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ELRCPartially AllowedNot stated in the judgment· [2021] KEELRC 694 (KLR)

Isdor Rachuonyo v Brava Food Industries Limited [2021] KEELRC 694 (KLR)

Employment and Labour Relations Court of Kenya
18 October 2021
OKOcharo Kebira
6,383 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~26 min to read original · ~4 min brief

The bottom line

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Kenya's employment court ruled that firing an employee for poor performance without a hearing, evidence, and clear targets is unfair — and ordered compensation.

What this practically means

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Executive summary

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The claimant, an Area Sales Manager employed by the Respondent on 11th July 2016 on a three-month probation and confirmed on 10th October 2016, had his employment terminated with immediate effect on 25th November 2016 on grounds of poor performance. He sued, alleging the termination was unfair, unprocedural and based on camouflaged reasons, and sought unpaid salary, notice pay, 12 months' compensation, damages for lost earning years to age 60, and damages for non-issuance of a certificate of service. The court framed four issues: procedural fairness, substantive fairness, remedies, and costs. On procedure, it held section 41 of the Employment Act is mandatory; the employer issued no notice to show cause, gave no opportunity for representations, and could not document the alleged weekly performance meetings, so payment in lieu of notice did not cure the unfairness. On substance, the employer bore a high burden of proof for poor performance, which it failed to discharge: no performance policy, targets or evaluation records were tendered, the 17% performance figure was unexplained, and the refusal of the claimant's request for six months to improve, followed by termination the day after a single meeting, showed a predetermined mind. The court awarded compensation of two months' gross salary (Kshs. 420,000) under section 49(1)(c), interest, and a certificate of service within 14 days, plus costs. Claims for the November salary balance and notice pay were declined as paid/prorated, and damages for lost earning years and for the certificate were refused for lack of evidential or statutory basis.

Key legal issues

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01

Whether the termination was procedurally fair

Holding

The termination was procedurally unfair; the employer gave no notice to show cause, no opportunity to make representations, and could not document the alleged weekly performance meetings.

Reasoning

The Respondent's witness admitted no notice to show cause was issued and that the claimant was not invited to make representations. Section 41 of the Employment Act is mandatory and requires explanation of reasons and a hearing before termination for poor performance. No correspondence inviting the claimant to respond to contemplated termination existed. Following National Bank of Kenya v Samuel Nguru Mutonya, the employer failed to discharge its burden under section 45(2)(c) of proving a fair procedure.

p. 6
02

Whether the termination was substantively fair

Holding

The termination was not substantively fair; the reason of poor performance was not validly proved.

Reasoning

Where an employer relies on poor performance, more than citing the reason is required: candidness, good faith, justifiability and reasonableness. The Respondent produced no performance policy, no agreed targets, no evaluation records, and the 17% figure was unexplained. Clause 22 of the contract required a chance to remedy poor performance; the Respondent refused the claimant's request for six months, showing a predetermined mind. The unsigned minutes filed late also cast doubt on genuineness.

p. 7
03

Remedies available to the claimant

Holding

Compensation of 2 months' gross salary (Kshs. 420,000) under section 49(1)(c) and a certificate of service under section 51; other heads declined.

Reasoning

In fixing compensation the court considered the camouflaged reason for termination, the absence of equity and fairness, and the short employment duration. The prorated November salary was justified; notice pay was proved; no evidence supported damages for lost earning years or for the certificate of service, which issues unconditionally under section 51.

p. 8

Legal principles established

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  • Payment in lieu of notice does not preclude an unfair termination claim; the unfair dismissal regime displaced the common law right to dismiss without cause on notice.
  • An employer alleging poor performance bears a high level of proof, including a performance evaluation policy or practice, and its absence attracts an adverse inference.
  • Section 41 of the Employment Act is mandatory: before termination for poor performance the employer must explain the reasons and hear the employee's representations.

Court orders

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  1. 1.Judgment entered for the claimant for Kshs. 420,000/=, being 2 months' gross salary as compensation under section 49(1)(c) of the Employment Act, 2007
  2. 2.A certificate of service to issue to the Claimant within 14 days of the judgment
  3. 3.Interest on the compensation award at court rates from the date of filing of the suit until full payment
  4. 4.Costs of the suit to the claimant

Authorities

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Legislation

  • Employment Act, 2007Sections 8, 35(1)(c), 35(4), 36, 41(1), 41(2), 43, 44(2), 45(1), 45(2), 45(2)(c), 45(5), 47(3), 49(1)(c), 51, 51(4)
  • Constitution of Kenya, 2010Provisions on fair hearing and fair labour practices
  • Fair Administrative Actions ActGeneral provisions on fair administrative action

Cases cited (16)

  • Peter Kamau Mwaura and Another v National Bank of Kenya
    (2020) eKLR
  • Jane Samba Mukala v Oltukai Lodge Limited
    [2010] KLR 225
  • National Bank of Kenya v Pipelastic Samkolit [K] Limited & Another
    [2001] eKLR
  • David Gichana Omuya v Mombasa Maize Millers Limited
    (2014) eKLR
  • British Leyland UK Ltd v Swift
    [1971] IRLR
  • Walter Ogal Anuro v Teachers Service Commission
    [2013] eKLR
  • Elizabeth Wakanyi Kibe v Telkom Kenya Ltd
    [2014] eKLR
  • D.K. Marete v Teachers Service Commission
    Cause No. 379 of 2009
  • Abraham Gumba v Kenya Medical Supplies Authority
    [2014] eKLR
  • Naumy Jemutai Kirui v Unilever Tea Kenya Limited
    [2020] eKLR
  • Angela Wakobi v Tribe Hotel Limited
    Cause No. 1712 of 2014 [Nairobi]
  • Lydia Moraa Obara v Tusker Mattresses Limited
    [2021] eKLR
  • Theewaterskloof Municipality v Salga
    [2010] 10 BLLR 1216 (LC)
  • Paul Katuku Muthengi v SMEP Micro Finance Ltd
    [2021] eKLR
  • Wilson v Atomic Energy of Canada Limited
    2016 SCC 29
  • National Bank of Kenya v Samuel Nguru Mutonyi
    [2019] eKLR
Jurisdiction invoked
Original jurisdiction under the Employment Act, 2007 in an unfair termination claim

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (5)

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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, "Isdor Rachuonyo v Brava Food Industries Limited [2021] KEELRC 694 (KLR)", Case Analysis (2021). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/694/eng@2021-10-18

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