Zakaria Auma Samuel Otieno Odero v Kaluworks Limited [2020] KEELRC 671 (KLR)
The bottom line
#A Kenyan court upheld an employee's dismissal for poor performance but ordered his employer to pay Kshs. 148,458 in unpaid leave dues.
What this practically means
#Executive summary
#Key legal issues
#Whether the Claimant's dismissal for poor performance was substantively justified
Yes - the Respondent had a valid reason for dismissal based on documented poor performance and negligence over many years
The court noted a chronology of cautionary and warning letters dating back to 2005, appraisal reports noting the Claimant's skill gaps, and evidence of training and support offered to improve performance. The Claimant did not rebut this evidence and was silent on the circumstances of his termination. Poor performance is a lawful ground under the Employment Act.
Whether the procedural fairness requirements of Section 41 of the Employment Act were satisfied
Yes - the Claimant was notified of the disciplinary meeting, participated fully, and signed the minutes without objection
The court found the Claimant was duly notified of the date, venue and agenda of the disciplinary meeting of 30th October 2015, did not object to any aspect of it, fully participated, and acknowledged the record by appending his signature. Applying the Ochanda decision from the Court of Appeal, the Section 41 requirements were fully met.
Whether the Claimant was entitled to 58 days' leave pay and leave travelling allowance
Yes - the claim for 58 days was unchallenged as the Respondent produced no documents supporting its assertion of 55.5 days
The Respondent admitted the leave claim but reduced the days to 55.5. The court held that as employer, the Respondent was responsible for employment records and, having produced no documents to support its figure, the Claimant's claim for 58 days stood unchallenged. The same reasoning applied to the leave travelling allowance.
Legal principles established
#- The proper procedure once poor performance of an employee is noted is to point out the shortcomings and give the employee an opportunity to improve over a reasonable length of time
- An employee who had prior notice of a disciplinary hearing and participated in it cannot complain of being denied an opportunity to be heard
- The employer, as custodian of employment records, bears the burden of proving its assertion on leave entitlement where it produces no supporting documents
Court orders
#- 1.Judgment entered in favour of the Claimant for leave pay for 58 days of Kshs. 135,258
- 2.Leave travelling allowance of Kshs. 13,200 awarded
- 3.Total award of Kshs. 148,458 with interest at court rates from the date of judgment until payment in full
- 4.Claimant entitled to a certificate of service
- 5.Costs of the case awarded to the Claimant
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (employment dispute; sections 41, 44(4)(c) and 19 invoked)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Zakaria Auma Samuel Otieno Odero v Kaluworks Limited [2020] KEELRC 671 (KLR)", Case Analysis (2020). Employment Cause (number not stated in judgment; Memorandum of Claim dated 10th October 2016, filed 27th October 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/671/eng@2020-05-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.