Suri v Edulink International College Limited (Cause 734 of 2016) [2022] KEELRC 1570 (KLR)
The bottom line
#A Kenyan employer couldn't fire a college principal for poor performance without documented evaluations and a fair improvement process.
What this practically means
#Executive summary
#Key legal issues
#Whether termination of the claimant was for a valid reason following a fair procedure.
The court found that though the respondent may have had a valid reason, it failed to adduce tangible evidence that a fair and reasonable procedure was followed to evaluate the claimant's performance and provide a fair improvement path with timelines and known measures; termination violated sections 41, 43 and 45 of the Employment Act, 2007.
The respondent relied on verbal discussions of performance at meetings of September 28/29 and October 2, 2015 but produced no minutes, no performance evaluation policy, no set targets or criteria known to the claimant, and no documented improvement path. RW.1 admitted there were no documents showing failure of performance and no minutes of the alleged performance meetings. Poor performance as a ground of termination places a high evidential burden on the employer, which was not discharged.
Whether the claimant was a permanent/protected employee after serving probation.
The claimant, having completed the six months' probation period without extension, was a protected employee whose termination had to strictly comply with the law and the written contract.
The contract had a mandatory six months' probation ending in June 2015; the claimant continued serving a further three months. Once probation was completed and not extended, the respondent was bound to honour the three-year contract and could not terminate otherwise than in strict compliance with the Employment Act, 2007 and the contract's provisions.
Whether the claimant was entitled to relocation costs and hotel accommodation promised verbally.
Relocation costs were awarded at USD 900 (mirroring the respondent's payment of USD 900 for the return journey) as credible parole evidence read into the contract; the hotel accommodation claim failed for want of documentary proof.
The claimant testified she was verbally promised travel costs and one month's hotel accommodation; RW.1 offered no credible counter-evidence. The court held relocation costs between countries are reasonable expenses lawfully expected to be met by an employer, and the USD 900 paid for the return journey was extraneous proof the same applied on arrival. However, special damages required proof, and no receipts for the hotel were produced.
What compensation is payable for the unlawful and unfair termination.
The court awarded the equivalent of three months' salary, Kshs 660,000 (220,000 x 3), under section 49(1)(c) and (4) of the Employment Act, 2007.
The claimant worked only nine months of a three-year contract, lost career prospects and suffered psychological trauma, embarrassment and financial loss; she contributed nothing to the loss; and terminal benefits were paid several months late. Guided by the Court of Appeal's caution against unjust enrichment, punishment or sanguine assessment of prospects, the court considered all circumstances and fixed compensation at three months' salary.
Whether the claim for payment in lieu of leave was still outstanding.
The claim was fully settled, having been included in the terminal dues (Kshs 223,997 in lieu of leave days not taken) paid on May 18, 2016.
The respondent computed terminal dues including three days' salary for January 2016, leave pay, and USD 900 for a one-way return ticket; payment was made by cheque on May 18, 2016 together with a certificate of service. The court therefore found no basis to award leave pay afresh.
Legal principles established
#- Where poor performance is the reason for termination, the employer bears a high level of proof and must demonstrate a performance evaluation policy or practice and measures taken to address poor performance before termination.
- An employer who has not followed a fair and reasonable procedure to evaluate performance and provide a fair and reasonable path of improvement cannot justify termination as for a valid reason.
- Relocation costs of an employee being brought from one country to another are reasonable expenses lawfully expected to be met by a prospective employer, and credible parole evidence of such a promise may be read into the contract of employment.
- Damages for unfair termination are not aimed at facilitating unjust enrichment nor meant to punish the employer, and should not be awarded on sanguine assessment of prospects.
- An employee who has completed the set probation period is a protected employee and termination of the contract must strictly comply with the law and the written contract.
Court orders
#- 1.Kshs 660,000 compensation for the unlawful and unfair termination of employment (equivalent of three months' salary).
- 2.USD 900 in respect of travel expenses from United Kingdom to Kenya at the beginning of the contract term in Kenya, payable in Kenya Shillings at the equivalent rate.
- 3.Interest at court rates from date of judgment till payment in full.
- 4.Costs of the suit to the claimant.
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (sections 36, 41, 43, 45, 49) and Article 162(2) of the Constitution (implied by the court's jurisdiction over employment and labour relations); no express provision cited in the judgment.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Adipo v Self Help Africa (Cause E019 of 2024) [2025] KEELRC 1155 (KLR)[2025] KEELRC 1155 (KLR)24 Apr 2025
Cite this brief
#Cite this brief
Caselaw, "Suri v Edulink International College Limited (Cause 734 of 2016) [2022] KEELRC 1570 (KLR)", Case Analysis (2022). Cause No 734 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/1570/eng@2022-07-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.