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Case Brief · caselaw.co.ke
ELRCPartially AllowedNot stated in judgment· [2019] KEELRC 709 (KLR)

Stephen Mutua Wambua v Metal Crowns Limited [2019] KEELRC 709 (KLR)

Employment and Labour Relations Court
27 September 2019
1,288 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employer who fires an employee for poor performance without a documented hearing must pay 12 months' gross salary as compensation.

What this practically means

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Executive summary

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The Claimant, employed by the Respondent in November 2001 as a quality control inspector and earning Kshs.37,975 gross, had his employment terminated on 15th March 2014 on grounds of poor performance. He filed a cause on 23rd July 2015 claiming notice pay, compensation for disturbance, annual leave, settlement of a guaranteed bank loan and interest, Sacco savings, damages for wrongful termination, costs, and revocation of the Respondent director's work permit. The Respondent did not file a response despite leave, and contested the claim only through submissions, asserting the termination was justified under Sections 43 and 45 of the Employment Act and that the Claimant had been given time to improve. The Court framed two issues: whether the employment was unfairly terminated and whether the Claimant was entitled to the orders sought. Applying Section 41(2), the Court found the Respondent adduced no evidence of a fair hearing, an opportunity to improve, or records of poor performance; the Claimant's evidence was unrebutted. Following Alphonce Sulpice Mzenge v Mombasa Air Safari Limited, it held the termination unlawful and unfair. On remedies, the Court distinguished Simon Muguku Gichigi v Taifa Sacco Limited, rejected the disturbance claim as unfounded in law, and dismissed the loan, annual leave and Sacco savings claims as unproved. The work permit claim failed for non-joinder, absence of evidence and lack of jurisdiction. The Court awarded 12 months' gross salary as compensation, considering 15 years' service and the Respondent's evidential failure, and ordered the Respondent to pay the Claimant's costs.

Key legal issues

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01

Whether the termination for poor performance was substantively and procedurally fair

Holding

Termination was unlawful and unfair; the Respondent failed to justify the grounds or prove fair procedure under Sections 41 and 43

Reasoning

Section 41(2) requires an employer terminating for poor performance to hear and consider the employee's representations. The Respondent, though it filed submissions, adduced no evidence of investigations, records of poor performance, or that the Claimant was given room to improve. The Claimant's evidence was therefore unrebutted, and the Respondent failed under Sections 41 and 43.

p. 2
02

Whether the Claimant was entitled to the various monetary and other reliefs claimed

Holding

Only 12 months' salary compensation for wrongful termination awarded; other claims failed for lack of proof or jurisdiction

Reasoning

The Court distinguished the Taifa Sacco case and noted the Claimant did not prove coercion in signing the clearance certificate nor claim all terminal dues. Compensation for disturbance was not founded in law; the bank loan, annual leave and Sacco savings claims were unproved; the work permit revocation claim failed for non-joinder, want of evidence and lack of jurisdiction. Compensation was set at 12 months' gross salary given 15 years' service, the Respondent's failure to adduce evidence, and the unique circumstances.

p. 3

Legal principles established

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  • An employer terminating for poor performance must hear and consider the employee's representations and prove both valid reason and fair procedure

Court orders

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  1. 1.A declaration that the Claimant's employment was unlawfully and unfairly terminated (found as such by the Court)
  2. 2.Compensation for wrongful termination of 12 months' gross salary
  3. 3.The Respondent to pay the Claimant's costs of the suit

Authorities

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Legislation

  • Employment Act, 2007Section 41(2)
  • Employment Act, 2007Section 41
  • Employment Act, 2007Section 43
  • Employment Act, 2007Section 45
  • Employment Act, 2007Section 47(5)
  • ILO Convention 158 of 1982

Cases cited (7)

  • Simon Muguku Gichigi vs. Taifa Sacco Limited
    [2012] eKLR
  • Reuben Mwamboga vs. Bahnhof Bar & Restaurant
    [2013] eKLR
  • Alphonce Sulpice Mzenge vs. Mombasa Air Safari Limited
    [2013] eKLR
  • Jane Wairimu Machira vs. Mugo Waweru and Associates
    [2012] eKLR
  • Anthony Mkala Chitavi vs. Malindi Water & Sewerage Company
    [2013] eKLR
  • Benjamin Nyambati Ondiba vs. Egerton University
    [2014] eKLR
  • United States International University vs. Attorney General
    [2012] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (the judgment does not cite a specific constitutional provision)

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, "Stephen Mutua Wambua v Metal Crowns Limited [2019] KEELRC 709 (KLR)", Case Analysis (2019). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/709/eng@2019-09-27

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