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ELRCPartially AllowedNot stated in the judgment text provided· [2023] KEELRC 2142 (KLR)

Mbui v Jilag Limited & another (Cause 122 of 2019) [2023] KEELRC 2142 (KLR)

Employment and Labour Relations Court
22 September 2023
AJAbuodha J.N
4,563 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Nairobi court awarded a dismissed manager six months' salary because her employer couldn't prove she actually performed poorly or was insubordinate.

What this practically means

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Executive summary

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The claimant, formerly employed by the 1st Respondent as Operations Manager in charge of the cleaning department from 1st September 2016, sued for unfair termination of her employment on 9th January 2018 following client complaints at the Jubilee Insurance House contract. She pleaded that the site failed due to understaffing and pay disparities between casual and permanent cleaners, and that her disciplinary process was flawed. The respondents asserted she was a poor performer and insubordinate, and that staffing and remuneration decisions were within her discretion. The court reiterated that under sections 43 and 47(5) of the Employment Act the employer bears the burden of proving the reasons for termination, and that reliance on poor performance requires evidence of job descriptions, performance parameters, appraisals, warnings and facilitation of the employee, citing Jane Samba Mukala v Ol Tukai Lodge Limited. The court found the respondent did not demonstrate it addressed the high staff turnover or facilitated the claimant, and that the insubordination allegation was not particularised or proved. The termination was held unfair under section 45. The court awarded six months' salary, Kshs.510,000/-, as compensation, disallowed the gratuity claim because the claimant was registered with NSSF, and ordered remittance of all statutory deductions (NSSF and PAYE with penalties) that were deducted but not remitted. The claimant was awarded costs of the suit; the compensation award is subject to statutory deductions and attracts interest at court rates from the date of judgment until payment in full.

Key legal issues

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01

Proof of reasons for termination under section 43 and 47(5) of the Employment Act

Holding

The respondent failed to prove non-performance and insubordination; the termination was unfair under section 45

Reasoning

The court held that poor performance as a ground must meet section 45(2)(5): the employer must show a fair reason and prove it. The claimant showed understaffing and pay disparities at the Jubilee site; the respondent did not demonstrate it addressed staff turnover or facilitated the claimant. The insubordination allegation lacked particulars. The employer therefore failed to discharge its statutory burden.

p. 8
02

Remedies for unfair termination

Holding

Six months' salary (Kshs.510,000/-) awarded as compensation; gratuity refused; unremitted statutory deductions to be remitted with penalties

Reasoning

The claimant served about one year three months and, being last in, would first be considered in a redundancy; six months' salary was held adequate compensation. Gratuity was disallowed due to NSSF registration. The court ordered remittance of NSSF dues and PAYE with penalties that were deducted but not remitted.

p. 8

Legal principles established

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  • The burden of proving the reason or reasons for termination rests on the employer, and failure to do so renders the termination unfair
  • Reliance on poor performance requires the employer to demonstrate a performance measurement system, appraisals, warnings and facilitation of the employee

Court orders

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  1. 1.The respondent shall pay the claimant Kshs.510,000/- on account of compensation for unfair termination of service
  2. 2.The respondent shall remit, including penalties where applicable, all statutory deductions made from the claimant's salary but not remitted
  3. 3.The claimant shall have costs of the suit
  4. 4.Prayer (a) shall be subject to statutory deductions but shall attract interest at Court rates from the date of the judgment until payment in full
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007

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, "Mbui v Jilag Limited & another (Cause 122 of 2019) [2023] KEELRC 2142 (KLR)", Case Analysis (2023). Not stated in the judgment text provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2142/eng@2023-09-22

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