Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCPartially AllowedELRC Cause (Mombasa) — Statement of Claim filed 19th June 2017· [2019] KEELRC 905 (KLR)

Kennedy Sila Makenzi v Kwale International Sugar Company Limited [2019] KEELRC 905 (KLR)

Employment and Labour Relations Court
19 September 2019
1,640 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

#

A Kenyan court ruled firing an employee for poor performance without a fresh appraisal, warning, improvement plan, or hearing was unfair, awarding 8 months' salary.

What this practically means

#

Executive summary

#
The Claimant, a Security Officer employed by the Respondent Sugar Company from December 2014 until termination on 3rd May 2017, sued for notice pay, overtime for public holidays, weekdays and weekends, 12 months' compensation for unfair termination, a certificate of service, and a declaration that termination was unfair. The Respondent conceded employment but justified termination on grounds of poor performance following an appraisal, asserting terminal dues and overtime were paid. The Court found the Claimant had been untruthful in denying receipt of Kshs. 88,483 in terminal dues, which the KCB Mombasa Branch Manager confirmed was transferred to the Claimant's Equity Bank account. The Court also found the Claimant had received overtime payments monthly as evidenced by pay slips, and declined both overtime prayers, holding the claims speculative and unsupported by records. Notice pay was refused as it had already been paid within terminal dues. On fairness, the Court found it inexplicable that an employee whose salary had been raised for good performance in September 2016 was declared an underachiever less than a year later, without a fresh appraisal, written warning, Performance Improvement Plan, charges laid in writing, or a hearing. The Respondent failed the standards of fairness required under Sections 41, 43 and 45 of the Employment Act 2007. The Court awarded 8 months' salary, Kshs. 633,979, as compensation for unfair termination, declared the termination unfair, ordered issuance of a certificate of service, and awarded costs to the Claimant. Judgment delivered at Mombasa on 19th September 2019 by James Rika, Judge.

Key legal issues

#
01

Procedural and substantive fairness of termination for poor performance

Holding

Termination was unfair — no fresh appraisal, no written warning, no PIP, and no hearing before termination

Reasoning

The Claimant's salary had been raised for good performance in September 2016, yet he was terminated for unsatisfactory performance in May 2017. The Respondent produced no fresh appraisal, no written warning, and no Performance Improvement Plan stating the goals and timelines the Claimant failed to meet. No letter laying charges and seeking explanation was produced, and no hearing was afforded, contravening Sections 41, 43 and 45 of the Employment Act 2007.

p. 3
02

Entitlement to notice pay

Holding

Claim dismissed; notice was already paid in terminal dues

Reasoning

The Respondent's terminal dues computation included notice at Kshs. 79,245, confirmed in cross-examination. The Claimant's pursuit of notice pay again amounted to double recovery and wasted judicial economy.

p. 2
03

Entitlement to overtime pay

Holding

Overtime claims declined; the Claimant was paid overtime monthly and adduced no records of unpaid excess hours

Reasoning

Pay slips showed overtime payments of Kshs. 31,202, Kshs. 27,240 and Kshs. 49,957 in various months. The Claimant admitted overtime was paid monthly upon submission of overtime forms but did not produce records supporting the pending amounts claimed, nor account for what was already paid. The prayers were speculative and untenable.

p. 2
04

Quantum of compensation for unfair termination

Holding

Eight months' salary awarded at Kshs. 633,979

Reasoning

The Claimant was on an indeterminate contract, confirmed after probation, with a rising salary and upward career trajectory. He did not contribute to the circumstances leading to termination and had served 2 years. He had, however, received terminal benefits including service pay. These factors justified 8 months' gross salary as compensation.

p. 3
05

Credibility of the Claimant on payment of terminal dues

Holding

The Claimant was not truthful in denying receipt of Kshs. 88,483 in terminal dues

Reasoning

The Claimant denied holding a KCB account and contested payment of Kshs. 88,483. The Respondent called the KCB Mombasa Branch Manager, who confirmed electronic transfer of that sum to the Claimant's Equity Bank account on the Respondent's instruction. The Claimant's denial damaged his credibility.

p. 2

Legal principles established

#
  • An employer relying on poor performance must conduct a documented performance appraisal, place the employee on a Performance Improvement Plan with defined goals and timelines, and afford a hearing before termination
  • Termination without notice of charges and an opportunity to be heard fails the standards of fairness under Sections 41, 43 and 45 of the Employment Act 2007

Court orders

#
  1. 1.It is declared that termination was unfair
  2. 2.The Respondent shall pay to the Claimant equivalent of 8 months' salary in compensation for unfair termination at Kshs. 633,979
  3. 3.Certificate of Service to issue
  4. 4.Costs to the Claimant

Authorities

#

Legislation

  • Employment ActSection 41
  • Employment ActSection 43
  • Employment ActSection 45
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes (Employment Act 2007)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Kennedy Sila Makenzi v Kwale International Sugar Company Limited [2019] KEELRC 905 (KLR)", Case Analysis (2019). ELRC Cause (Mombasa) — Statement of Claim filed 19th June 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/905/eng@2019-09-19

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