Jairus Ochieng Ojwang v Bridge International Academies Ltd [2019] KEELRC 1892 (KLR)
The bottom line
#A Kenyan court awarded an academy manager Ksh.136,180 because Bridge International Academies fired him for poor performance without first hearing his side.
What this practically means
#Executive summary
#Key legal issues
#Procedural fairness in termination for poor performance
Termination was unfair because the claimant was not given notice or a hearing before termination under section 41(1); the hearing of 2nd November 2017 occurred after termination had taken effect on 30th October 2017
Section 41(1) requires the employer to explain reasons and hear the employee before termination on grounds of misconduct, poor performance or incapacity. The respondent's own pleadings showed the hearing occurred after the termination letter took effect. Procedural steps taken retrogressively cannot sanitise an already-made decision. Termination was therefore unfair under section 45 and compensation due under section 49.
Employer's evidentiary burden on poor performance
The respondent failed to show any performance evaluation policy or measures to assess and address poor performance
Following Jane Samba Mkala v Oltukai Lodge Limited, where poor performance is the reason for termination, the employer bears a high level of proof, including an employment policy or practice measuring good against poor performance. The claimant testified there were no policy guidelines to assess performance, and the respondent called no evidence, leaving the termination unsupported.
Notice pay
Notice pay was lawfully due under section 35 of the Employment Act, 2007
The termination letter itself offered to pay notice pay, which the court found lawfully due under section 35 of the Employment Act, 2007, and awarded at Ksh.12,380.00 based on the last wage paid.
Underpayment claim
Claim for underpayments failed; private school wages are contractually negotiated with no applicable wage guidelines
The respondent asserted that teachers in private schools are not covered by Regulation of Wages or General Orders and the salary is negotiated. The court noted the claimant was a Teacher and Academy Manager, not a caretaker clerk, and his contract provided a consolidated wage, so no underpayment was established.
Legal principles established
#- Compliance with section 41(1) of the Employment Act is mandatory; a post-termination hearing cannot cure a termination effected without prior notice and hearing
- An employer relying on poor performance must prove a performance evaluation policy or practice and measures taken to address poor performance before termination
Court orders
#- 1.Judgment entered for the claimant against the respondent
- 2.Compensation of Ksh.123,800.00 (ten months' gross pay)
- 3.Notice pay of Ksh.12,380.00
- 4.Certificate of Service to be issued
- 5.Costs of the suit to the claimant
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment and labour relations claims (Employment Act, 2007)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Kefa Asiago Obwogo v Seventh Day Adventist Church & 2 others [2020] KEELRC 1653 (KLR)[2020] KEELRC 1653 (KLR)6 Feb 2020
- Kenya Tertiary & Schools Workers Union v Ananda Marga Academy [2019] KEELRC 1062 (KLR)[2019] KEELRC 1062 (KLR)11 Jul 2019
Cite this brief
#Cite this brief
Caselaw, "Jairus Ochieng Ojwang v Bridge International Academies Ltd [2019] KEELRC 1892 (KLR)", Case Analysis (2019). Cause No. 496 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1892/eng@2019-02-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.