Mwaniki v Vision Africa Sacco Limited (Cause 279 of 2018) [2022] KEELRC 4128 (KLR)
The bottom line
#Kenya's Employment Court awarded a Sacco CEO 12 months' salary because his employer proved no performance targets and gave him no fair hearing before firing him.
What this practically means
#Executive summary
#Key legal issues
#Procedural fairness - hearing before termination
The Claimant was not accorded a fair hearing as required by section 41 of the Employment Act; the 30th December 2015 board meeting did not amount to a disciplinary hearing and no disciplinary committee was constituted
The Claimant was invited to a general board meeting whose minutes did not indicate a disciplinary hearing. The Respondent's own witness admitted the appeal avenue was not indicated in the HR manual. A meeting discussing performance 'in passing' does not satisfy section 41's mandatory notification and hearing requirements, so the process was procedurally unfair.
Substantive fairness - proof of poor performance
The Respondent failed to prove the alleged dismal performance; no performance appraisals, targets or performance evidence were tabled
RW-1 admitted the Claimant was never subjected to performance appraisal and RW-2 had no documents showing performance. Section 43 places the burden of proving the reason for termination on the employer. Following Kamau Mwaura v NBK and Jane Samba Mukala, an employer alleging poor performance must show a policy or practice for measuring performance, which was absent.
Unfair termination under section 45(2)
The termination was unfair and unjustified, entitling the Claimant to maximum compensation of 12 months' salary
Both substantive and procedural fairness failed: no valid reason was proved and no fair process was followed. Under section 45(2) the termination is unfair where the employer fails to prove a valid and fair reason and fair procedure. The court exercised discretion under section 49 to award the maximum 12 months' salary given the Claimant's career was cut short.
Legal principles established
#- An employer alleging poor performance must demonstrate that performance parameters were set and evidence of how the employee performed against them, before a hearing under section 41 of the Employment Act satisfies fairness
- The burden lies on the employer to prove the reason(s) for termination; failure renders the termination unfair under section 45
Court orders
#- 1.Declaration implied that the Claimant's termination was unfair and unjustified
- 2.Award of maximum compensation of 12 months' salary under section 49 of the Employment Act, being 12 x Kshs. 128,700 = Kshs. 1,544,400 less statutory deductions
- 3.Respondent to pay costs of the suit plus interest at court rates from the date of the judgment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (first-instance unfair termination claim)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mwaniki v Vision Africa Sacco Limited (Cause 279 of 2018) [2022] KEELRC 4128 (KLR)", Case Analysis (2022). ELRC Cause, claim filed 17th December 2018 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/4128/eng@2022-09-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.