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ELRCAllowedNot stated in the judgment as provided· [2021] KEELRC 2204 (KLR)

Ruth Nyamokami v Habo Group of Companies [2021] KEELRC 2204 (KLR)

Employment and Labour Relations Court
11 February 2021
1,220 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

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A Kenyan employer who fires an employee for poor performance without proof of warnings, appraisals or improvement chances must pay heavy compensation.

What this practically means

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Executive summary

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The Claimant, employed by the Respondent from April 2004 and rising to the position of Personal Assistant to the Chief Executive Officer on a monthly salary of Kshs. 55,000, sued for damages for unlawful termination of employment and terminal dues following termination on 16th October 2015 on grounds of poor performance. The Respondent denied employing the Claimant and alleged the documents relied upon were forgeries, but at trial called no witness and did not dispute the termination letter or the terminal benefits form, which confirmed an employment period of 11 years and 7 months. The Court framed two issues: whether the termination was unlawful, and whether the remedies sought were payable. Applying Jane Samba Mukala v Oltukai Lodge Limited and Alois Makau Maluvu v Cititrust Kenya Limited, the Court held that an employer alleging poor performance must show the employee was aware of performance standards, that shortcomings were pointed out, and that a reasonable opportunity to improve was given. Apart from the termination letter, no prior notice, benchmark or appraisal was produced, so the poor-performance allegation was rejected as unsubstantiated. The Court found the termination was without valid reason and in violation of due procedure. On remedies, the Respondent's suggestion that terminal dues had been paid was unsupported by documentary evidence; the dues tabulated in the uncontested terminal benefits form were held due and payable. The Court awarded Kshs. 1,373,466 comprising twelve months' salary compensation, one month's notice pay, severance for 11 years, SACCO dues, in-house savings/pension, untaken leave and October 2015 days worked, with interest at court rates from judgment, and ordered the Respondent to bear the costs. Judgment was delivered virtually at Mombasa on 11th February 2021 due to COVID-19 restrictions.

Key legal issues

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01

Whether the termination of the Claimant's employment on account of poor performance was lawful

Holding

The termination was without valid reason and in violation of due procedure; the Respondent led no evidence of prior notice of poor performance, performance benchmarks or appraisals.

Reasoning

Poor performance is a recognized ground for termination but must be proved. Following Jane Samba Mukala v Oltukai Lodge Limited, an employer must show the employee knew the expected performance standards, that shortcomings were pointed out, and that she was given a reasonable opportunity to improve. Apart from the termination letter itself, no prior notice, benchmark or appraisal was laid before the Court, so the allegation was unsubstantiated.

p. 3
02

Whether the Claimant was entitled to the terminal dues tabulated in the terminal benefits form

Holding

The terminal dues (notice, October days, in-house savings, leave, severance and pension) were due and payable; the claim that they had been paid was unsupported.

Reasoning

The Respondent itself listed the final dues in the termination letter and did not contest the terminal benefits form tabulating the amounts. Its late suggestion that the dues had been paid and liability discharged was unsubstantiated; documentary evidence of payment, which would be in the Respondent's custody, was not tendered. The Court therefore found the benefits due and payable and awarded them as claimed.

p. 3
03

The appropriate compensation for unlawful termination

Holding

Twelve months' gross salary (Kshs. 660,000) was awarded as compensation for unlawful termination.

Reasoning

In exercising the discretion to award compensation under section 49 of the Employment Act, the Court considered the Claimant's long service of 11 years and 7 months and the Respondent's unlawful conduct in terminating the employment relationship. A full twelve months' salary was deemed appropriate compensation for the summary and unjustified loss of employment.

p. 3

Legal principles established

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  • An employer alleging poor performance must prove that the employee was made aware of expected performance standards, that shortcomings were pointed out, and that a reasonable opportunity to improve was given.
  • A bare allegation of poor performance in a termination letter, unsupported by benchmarks, appraisals or prior warnings, does not constitute a valid reason for termination.
  • A party alleging that terminal dues were paid bears the burden of producing documentary evidence of payment.

Court orders

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  1. 1.Judgment entered in favour of the Claimant for Kshs. 1,373,466 (12 months' salary compensation Kshs. 660,000; 1 month's salary in lieu of notice Kshs. 55,000; severance pay for 11 years Kshs. 302,500; SACCO dues Kshs. 64,100; in-house savings/pension Kshs. 46,200; leave earned but not taken 118 days Kshs. 216,333; 16 days worked in October 2015 Kshs. 29,333)
  2. 2.The award to attract interest at court rates from the date of judgment until payment in full
  3. 3.The Respondent to bear the costs of the case

Authorities

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Cases cited (2)

  • Jane Samba Mukala v Oltukai Lodge Limited
    [2013] eKLR
  • Alois Makau Maluvu v Cititrust Kenya Limited
    [2018] eKLR
Jurisdiction invoked
Original employment and labour relations jurisdiction of the Employment and Labour Relations Court (claim for unlawful termination and terminal dues)

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, "Ruth Nyamokami v Habo Group of Companies [2021] KEELRC 2204 (KLR)", Case Analysis (2021). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/2204/eng@2021-02-11

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