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ELRCPartially AllowedCause No. 337 of 2019· [2022] KEELRC 408 (KLR)

Caroline Chepkurui Sawe v Altgen Limited [2022] KEELRC 408 (KLR)

Employment and Labour Relations Court
24 March 2022
AMAnna Ngibuini Mwaure
1,795 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled an employee was unfairly fired because her employer called it redundancy but couldn't prove poor performance or give her a hearing.

What this practically means

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Executive summary

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The Claimant, employed by the Respondent in April 2017, was issued a termination letter dated 3rd May 2018 which referred to redundancy or retrenchment, citing poor recruitment outcomes and lack of consultancy revenue. She alleged the termination was unlawful, unfair and discriminatory, contending that business was thriving, that her salary increase from Kshs.165,000/= to Kshs.300,000/= was never implemented, and that a South African national replaced her. The Respondent, which did not attend trial or file submissions, averred in its response that the Claimant struggled in her recruiter role, that the company made a loss of Kshs.1,298,471/= in 2017, and that a termination notice under redundancy was issued as provided in the contract. The court held that the real reason for termination was poor performance, not redundancy, since the position was not abolished and another employee was engaged. Relying on Section 41 of the Employment Act and the cited authorities, the court held that an employer alleging poor performance bears a high burden of proof and must demonstrate performance evaluation measures and afford the employee a hearing. The Respondent failed to prove a valid reason or fair procedure, and the termination was declared unlawful and unfair under Section 45. The court awarded three months' salary as compensation (Kshs.495,000/=), a certificate of service within 30 days, costs, and interest, but declined the remaining contract months, house allowance, underpayment and service pay claims.

Key legal issues

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01

Whether the termination was on account of redundancy or poor performance

Holding

The court found the termination was on the basis of poor performance, not redundancy, since the position was not abolished and another employee was engaged.

Reasoning

The termination letter referred to redundancy or retrenchment, but the court was not informed that the claimant's position had been scrapped off, and the claimant testified that another lady was employed in her place. The letter instead cited poor recruitment and consultancy revenue, supporting a finding of poor performance as the true reason.

p. 2
02

Whether the reason for termination was valid and the procedure fair

Holding

The Respondent failed to prove a valid reason and failed to follow the mandatory procedure under Section 41; the termination was therefore unlawful and unfair under Section 45.

Reasoning

The claimant was merely called by Mr. Sean, told the company could not afford to keep her, and issued a termination letter to leave right away. No performance evaluation measures or hearing were demonstrated. Termination for poor performance requires notifying the employee of the reasons and giving them an opportunity to respond, as required by Section 41 of the Employment Act.

p. 3

Legal principles established

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  • Where termination is on grounds of poor performance, the employer bears a high level of proof and must show the performance evaluation measures and policy in place.
  • An employee must be notified of the reasons for termination on poor performance and given an opportunity to be heard, per Section 41 of the Employment Act.
  • An employer must prove valid and fair reasons for termination under Sections 43 and 45 of the Employment Act.

Court orders

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  1. 1.Award of three months' salary compensation of Kshs.495,000/= under Section 49(1)(e) of the Employment Act
  2. 2.Certificate of service to be issued within 30 days
  3. 3.Costs of the suit awarded to the Claimant
  4. 4.Interest at court rates from the date of judgment until full payment

Authorities

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Legislation

  • Employment ActSection 41
  • Employment ActSection 43
  • Employment ActSection 45
  • Employment ActSection 49(1)(e)
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48

Cases cited (2)

  • National Bank of Kenya vs Samuel Nguru Motonya (2019) eKLR
    (2019) eKLR
  • Pius Machafu Isindu vs Lavington Security Guards Limited (2017) eKLR
    (2017) eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act 2007 (unfair and unlawful termination claim)

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, "Caroline Chepkurui Sawe v Altgen Limited [2022] KEELRC 408 (KLR)", Case Analysis (2022). Cause No. 337 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/408/eng@2022-03-24

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