Marilyn Mbuthia v Safaricom Limited [2019] KEELRC 2482 (KLR)
The bottom line
#Kenya's Employment Court awarded a Safaricom employee 12 months' salary after finding her termination unfair because the employer proved no valid reason and skipped fair procedure.
What this practically means
#Executive summary
#Key legal issues
#Whether the mutual separation agreement was valid
The agreement was null and void as the Claimant never signed it and there was no willingness or choice to separate amicably
The Respondent prepared the agreement and handed it to the Claimant on 22nd September 2015, but she refused to sign it because she was not given reasons for termination. The court applied the doctrine of election and held that mutual separation requires choice; absent evidence of willingness to separate amicably, the purported agreement was null and void. Payment of sums under an unsigned agreement could not validate it.
Whether poor performance was a valid reason for termination
Not established; no appraisal, no evaluation policy, no opportunity to improve or be heard
The only material supporting the poor-performance allegation was the Ethics and Compliance Risk Management report. There was no appraisal evidence and no demonstration that the employer had performance measurement systems or had addressed shortcomings with the Claimant. Applying Section 45 and the high burden in poor-performance cases, the court found the reason was not established and could not support termination.
Whether insubordination was proved
The alleged acts fell within the definition of insubordination but were not proved as the relevant communications were not produced
The court accepted the definition of insubordination as a continuing intentional refusal to obey reasonable orders from proper authority, and noted the report linked the Claimant to insubordination. However, the communications on which the report relied were not attached to the court proceedings, so the acts were not proved to the required standard.
Whether inappropriate outbursts and hostility (incompatibility) was a valid ground
Not established; no witnesses called and no hearing held
Though incompatibility is recognised in law as a ground for termination, the employer must show irreparable breakdown of the employment relationship. The Respondent called no witnesses on this ground and never accorded the Claimant a hearing to defend herself against the allegation, so the ground could not sustain the dismissal.
Whether the falling away of the Claimant's position amounted to a lawful redundancy
It could not; the requirements of Section 40 of the Employment Act were not followed
The restructuring claim was mentioned only in passing in the Statement of Response and RW1's evidence, and the major reason for termination was not redundancy. In any event, the mandatory requirements of Section 40 for effecting redundancy were not followed, so the termination could not be justified as a redundancy.
Whether reinstatement should be ordered
Reinstatement is not practicable and was refused
Applying Section 49(4) factors, the court found the Claimant's office had fallen redundant after restructuring and the relationship between the parties had irretrievably broken down as evidenced by their conduct. In light of the case law on practicability and the statutory conditions, reinstatement was not practical and the injunction against recruitment also failed.
What compensation is due for unfair termination
12 months' gross salary (Kshs.9,571,968) plus salary and benefits up to 22nd April 2016 and medical expenses in the intervening period
The court found the manner of termination — eviction by security, withdrawal of benefits, no notice, no hearing, no reasons for seven months — traumatic, and noted the Claimant was still working half-day on sick recovery and had served since 2003 with exemplary performance. Taking these into account under Section 49, the court awarded the maximum 12 months' gross salary, salary and benefits up to the date of the termination letter, and medical expenses incurred in the interim.
Legal principles established
#- A mutual separation agreement requires an element of choice; without it, the agreement is null and void
- Termination for poor performance requires the employer to have an evaluation system, to point out shortcomings, and to give the employee an opportunity to improve or respond
- Employment cannot support damages to date of retirement; terminated employees get only damages for unprocedural or substantively unjustified termination
Court orders
#- 1.Award of medical expenses from 22nd September 2015 to 22nd April 2016, subject to production of proof (Kshs.196,800 awarded subject to proof)
- 2.Damages for unfair termination equivalent to 12 months' gross salary of Kshs.9,571,968
- 3.Respondent to notify the pension scheme of the Claimant's termination for processing of her benefits under the Scheme Rules
- 4.Costs of the suit to the Claimant
- 5.Interest at court rates from date of judgment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (Sections 40, 41, 44, 45, 49 and 35(6) applied)
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.
- Clarice Odhiambo v The Coca-Cola Company & 2 others [2020] KEELRC 21 (KLR)[2020] KEELRC 21 (KLR)10 Dec 2020
- Pauline Wangeci Warui v Safaricom Limited [2020] KEELRC 1497 (KLR)[2020] KEELRC 1497 (KLR)6 Mar 2020followed
Cite this brief
#Cite this brief
Caselaw, "Marilyn Mbuthia v Safaricom Limited [2019] KEELRC 2482 (KLR)", Case Analysis (2019). Petition/Claim filed 19th July 2016 (Memorandum of Claim dated 15th July 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/2482/eng@2019-01-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.