Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCPartially AllowedCause No 951 of 2015· [2018] KEELRC 1285 (KLR)

Alois Makau Maluvu v Cititrust Kenya Limited & another [2018] KEELRC 1285 (KLR)

Employment and Labour Relations Court
10 August 2018
MOMAUREEN ONYANGO
2,657 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

#

Kenya's Employment Court ruled a banker's dismissal for poor performance unfair because his employer never warned him failure to improve would end his job.

What this practically means

#

Executive summary

#
The claimant, employed from 5th February 2002 and transferred between related Citibank entities in 2007, was rated 4 (poor) in his 2011 appraisal and placed on a performance improvement programme in 2012. After a disciplinary inquiry held on 30th August 2012, his employment was terminated on 10th September 2012 on grounds of poor performance. He sued for unfair termination, seeking a declaration, notice pay, 12 months' compensation, unpaid leave, exemplary damages, costs and a certificate of service. The court framed two issues: whether the termination was valid procedurally and substantively, and entitlement to remedies. Applying Sections 41, 43, 45(2) and 47(5) of the Employment Act, the court found the claimant admitted the appraisal system, his poor rating, the improvement programme, and participated fully in the disciplinary inquiry, so procedure was followed and a valid reason existed. However, after ten years of consistently high ratings, the claimant was never given a specific time frame to improve nor an express warning that failure to meet targets would end his employment; his supervisor's mid-year comments even noted significant improvement. The claimant was therefore ambushed, and although procedure and reason were satisfied, the termination failed the test of justice and equity. On remedies, notice pay was refused as already paid; the court awarded six months' salary as compensation (Kshs. 2,410,058) and prorated annual leave for eight months (Kshs. 216,287.20), totalling Kshs. 2,626,344.70. Aggravated damages were declined. The claim thus partially succeeded, with costs to the claimant and interest on the decretal sum from the date of judgment.

Key legal issues

#
01

Whether termination for poor performance was substantively and procedurally valid

Holding

There was a valid reason and fair procedure, but the termination was unfair for want of justice and equity because the claimant was never warned that failure to improve would lead to termination.

Reasoning

The claimant admitted the appraisal system, his 2011 poor rating and being placed on a performance improvement programme, and participated fully in the disciplinary inquiry, so procedure and reason were satisfied. However, after 10 years of consistently good ratings, his supervisor's mid-year comments actually noted significant improvement and gave no warning of termination. Without an express warning and time frame, the claimant was ambushed by the disciplinary inquiry, rendering the dismissal unfair under justice and equity.

p. 4
02

Burden of proof in unfair termination complaints

Holding

The employee bears the burden of proving unfair termination while the employer bears the burden of justifying the grounds for termination, per Section 47(5) of the Employment Act.

Reasoning

The court applied Section 41 (procedure), Section 43 (valid reason) and Section 45(2) (unfairness where either limb fails), read with Section 47(5) on burden of proof. Since the claimant admitted the appraisal process and improvement programme, the employer discharged its burden on reason and procedure, leaving only the justice and equity deficiency.

p. 4
03

Whether the claimant was entitled to notice pay and prorated leave

Holding

Notice pay was refused as already paid; prorated annual leave for 2012 was awarded as it was not denied.

Reasoning

The payslip for September 2012 showed the notice pay had been made, so the claimant had already received that benefit and could not recover it again. On leave, the respondents did not deny the entitlement to prorated annual leave for the period worked in 2012, and the court awarded 8 months prorated leave.

p. 5

Legal principles established

#
  • In poor-performance terminations, an employer must warn the employee of a specific time frame to improve and expressly warn that failure to meet targets will result in termination of employment.
  • An employer in a poor-performance dismissal need only prove the employee was aware of applicable performance standards and that support and time to improve were given.
  • A termination may be procedurally fair and supported by a valid reason yet still unfair because it was not done in accordance with justice and equity.

Court orders

#
  1. 1.Compensation of 6 months' salary in the sum of Kshs. 2,410,058
  2. 2.Annual leave for (8) months prorated in the sum of Kshs. 216,287.20
  3. 3.Total award of Kshs. 2,626,344.70
  4. 4.Respondent shall pay claimant's costs for this suit
  5. 5.Decretal sum shall attract interest at court rates from date of judgment

Authorities

#

Legislation

  • Employment ActSection 41
  • Employment ActSection 43
  • Employment ActSection 45(2)
  • Employment ActSection 47(5)

Cases cited (13)

  • FREDRICK OWEGI -V- CIC LIFE ASSURANCE
  • JANE WAIRIMU MUCHIRA -V- MUGO WAWERU & ASSOCIATES
  • JANE SAMBA MUKALA -V- OITUKAI LODGE LIMITED
    Industrial Cause Number 823 of 2010: [2010] LLR 255 (ICK) (September, 2013)
  • NAZARENO KARIUKI -V- FEED THE CHILDREN KENYA
  • REBECCA ANN MAINA & 2 OTHERS -V- JOMO KENYATTA UNIVERSITY OF AGRICULTURE AND TECHNOLOGY
  • ALPHONCE MACHANGA MWANCNYA -V- OPERATION 680 LIMITED
    [2013] eKLR
  • BANKING INSURANCE AND FINANCE UNION (KENYA) -V- CO-OPERATIVE BANK OF KENYA LIMITED
  • CMC AVIATION LIMITED -V- MOHAMMED NOOR
  • KENYA UNION OF COMMERCIAL FOOD AND ALLIED WORKERS -V- MERU NORTH FARMERS SACCO LIMITED
  • REPUBLIC -V- KENYA SCHOOL OF LAW, EX-PARTE THOMAS OTIENO ORIWA
  • GLADYS BOSS SHOLLEI -V- JUDICIAL SERVICE COMMISSION
  • WALTER OGAL ANURO -V- TEACHERS SERVICE COMMISSION
    [2013] eKLR
  • JAMES ONDIMA KABESA -V- TROJAN INTERNATIONAL LIMITED
    [2017] eKLR
Jurisdiction invoked
Original employment and labour relations jurisdiction under the Employment Act, 2007 (Employment and Labour Relations Court)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (10)

#

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

Cite this brief

#

Cite this brief

Caselaw, "Alois Makau Maluvu v Cititrust Kenya Limited & another [2018] KEELRC 1285 (KLR)", Case Analysis (2018). Cause No 951 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1285/eng@2018-08-10

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