,000) and salary arrears of Kshs.90,000 awarded; overtime and gratuity claims dismissed
In assessing compensation under section 49, the court considered that the Claimant earned Kshs.70,000 per month, had served diligently for four years, received no notice or notice pay, and was unpaid for December 2016, January 2017 and March 2017. The claims for overtime and service gratuity failed for lack of merit. Interest was granted on the compensation from judgment and on the other awards from filing.
Legal principles established
#- Termination without a valid reason violates sections 43 and 45 of the Employment Act and entitles the employee to compensation under section 49(1)(c) and (4)
Court orders
#- 1.Kshs.350,000 being equivalent of 5 months salary in compensation for unlawful and unfair termination
- 2.Kshs.70,000 in lieu of one month notice
- 3.Kshs.90,000 salary arrears
- 4.Total award Kshs.510,000
- 5.Interest on the compensation award at court rates from date of judgment; interest on notice pay and arrears from date of filing suit till payment in full
- 6.Respondent to pay costs of the suit
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment disputes; Employment Act, sections 43, 45 and 49
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Linet Bosibori Moruri v Kisii Bottlers Limited [2018] KEELRC 138 (KLR)", Case Analysis (2018). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/138/eng@2018-12-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.