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ELRCDismissedCause No 656 of 2017· [2022] KEELRC 488 (KLR)

Nugi Kahiga v Access Kenya Group Ltd [2022] KEELRC 488 (KLR)

Employment and Labour Relations Court
11 March 2022
SRStella Rutto
5,117 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The claimant, employed by the respondent from 3rd August 2015 as a Business Development Manager tasked with driving the cloud portfolio, was terminated on 22nd March 2017 after declining to participate in a Performance Enhancement Plan (PEP) instituted following underperformance in cloud sales (45% of Q1 targets). He sought declarations of breach and unfair termination, one month's salary in lieu of notice, accumulated leave pay, compensatory damages of Kshs 4,200,000 and loss of income of Kshs 105,000,000 for the unexpired contract period. The respondent maintained the termination was lawful, alleging poor performance and insubordination in refusing the PEP. The court framed three issues: validity and fairness of the reason for termination, procedural fairness, and entitlement to reliefs. On substance, it found the claimant's objections that he lacked a job description untenable, given his probationary appraisal, self-developed KPIs and the recruitment job advert, and held his refusal to undergo the PEP amounted to insubordination availing the respondent valid grounds for discipline. On procedure, the claimant was notified of the allegations and accorded a disciplinary hearing with a colleague of his choice, satisfying section 41 of the Employment Act. All reliefs were refused; the claim was dismissed in its entirety with no orders as to costs.

Key legal issues

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01

Validity and fairness of the reason for termination

Holding

The respondent had a valid and fair reason - the claimant's underperformance and refusal to undergo the PEP amounted to misconduct justifying disciplinary action

Reasoning

The employer placed the claimant on a PEP after cloud sales fell to 45% of Q1 targets. The claimant refused to sign or participate in the PEP, objecting to the absence of a job description. The court found his KPIs and probation appraisal showed he knew his targets, and his unprocedural refusal to engage with the PEP left the employer little option but disciplinary action.

p. 7
02

Procedural fairness under section 41

Holding

The termination followed fair procedure; the claimant was notified of the allegations and heard in the presence of a colleague

Reasoning

The claimant was notified by letter of 15th March 2017 of the allegations, invited to a disciplinary hearing with date, time and venue, and advised of his right to be accompanied by a work colleague. He attended with a colleague who participated actively and made submissions. This satisfied section 41's notification and hearing requirements.

p. 7
03

Whether the absence of a job description excused non-performance

Holding

No - the claimant's probation appraisal, self-developed KPIs and the job advert showed he knew his roles and targets

Reasoning

The court observed that the claimant had been appraised upon completion of probation with specific objectives, developed his own KPIs in December 2016 which mirrored the appraisal objectives, and had been recruited against a job advert setting out duties. Having served about one and a half years in a managerial role, he could not claim ignorance of his responsibilities.

p. 5

Legal principles established

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  • The onus of proving substantive justification for termination lies with the employer under sections 43 and 45(2) of the Employment Act
  • An employee's refusal to participate in a performance management process without valid basis can avail the employer valid grounds for disciplinary action
  • Compliance with section 41 requires notification of allegations and a hearing in the presence of a colleague or union representative

Court orders

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  1. 1.The claim is dismissed in its entirety
  2. 2.No orders as to costs

Authorities

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Legislation

  • Employment ActSections 43, 45(2)(a) and (b), 45(2)(c), 41
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B
  • Constitution of KenyaArticles 159(2)(d), 48

Cases cited (4)

  • Idris Omar Abdi vs Garissa Water and Sewerage Company Limited
    (20121) eKLR
  • Carolyne L. Musonye vs Panari Hotel Ltd
    [2017] eKLR
  • Kennedy Maina Mirera vs Barclays Bank of Kenya Limited
    [2018] eKLR
  • National Bank of Kenya vs Anthony Njue John
    [2019] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act (first-instance 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 (4)

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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, "Nugi Kahiga v Access Kenya Group Ltd [2022] KEELRC 488 (KLR)", Case Analysis (2022). Cause No 656 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/488/eng@2022-03-11

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