Salim v Xplico Insurance Company Limited (Cause 178 of 2018) [2023] KEELRC 2492 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Procedural and substantive fairness of the termination
The termination was wrongful and unfair: the Respondent gave no one month's notice or pay in lieu, gave no valid reason, and followed neither section 40 (if redundancy) nor section 41 (if poor performance).
The letter of 28th July 2017 cited restructuring and unsatisfactory performance but did not give one month's notice or pay in lieu. The Claimant's record included successive salary increments, inconsistent with poor performance. The Respondent followed neither the contractual termination clause nor sections 40 or 41 of the Employment Act, rendering the termination null and void and entitling the Claimant to recompense under section 49.
Effect of the Respondent's failure to call evidence
The Claimant's evidence stood uncontroverted and unchallenged and was thus credible and proved on a balance of probability.
The Respondent did not call any witness and the defence case was closed. Relying on section 107 of the Evidence Act and precedent, the court accepted that where a defendant adduces no evidence, the plaintiff's evidence is to be believed, since allegations by the defence are not evidence and untested evidence remains unchallenged and uncontroverted.
Legal principles established
#- Termination for poor performance must comply with sections 41, 43 and 45 of the Employment Act; an employer relying on poor performance must have put in place a policy or practice for measuring performance
- Where a defendant does not adduce evidence, the plaintiff's uncontroverted evidence is credible and may be acted upon
Court orders
#- 1.Judgment for the Claimant against the Respondent for ksh 516,000/- being outstanding salary for 3 months
- 2.ksh 103,200/- for 18 leave days
- 3.ksh 516,000/- being 3 months salary as compensation for unfair and unlawful termination
- 4.Interest at court rates on the sums above from the date of judgment till payment in full
- 5.Costs of the suit to the Claimant
- 6.Certificate of service
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act (sections 41, 43, 45 and 49) over the claim of unfair and wrongful termination
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Salim v Xplico Insurance Company Limited (Cause 178 of 2018) [2023] KEELRC 2492 (KLR)", Case Analysis (2023). Statement of Claim dated 14th February 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2492/eng@2023-10-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.