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ELRCPartially AllowedCause No E804 of 2022· [2023] KEELRC 2686 (KLR)

Njoroge v Cold Solutions Kiambu Sez Limited (Cause E804 of 2022) [2023] KEELRC 2686 (KLR)

Employment and Labour Relations Court
27 October 2023
SRStella Rutto
4,022 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~16 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled that firing an employee for poor performance without clear, measurable targets and performance reviews is unfair, awarding three months' salary.

What this practically means

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Executive summary

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The Claimant was employed by the Respondent as Human Resource Manager on a six-month probationary contract effective 14th February 2022. Her employment was terminated on 3rd August 2022 on grounds of poor performance. She sued, contending the termination was procedurally and substantively unfair, and sought Kshs 4,200,000 being maximum compensation, plus costs and interest. The Respondent maintained the termination was procedurally, substantively and legally fair, that the Claimant remained a probationary employee, and sought dismissal of the suit with costs. Both parties testified and filed submissions. The court framed three issues: justifiable reason, fair process, and reliefs. On substance, the court held that the Respondent bore the burden under Sections 43(1) and 45 of the Employment Act to prove a valid and fair reason. Although the Claimant's job description listed 28 duties, no specific, measurable, time-bound targets had been set for probation, no performance evaluation mechanism existed, and no overall performance evaluation report was produced. Following National Bank of Kenya v Samuel Nguru Mutonya and Jane Samba Mukala v Ol Tukai Lodge, the court found the decision on unsatisfactory performance was not based on objective assessment and was therefore substantively unfair. On procedure, however, the court found the Respondent complied with Section 41: the Claimant was notified of the allegations, responded, and was heard; failure to state expressly that termination was contemplated was not fatal. The claim thus partially succeeded. The court awarded compensatory damages of Kshs 1,050,000 (three months' gross salary), reflecting the short employment duration, with interest at court rates from the date of judgment and costs of the suit. Judgment was delivered at Nairobi on 27th October 2023 by Stella Rutto, Judge.

Key legal issues

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01

Whether there was a justifiable reason for termination

Holding

The Respondent failed to prove a valid and fair reason; termination was substantively unjustified

Reasoning

The Claimant's job description had 28 duties but no specific measurable, time-bound targets were set for the probation period. The Respondent adduced no evidence of measures to evaluate performance against targets and produced no overall performance evaluation report. Following National Bank of Kenya v Samuel Nguru Mutonya, the employer is held to a high level of proof in poor-performance terminations. Absent objective assessment, the conclusion of unsatisfactory performance could not stand.

p. 7
02

Whether the Claimant was accorded a fair process

Holding

The process complied with Section 41 of the Employment Act; the termination was procedurally fair

Reasoning

The Claimant was notified of the allegations by a Notice of Hearing, responded in writing, appeared before a disciplinary panel and was afforded an opportunity to explain herself and present her views. Although the notice did not expressly state that termination was contemplated, a disciplinary hearing notice itself signals that termination is a possible outcome. The Respondent therefore met the basic requirements of a fair hearing under Section 41.

p. 8
03

Entitlement to reliefs

Holding

Compensatory damages of three months' gross salary awarded, with interest and costs

Reasoning

Having found the termination substantively unfair, the court awarded compensatory damages equivalent to three months' gross salary. The modest award reflected the considerably short length of the employment relationship (about six months, on probation) and the circumstances of the termination. Interest at court rates from the date of judgment and costs of the suit were also granted.

p. 8

Legal principles established

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  • An employer bears the burden of proving valid and fair reasons for termination, failing which the termination is unfair
  • Before terminating for poor performance, an employer must have put in place measurable targets and an objective performance assessment mechanism
  • A notice of disciplinary hearing which does not expressly state that termination is being considered is not fatal to the fairness of the process

Court orders

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  1. 1.Judgment entered in favour of the Claimant against the Respondent
  2. 2.Compensatory damages in the sum of Kshs 1,050,000.00 being equivalent to three (3) months of her gross salary
  3. 3.Interest on the amount at court rates from the date of Judgment until payment in full
  4. 4.The Claimant shall also have the costs of the suit

Authorities

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Legislation

  • Employment ActSection 43(1)
  • Employment ActSection 45(2)(a) and (b)
  • Employment ActSection 45(2)(c)
  • Employment ActSection 41(1)
  • Employment ActSection 42(1)
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48
  • Civil Procedure ActSection 1B
  • Civil Procedure RulesOrder 21 Rule 1

Cases cited (5)

  • Kenya Union of Commercial Food and Allied Workers vs Amus Motors Limited
    (Cause 1721 of 2017) [2023] KEELRC 860 (KLR)
  • Isdor Rachuonyo vs Brava Food Industries Limited
    (2021) eKLR
  • Danish Jalang'o & another vs Amicabre Travel Services Limited
    (2014) eKLR
  • National Bank of Kenya vs Samuel Nguru Mutonya
    [2019] eKLR
  • Jane Samba Mukala v Ol Tukai Lodge Limited
    Industrial Cause Number 823 of 2010; (2010) LLR 255 (ICK)
Jurisdiction invoked
Original employment and labour relations jurisdiction of the Employment and Labour Relations Court under the Employment Act

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, "Njoroge v Cold Solutions Kiambu Sez Limited (Cause E804 of 2022) [2023] KEELRC 2686 (KLR)", Case Analysis (2023). Cause No E804 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2686/eng@2023-10-27

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