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ELRCPartially AllowedCause No 85 of 2014· [2019] KEELRC 2142 (KLR)

Joshua Kabaka v Tandu Alarms Systems Limited [2019] KEELRC 2142 (KLR)

Employment and Labour Relations Court
22 February 2019
MOMaureen Onyango
2,442 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled that firing an employee for poor performance without a hearing or a fair chance to improve is unfair, awarding 10 months' salary.

What this practically means

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Executive summary

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Joshua Kabaka, formerly employed by Tandu Alarm Systems Limited as a security guard and later promoted to Controller, sued claiming wrongful termination and unpaid terminal benefits after his services were terminated effective 24th December 2011 on grounds of underperformance. He sought CCTV assistant salary arrears of Kshs.756,000, unrefunded medical expenses of Kshs.2,110, 12 months' salary as compensation for unfair termination, one month's pay in lieu of notice, and general, aggravated, exemplary and/or special damages. The Respondent admitted the employment relationship and maintained the termination was for just reason (underperformance) and in accordance with Sections 43 and 45 of the Employment Act, relying also on Section 44(3) and 44(4)(c) for summary dismissal. The Respondent did not call any witness. The court framed two issues: whether the termination was valid procedurally and substantively, and whether the claimant was entitled to the reliefs sought. Finding that the claimant was given only 23 days of the 90-day improvement period, no performance improvement plan, no targets, and no hearing, the court held the termination unfair both substantively and procedurally under Section 45(2) and 45(4)(b) of the Employment Act. On remedies, the court dismissed the claims for salary arrears, medical expenses, notice pay and general or exemplary damages for lack of proof or express admission, but awarded 10 months' salary (Kshs.180,000) as compensation for unfair termination, with costs to the claimant and interest at court rates from the date of judgment.

Key legal issues

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01

Whether termination for underperformance was procedurally and substantively fair

Holding

Termination was unfair both substantively and procedurally under Section 45(2) and 45(4)(b) of the Employment Act

Reasoning

The claimant was issued a notice to show cause requiring improvement within 90 days but was not put on a performance improvement plan, was given no targets or assessment criteria, was not afforded a hearing, and was terminated only 23 days into the 90-day period. His prior promotions indicated acceptable performance. The employer therefore failed to prove a valid reason and fair procedure under Sections 41 and 45 of the Employment Act.

p. 4
02

Whether the claimant was entitled to the reliefs sought

Holding

Only compensation for unfair termination awarded; other prayers failed for lack of proof or admission

Reasoning

The claimant admitted receiving Kshs.97,242.69 terminal benefits and signed a clearance certificate acknowledging no further claims. He received one month's notice, did not prove the CCTV salary arrears or medical expenses (special damages), and the circumstances did not support general or exemplary damages. The court awarded 10 months' salary as compensation.

p. 4

Legal principles established

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  • Before termination on grounds of poor performance, an employee must be given a hearing under Section 41 of the Employment Act and a reasonable opportunity to improve
  • A credible performance appraisal process must be evidently participatory

Court orders

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  1. 1.Respondent to pay the Claimant Kshs.180,000 as compensation for unfair termination (10 months' salary)
  2. 2.Respondent shall pay costs of the case
  3. 3.Interest shall accrue at court rates from date of judgment
  4. 4.Other prayers (salary arrears, medical expenses, notice pay, general/aggravated/exemplary/special damages) dismissed

Authorities

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Legislation

  • Employment Act, 2007Section 41
  • Employment Act, 2007Section 42(1)
  • Employment Act, 2007Section 43
  • Employment Act, 2007Section 44(3)
  • Employment Act, 2007Section 44(4)(c)
  • Employment Act, 2007Section 45
  • Employment Act, 2007Section 45(2)
  • Employment Act, 2007Section 45(4)(b)

Cases cited (5)

  • John Ratemo Ondieki Vs Islamic Relief World Wide
    (2014) eKLR
  • Kenya Science Research International Technical and Allied Workers Union (KSRITAWU) Vs Stanley Kinyanjui and Mangnate Ventures Limited
    Industrial Cause No. 273 of 2010
  • Jane Wairimu Machira Vs Mugo Waweru and Associates
    Industrial Cause No. 621 of 2012
  • Industrial Alliance Life Insurance Company Vs Gilbert Cabiakman
    2004 SCC 55
  • CMC Aviation Limited Vs Captain Mohammed Noor
    Civil Appeal No. 199 of 2013 (UR)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (Sections 41, 42(1), 43, 44, 45 invoked)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (4)

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

Cite this brief

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Cite this brief

Caselaw, "Joshua Kabaka v Tandu Alarms Systems Limited [2019] KEELRC 2142 (KLR)", Case Analysis (2019). Cause No 85 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/2142/eng@2019-02-22

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