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ELRCPartially AllowedCause No. 314 of 2016· [2022] KEELRC 677 (KLR)

Mercy Mwendwa Kaume v Methodist Church in Kenya Registered Trustees [2022] KEELRC 677 (KLR)

Employment and Labour Relations Court
24 February 2022
AMAnna Ngibuini Mwaure
1,500 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled a church employee's dismissal for poor performance was unlawful because the employer had no evidence of performance problems and never gave her a chance to respond.

What this practically means

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Executive summary

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The claimant was employed by the respondent as Personal Assistant to the Presiding Bishop from August 2013 at a monthly salary of Kshs.189,000, and was later assigned acting Finance Manager duties. On 24th September 2014, while on annual leave, she received a termination letter citing poor performance, effective November 2014. She sued for a declaration that the termination was unlawful and for damages. The respondent admitted the employment but blamed her failure in the acting Finance Manager role, relying on British Leyland v Swift. The court framed two issues: whether the termination was unlawful and whether the reliefs were payable. Applying Section 45(2) of the Employment Act and adopting Jane Samba Mukala v Oltukai Lodge Limited, the court held that an employer alleging poor performance bears a high evidentiary burden, requiring performance indicators, evaluations and an opportunity to be heard under Section 41. None was present: there was no job description, no performance evaluation, and the claimant was ambushed with a termination notice while on leave. The termination was therefore unfair and unlawful. On remedies, the court awarded one month's salary in lieu of notice (Kshs.170,000) instead of three, service gratuity of Kshs.637,500 at 25% of basic salary, and two months' salary (Kshs.340,000) as damages for wrongful dismissal, but declined the acting allowance in totality as unproved. The total award was Kshs.1,147,000 plus interest at court rates from judgment until payment and costs to the claimant, less any amounts already paid. Judgment delivered on 24th February 2022 by Anna Ngibuini Mwaure J via video link under COVID-19 directions.

Key legal issues

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01

Was the termination of the Claimant's employment unfair and unlawful

Holding

Yes - the Respondent failed to prove a valid reason and breached fair procedure under Sections 41 and 45(2) of the Employment Act

Reasoning

The Respondent relied on poor performance but produced no job description, performance indicators or evaluations, and gave no orientation for the acting Finance Manager role. The Claimant was served with a termination letter while on leave without being informed of the reason or accorded an opportunity to defend herself. The court held the procedure was flawed and the termination unfair and unlawful.

p. 3
02

Is the Claimant entitled to the reliefs sought

Holding

Partly - notice pay (reduced to one month), service gratuity and two months' damages awarded; acting allowance declined

Reasoning

The court granted one month's salary in lieu of notice rather than the three months claimed, service gratuity as provided in the contract, and two months' salary as damages for wrongful dismissal. The acting allowance was declined in totality as unproved, with no appointment letter.

p. 3

Legal principles established

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  • An employer must prove a valid and fair reason for termination and must follow a fair procedure under Sections 41 and 45(2) of the Employment Act
  • Where poor performance is the reason for termination, the employer bears a high level of proof and must have evaluation measures and give the employee an opportunity to explain

Court orders

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  1. 1.One month's salary in lieu of notice of Kshs.170,000/=
  2. 2.Service gratuity of Kshs.637,500/= at 25% of basic salary
  3. 3.Damages for wrongful dismissal of two months' salary, Kshs.340,000/=
  4. 4.Total award of Kshs.1,147,000/= plus interest and costs
  5. 5.Costs awarded to the Claimant
  6. 6.Interest at court rates from date of judgment until final payment
  7. 7.Any amount already paid to be deducted from the award

Authorities

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Legislation

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

Cases cited (2)

  • BRITISH LEYLAND U.K. LIMITED VS SWIFT
    (1981) IRLR 91
  • JANE SAMBA MUKALA VS OLTUKAI LODGE LIMITED
    (2013) eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes (Employment Act, Sections 41 and 45(2))

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, "Mercy Mwendwa Kaume v Methodist Church in Kenya Registered Trustees [2022] KEELRC 677 (KLR)", Case Analysis (2022). Cause No. 314 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/677/eng@2022-02-24

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