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ELRCPartially AllowedNot stated in the excerpt provided· [2018] KEELRC 431 (KLR)

Renson Makheti Wanyonyi v Kenya Industrial Estates Limited [2018] KEELRC 431 (KLR)

Employment and Labour Relations Court
14 December 2018
MOMAUREEN ONYANGO
3,008 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court confirmed that firing an employee for poor performance without support and a fair improvement process is unfair, awarding maximum compensation.

What this practically means

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Executive summary

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The Claimant, employed by the Respondent from January 1991 and rising to Regional Manager, Garissa, sued for unfair termination of his employment on 10th April 2012, claiming reinstatement and reliefs totalling over Kshs.60 million, including notice pay, back pay, service pay, future earnings, retirement benefits and allowances. The Respondent defended the termination as lawful, attributing it to persistent poor performance at Garissa, and contended that due process under Section 41 of the Employment Act was followed and terminal dues paid. The court framed two issues: whether the termination was unfair and whether the Claimant was entitled to the orders sought. The court held that poor performance is not gross misconduct and can only justify termination if persistent after an opportunity to improve with support, or if deliberate. It found the Respondent had treated the Claimant as if guilty of misconduct, using the wrong procedure, and had failed to address the real causes of poor performance (uncontested evidence on transport, security, lack of Sharia-compliant products and staff capacity), making the termination unfair under Section 45(4)(b). Reinstatement was refused as the three-year statutory window under Section 12 of the Employment and Labour Relations Court Act had lapsed and no exceptional circumstances were proved. Future earnings and anticipated entitlements were refused as no payments accrue after termination and other dues had been paid. The court awarded maximum compensation of 12 months' gross salary (Kshs.1,330,548), costs of the suit to the Claimant, and interest on the decretal sum at court rates from the date of judgment.

Key legal issues

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01

Whether termination for poor performance was substantively and procedurally fair

Holding

The termination was unfair; the employer treated poor performance as misconduct, used the wrong procedure, and failed to address the real causes of the claimant's poor performance after transfer to Garissa

Reasoning

The court found the claimant's performance was good until transfer to Garissa. His explanations for the branch's poor performance (transport, security, lack of Sharia-compliant products, staff capacity) were uncontested. Poor performance requires an opportunity to improve with support, not a misconduct-style disciplinary process. The employer therefore did not act in accordance with justice and equity under Section 45(4)(b).

p. 5
02

Whether the claimant was entitled to reinstatement

Holding

Reinstatement refused

Reasoning

The termination took effect in 2012; the three-year statutory window for reinstatement under Section 12 of the Employment and Labour Relations Court Act had lapsed and no exceptional circumstances under Section 49(4)(d) were proved.

p. 5
03

What remedies flow from the unfair termination

Holding

Maximum compensation of 12 months' gross salary of Kshs.1,330,548 awarded; future earnings and anticipated entitlements refused

Reasoning

Taking into account the circumstances of termination, over 20 years of service and a substantially clean employment record, the court exercised its discretion under Section 49 to award the maximum 12 months' gross salary. Claims for future earnings and anticipated benefits had no legal basis since no payments accrue after termination and the other entitlements had been paid.

p. 5

Legal principles established

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  • Poor performance is not gross misconduct per se and can only justify termination if persistent and the employee was given an opportunity to improve with necessary support, or the poor performance was deliberate
  • A termination based on poor performance handled as a misconduct disciplinary process under Section 41(2) is the wrong procedure
  • Termination is unfair under Section 45(4)(b) where the employer fails to consider and address the real cause of poor performance

Court orders

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  1. 1.Declaration that the termination of the claimant's employment was unfair
  2. 2.Award of maximum compensation of 12 months gross salary in the sum of Kshs.1,330,548
  3. 3.Respondent to pay the claimant's costs of the suit
  4. 4.Decretal sum to attract interest at court rates from date of judgment

Authorities

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Legislation

  • Employment Act 2007section 41
  • Employment Act 2007section 41(1)
  • Employment Act 2007section 41(2)
  • Employment Act 2007section 43
  • Employment Act 2007section 44(3) and (4)
  • Employment Act 2007section 45(2)(b)(i)
  • Employment Act 2007section 45(4)(b)
  • Employment Act 2007section 35(6)
  • Employment Act 2007section 49
  • Employment Act 2007section 49(4)(d)
  • Employment and Labour Relations Court Actsection 12
  • Employment and Labour Relations Court Actsection 12(3)(vii)

Cases cited (4)

  • Moi Teaching & Referral Hospital vs. Hosea Cheruiyot Maru
    [2017] eKLR
  • Francis N. Gachuri -vs- Energy Regulatory Commission
    [2013] eKLR
  • Justice Kalpana H. Rawal vs. Judicial Service Commission & 3 others
    (2016) eKLR
  • Butler -Vs- Pennsylvania 10 HW402 131 ED 472
Jurisdiction invoked
Employment and Labour Relations Court Act (employment dispute; first-instance claim for unfair termination)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Renson Makheti Wanyonyi v Kenya Industrial Estates Limited [2018] KEELRC 431 (KLR)", Case Analysis (2018). Not stated in the excerpt provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/431/eng@2018-12-14

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