Alvin Otieno v Omya East Africa Limited & another [2022] KEELRC 334 (KLR)

Poor performance was cited in the termination letter. The claimant produced the same appraisal as part of his exhibits and did not question its accuracy, so the court deemed it factual. Bonus payments were based 50% on company performance, so they did not prove individual performance. The employer therefore demonstrated unsatisfactory performance, establishing a valid and fair reason under sections 43 and 45 of the Employment Act.

Section 41 requires an explanation to the employee and an opportunity to make representations before termination for poor performance. The email 'find attached as discussed' was merely a forwarding note, not an explicit notice. No documented meetings, written explanations or disciplinary hearing were proved, and review meetings without minutes could not be established. The process fell below sections 41 and 45(2)(c).

The 2nd respondent paid 100% of the purchase price and reimbursed maintenance and insurance; registration in the claimant's name was explained by the respondents' lack of legal status in Kenya at the time. Registration under the Traffic Act is only prima facie evidence of title, rebuttable on a balance of probabilities. The car loan agreement obligated return upon termination, and no legitimate expectation arose from an internal email suggesting Kshs 666,667.

Having found the vehicle to be the property of the respondents, the court held the Counterclaim justified to that extent and ordered the claimant to surrender it within 7 days. The alternative prayer for repayment of the purchase price of Kshs 5,000,000 was not granted since the vehicle itself was to be returned.