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ELRCPartially AllowedStatement of Claim dated 3rd April, 2018 (ELRC cause)· [2024] KEELRC 1157 (KLR)

Otieno v Sameer Agri & Livestock Kenya Ltd (Cause 290 of 2018) [2024] KEELRC 1157 (KLR)

Employment and Labour Relations Court
24 April 2024
1,885 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employer couldn't prove poor performance claims, so the court awarded a former sales representative over Kshs. 500,000 for unfair termination.

What this practically means

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Executive summary

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The Claimant, formerly employed by the Respondent as a Sales Representative on a gross monthly salary of Kshs.22,000.00, sued alleging discrimination on grounds of pregnancy, harassment and intimidation at work, and unlawful termination of her employment on 9th October, 2017 without notice or disciplinary process. She sought declarations of discrimination and unfair termination, plus notice pay, twelve months' compensation, service pay, leave days, salary from June, general damages, a certificate of service, costs and interest. The Respondent denied the claim, asserting poor performance evidenced by warning letters, a reprimand, a show-cause letter and a termination notice. The court framed three issues: whether the termination was wrongful, unfair and unlawful; entitlement to relief; and costs. On the evidence, the court found the Respondent had no performance evaluation programme communicated to the Claimant, no proof that poor performance or absenteeism was brought to her attention with an opportunity to improve, and no disciplinary hearing before termination, contrary to Sections 41, 42 and 45 of the Employment Act, 2007 and Articles 47 and 50(1) of the Constitution. The court held the termination unlawful and awarded notice pay of Kshs.22,000.00, twelve months' compensation of Kshs.264,000.00, service pay of Kshs.220,000.00 (total Kshs.506,000.00) and a certificate of service within 30 days. No express finding was made on pregnancy discrimination, and no costs or interest order issued despite the prayers.

Key legal issues

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01

Whether the termination was wrongful, unfair and unlawful

Holding

The termination was unlawful for want of valid reasons established through a communicated performance evaluation system and for failure to follow fair procedure under Sections 41, 42 and 45 of the Employment Act, 2007.

Reasoning

The court found no evidence of a performance evaluation programme communicated to the Claimant and no proof that poor performance was brought to her attention with an opportunity to improve. There was also no evidence of absenteeism. The HR Manager's witness statement acknowledged no job training was provided. The Claimant was issued a termination letter without any disciplinary hearing, breaching substantive and procedural fairness.

p. 5
02

Whether the Claimant was discriminated against on grounds of pregnancy

Holding

No express finding or declaration of discrimination was made; the court decided the case on unlawful termination.

Reasoning

The Respondent invoked the criteria in GMV v Bank of Africa Kenya Limited requiring proof of membership of a protected class, qualification for the job, adverse action caused by pregnancy, and a nexus between the decision and the pregnancy. The court's final orders do not include a declaration of discrimination, indicating the claim was resolved on the termination issue alone.

p. 4
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Whether the Claimant is entitled to the relief sought

Holding

Having succeeded on unlawful termination, the Claimant was awarded notice pay, twelve months' compensation, service pay and a certificate of service.

Reasoning

The court held that success on the unlawful termination claim entitled the Claimant to relief, and awarded one month's notice pay, twelve months' gross salary as compensation under Section 49 of the Employment Act framework, service pay for 20 months, and directed issuance of a certificate of service within 30 days.

p. 5

Legal principles established

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  • An employer relying on poor performance must demonstrate a performance evaluation programme or criteria communicated to the employee; it is not enough to simply assert poor performance.
  • Termination without taking the employee through a due disciplinary process is unlawful.

Court orders

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  1. 1.A declaration that the termination of employment of the Claimant by the Respondent was wrongful, unfair, unprocedural and unlawful
  2. 2.One (1) month's salary in lieu of notice of Kshs.22,000.00
  3. 3.Twelve (12) months' salary as compensation for unlawful termination of employment, Kshs.264,000.00
  4. 4.Service pay calculated at 22,000.00 x 20 months x 15/30 = Kshs.220,000.00, total of claim Kshs.506,000.00
  5. 5.The Respondent to issue the Claimant with a certificate of service within 30 days of the judgment

Authorities

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Legislation

  • Employment ActSections 41, 43, 44, 45, 45(2), 47, 42
  • Constitution of Kenya, 2010Article 47; Article 50(1)

Cases cited (3)

  • Jane Samba Mukala v Ol Tukai Lodge Limited
    Industrial Cause No. 823 of 2010 [2010] LLR 255 (ICK)
  • Jane Wairimu Machira v Mugo Waweru & Associates
    [2012] eKLR
  • GMV v Bank of Africa Kenya Limited
    [2023] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment and labour relations disputes; Articles 47 and 50(1) of the Constitution, 2010 and the Employment Act, 2007 invoked

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Otieno v Sameer Agri & Livestock Kenya Ltd (Cause 290 of 2018) [2024] KEELRC 1157 (KLR)", Case Analysis (2024). Statement of Claim dated 3rd April, 2018 (ELRC cause). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1157/eng@2024-04-24

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