Wilfred Mutwota v Managing Director,Bakery Solutions Limited & another [2021] KEELRC 692 (KLR)
The bottom line
#Kenya's Employment Court ruled that firing an employee for poor performance without a hearing is unlawful, awarding compensation even when the employer never defended the case.
What this practically means
#Executive summary
#Key legal issues
#Whether the summary dismissal of the Claimant on account of performance was fair and lawful
The dismissal was unfair and unlawful because the Claimant was not accorded a hearing as required by Sections 41, 43 and 45 of the Employment Act
The Respondent did not enter appearance or defend the claim. The dismissal letter showed termination was on account of performance. The Court found no evidence of any hearing or attempt to satisfy Section 41's requirements, rendering the termination substantively and procedurally unfair and unlawful.
What remedies flow from the unfair termination
Compensation equivalent to 3 months' salary and one month's salary in lieu of notice under Section 35, with costs and interest
Having found the dismissal unfair, the Court granted a modicum of relief: three months' salary as compensation and one month's notice pay, holding there was no proof of entitlement to notice beyond the one month under Section 35 of the Employment Act.
Whether the Claimant proved defamation, unpaid leave and overtime claims
Those heads of claim failed for want of evidence
No witness was called to prove injury to character; no proof of unpaid leave was produced; and no evidence of overtime or of any grievance documented with the employer was adduced, making it impossible to ascertain whether overtime was worked or paid.
Legal principles established
#- An employer terminating employment for poor performance bears a high level of proof and must demonstrate a performance evaluation policy and afford the employee a hearing
- Sections 41, 43 and 45 of the Employment Act mandatorily require notification and hearing before termination
- An employee must document grievances such as overtime with the employer before claiming in court
- Pleading injury to reputation without evidence is insufficient to sustain a defamation remedy
Court orders
#- 1.3 months' salary as compensation – Kshs. 195,192/-
- 2.One month's salary as notice – Kshs. 65,304/-
- 3.Costs of the suit based on the sums above
- 4.Interest at court rates on the compensation and notice sums from the date of judgment till payment in full
- Jurisdiction invoked
- Employment and labour relations jurisdiction (Employment Act, Sections 35, 41, 43, 45 and 47(5); Article 41(1) of the Constitution invoked by the Claimant)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Wilfred Mutwota v Managing Director,Bakery Solutions Limited & another [2021] KEELRC 692 (KLR)", Case Analysis (2021). Cause No 650 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/692/eng@2021-10-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.