Kennedy Sila Makenzi v Kwale International Sugar Company Limited [2019] KEELRC 905 (KLR)
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
#Key legal issues
#Procedural and substantive fairness of termination for poor performance
Termination was unfair — no fresh appraisal, no written warning, no PIP, and no hearing before termination
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.
Entitlement to notice pay
Claim dismissed; notice was already paid in terminal dues
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.
Entitlement to overtime pay
Overtime claims declined; the Claimant was paid overtime monthly and adduced no records of unpaid excess hours
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.
Quantum of compensation for unfair termination
Eight months' salary awarded at Kshs. 633,979
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.
Credibility of the Claimant on payment of terminal dues
The Claimant was not truthful in denying receipt of Kshs. 88,483 in terminal dues
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.
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.It is declared that termination was unfair
- 2.The Respondent shall pay to the Claimant equivalent of 8 months' salary in compensation for unfair termination at Kshs. 633,979
- 3.Certificate of Service to issue
- 4.Costs to the Claimant
- 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.