Okemwa v Intra Africa Assurance Company Limited (Cause 457 of 2018) [2023] KEELRC 2427 (KLR)

The termination letter cited only 'loss of confidence' in general terms without particulars. RW1 attributed the loss of confidence to poor performance in the first quarter of 2018, but no evidence of poor performance or performance parameters was adduced. Since the termination letter did not state poor performance as the reason, that reason could not be attributed to the termination. The employer therefore failed to discharge its evidential burden under Sections 43(1) and 45(2)(a) and (b).

Section 45(2)(c) requires termination to follow a fair procedure as stipulated in Section 41(1): explanation of grounds, notification of the reasons under consideration, entitlement to be accompanied by a fellow employee or union representative, and a hearing of representations. It was undisputed the Claimant went through none of these; her termination took effect the same day it was communicated. Failure to meet the Section 41 threshold invalidated the termination.

The letter of appointment entitled the Claimant to an annual leave allowance of Kshs 108,750, which was scrapped effective 1st January 2018 via a memorandum. This reduced her remuneration and constituted a fundamental change to her contract. Section 10(5) requires the employer, in consultation with the employee, to revise the contract and notify the employee in writing. No evidence of the Claimant's consent was produced, so the change was unilateral and unlawful.

Section 27 of the Civil Procedure Act gives the court discretion over costs, with the general rule that costs follow the event. The Claimant never disputed the counterclaim and settled the outstanding loan balance in 2021, so the Respondent was the successful party on the counterclaim and was awarded its costs, to be taxed by the Deputy Registrar.