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ELRCPartially AllowedNot stated in judgment (Memorandum of Claim dated 15th November 2016, filed 6th December 2016)· [2021] KEELRC 1171 (KLR)

Emma Amayo v SBT Kenya Limited [2021] KEELRC 1171 (KLR)

Employment and Labour Relations Court
29 July 2021
1,375 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled that firing an employee for missing sales targets is unfair unless the employer proves a fair evaluation and hearing process.

What this practically means

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Executive summary

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This was a first-instance employment dispute before the Employment and Labour Relations Court at Mombasa. The Claimant, employed as a Sales Manager from June 2015 at a monthly salary of Kshs. 25,000, was summarily dismissed on 19th October 2016 via email on grounds of misuse of working hours and failure to meet sales targets. She claimed one month's salary in lieu of notice, eleven days' outstanding leave, and twelve months' salary as compensation for wrongful and unfair dismissal. The Respondent admitted the employment but justified the termination on poor performance, relying on monthly evaluations, advisory meetings and a warning email of 4th October 2016. The court framed two issues: whether the termination was lawful and fair, and whether the remedies sought were payable. Relying on the Court of Appeal's decision in National Bank of Kenya v Samuel Nguru Mutonya, which adopted Jane Samba Mukala v Ol Tukai Lodge Limited, the court held that employers terminating for poor performance bear a high evidential burden: they must prove an evaluation policy, measures taken to address poor performance, and an opportunity for the employee to be heard. The Respondent's general warning email fell far short of these requirements, and the termination was found unfair. The court awarded three months' salary (Kshs. 75,000) as compensation, considering the Claimant's length of service and the Respondent's unlawful conduct. Claims for notice pay and leave were dismissed because the evidence showed these had been paid at termination. Judgment was entered with interest at court rates from the date of judgment, and costs were awarded to the Claimant.

Key legal issues

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01

Whether the termination of the Claimant's employment was lawful and fair

Holding

The termination was unfair; the warning email of 4th October 2016 did not meet the procedural fairness requirements for poor-performance terminations.

Reasoning

The dismissal was grounded on misuse of working hours leading to failure to meet targets, which amounts to poor performance. The Court of Appeal authority in National Bank of Kenya v Samuel Nguru Mutonya, adopting Jane Samba Mukala v Ol Tukai Lodge Limited, places a high evidential burden on employers: they must show an evaluation policy, measures to address poor performance, and an opportunity for the employee to explain. The Respondent only produced a general warning email addressed to several employees, which fell short of these requirements. No hearing or explanation process was demonstrated. The termination was therefore substantively and procedurally unfair.

p. 3
02

Whether the Claimant is entitled to the remedies sought

Holding

Only compensation of three months' salary was awarded; notice pay and leave claims failed as these had been paid.

Reasoning

Having found unfair termination, the court exercised discretion to award three months' salary rather than the twelve months claimed, factoring in the Claimant's length of service (approximately sixteen months) and the Respondent's unlawful conduct in the process. Evidence showed the Respondent had already paid one month's salary in lieu of notice and accrued leave pay, so those heads of claim were dismissed as without basis. Compensation was fixed at Kshs. 75,000, with interest and costs to the Claimant.

p. 3

Legal principles established

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  • Termination for poor performance requires the employer to prove a performance evaluation policy, measures taken to address poor performance, and procedural fairness including an opportunity for the employee to be heard

Court orders

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  1. 1.Judgment entered in favour of the Claimant in the sum of Kshs. 75,000 being three (3) months' salary in compensation for unfair termination of employment
  2. 2.Interest at court rates from the date of judgment until payment in full
  3. 3.Costs of the case to the Claimant

Authorities

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Legislation

  • Employment Actsection 8

Cases cited (2)

  • National Bank of Kenya v Samuel Nguru Mutonya
    [2019] eKLR
  • Jane Samba Mukala v Ol Tukai Lodge Limited
    Industrial Cause Number 823 of 2010; (2010) LLR 255 (ICK) (September, 2013)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (employment dispute)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Emma Amayo v SBT Kenya Limited [2021] KEELRC 1171 (KLR)", Case Analysis (2021). Not stated in judgment (Memorandum of Claim dated 15th November 2016, filed 6th December 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1171/eng@2021-07-29

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