Kimani v Technoserve (Cause 764(N) of 2009) [2022] KEELRC 1273 (KLR)
The bottom line
#A Kenyan court ruled an employer must hold a real hearing before firing someone, even with a valid reason, awarding three months' salary.
What this practically means
#Executive summary
#Key legal issues
#Fairness of termination for refusal to undertake a Performance Improvement Program
The Respondent had a valid reason to terminate for the Claimant's refusal to undergo the PIP, but the termination was procedurally unfair as the Claimant was never given a disciplinary hearing
The termination letter gave refusal to undertake the PIP as the reason. Section 41(1) and (2) of the Employment Act require a disciplinary process and a hearing before termination for gross misconduct or poor performance. The minutes of 1st September 2009 showed a meeting called only to inform the Claimant of a decision already reached and to offer a settlement agreement, not to hear her before the decision. Procedural fairness was therefore breached under Section 45(2).
Claim of underpayment on re-designation to Deputy Director
The claim for salary arrears failed; the re-designation did not alter terms and the salary table relied on did not apply to her position
The Claimant accepted re-designation by email while acknowledging that her terms and conditions remained the same. The salary table (appendix LK8) related to Deputy Country Director positions, not Deputy Director Coffee Initiative. The Respondent explained the project's compensation structure was still being developed. The Claimant signed a contract accepting the Kshs.255,000 salary and did not prove she was underpaid.
Entitlement to salary and benefits for the unexpired period of a fixed-term contract
Not payable; such claims are speculative and would amount to unjust enrichment
The court adopted the settled position that remedies in employment must be proportionate to economic injury and are not meant to enrich employees unjustly. Payments contingent on the future expiry of the contract are speculative and not provided for in contract or law, following Aisha Omar Ramadhan and D.K. Njagi Marete.
Assessment of compensation for unfair termination
Three months' salary (Kshs.765,000) awarded as compensation
The court weighed the valid reason for termination, the Claimant's service of less than a year, the statutory cap of 12 months' gross salary, and the fact the Respondent had offered three months' salary in a mutual separation which she rejected. Three months' salary was therefore appropriate.
Legal principles established
#- Before terminating employment on grounds of gross misconduct or poor performance, the employee must be given a disciplinary hearing at which they are heard before the decision to terminate is reached
- Termination with valid reason but without a hearing is procedurally unfair under Section 45(2) of the Employment Act
- Remedies for unfair termination must be proportionate and are not aimed at unjust enrichment; salary for the remainder of a fixed term contract is not payable
Court orders
#- 1.Award to the Claimant of three months' salary as compensation for unfair termination in the sum of Kshs.255,000 x 3 = Kshs.765,000/-
- 2.No orders as to costs
- 3.Interest on the decretal sum to accrue from date of judgment
- Jurisdiction invoked
- Original jurisdiction under the Employment Act (Sections 41, 45(2)) over a claim for unfair termination of employment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kimani v Technoserve (Cause 764(N) of 2009) [2022] KEELRC 1273 (KLR)", Case Analysis (2022). Employment and Labour Relations Cause (memorandum of claim dated 26th November 2009, filed 2nd December 2009). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/1273/eng@2022-07-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.