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ELRCPartially Allowed· [2024] KEELRC 1658 (KLR)

Kirigia v First Drinks (K) Limited (Employment and Labour Relations Cause 774 of 2017) [2024] KEELRC 1658 (KLR)

Employment and Labour Relations Court
24 June 2024
6,981 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~28 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled an employee was unfairly sacked for poor performance where the employer held no proper hearing and kept sloppy appraisals.

What this practically means

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Executive summary

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The Claimant sued the Respondent, her former employer, seeking a declaration that her termination was unlawful, 12 months' salary as damages for unfair termination, one month's salary in lieu of notice, refund of a Kshs. 3,000/- salary deduction, general damages for emotional distress, interest and costs. She was employed in February 2015 and terminated by letter dated 3rd February 2017 on grounds of poor performance, with appraisal scores of 51% and 36%. After she protested, the Respondent's Board conditionally reinstated her on a three-month performance probation; she declined and the Respondent treated her as separated. The Court framed two issues: whether the termination was unfair and whether the reliefs were payable. Applying Section 47(5) of the Employment Act, the Court held the Claimant discharged her prima facie burden. On procedural fairness, the Respondent's witness could not confirm any disciplinary hearing, and the right of accompaniment was offered only after the decision to terminate had been made, breaching Section 41. On substantive fairness, the appraisals were contradictory, unsigned and largely unfilled, no Performance Improvement Plan was in place, and the mentor the employer was to source was never provided; hence the termination was substantively unfair. The conditional reinstatement on performance probation had no contractual or statutory basis and was an unfair labour practice; the Claimant was entitled to refuse it. Judgment was entered: a declaration of unfair termination, Kshs. 3,000/- refund, six months' salary (Kshs. 1,260,000/-) as compensation, Kshs. 210,000/- in lieu of notice, interest at court rates, and costs to the Claimant. General damages for emotional distress were declined for want of evidence.

Key legal issues

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01

Procedural fairness in termination for poor performance

Holding

The Respondent failed to comply with Section 41 of the Employment Act; no disciplinary hearing was held and the right of accompaniment was extended only after the decision to terminate had been taken

Reasoning

Section 41 requires the employer to notify the employee of the contemplated termination and reasons, allow representations with the right to accompaniment, and consider them before deciding. The Respondent's witness could not confirm any disciplinary hearing. The termination letter offered explanation and appeal rights only after the decision had been made, and the purported Performance Improvement Plan was never implemented.

p. 9
02

Substantive justification of termination for poor performance

Holding

The termination was substantively unfair; the Respondent failed to prove valid and fair reasons as the appraisals were contradictory, unsigned, largely unfilled, and no Performance Improvement Plan was in place

Reasoning

The mid-year review scoring 51% contradicted the appraiser's comment of 'meets expectation' and the supervisor's 78% score; the end-year form was unsigned and largely unfilled. The employer had no policy for measuring performance, no Performance Improvement Plan, and blamed the Claimant for the unavailability of a mentor the employer itself was to source.

p. 12
03

Conditional reinstatement on performance probation

Holding

The conditional reinstatement placing a confirmed employee on a three-month performance probation had no contractual, policy or statutory basis and was an unfair labour practice; the Claimant was entitled to decline it

Reasoning

The Respondent did not demonstrate that the probation decision flowed from the employment contract, HR policy or written law. A confirmed employee cannot be re-subjected to probation. The attempt to portray the Claimant as having caused the separation through her refusal could not sanitize the unfair termination that had already occurred.

p. 12
04

Deduction of Kshs. 3,000/- from salary

Holding

The deduction was unjustified as the Respondent proved no contractual or policy basis for it

Reasoning

The Respondent asserted the deduction related to a car benefit but produced no documentation anchoring it on a contract stipulation or policy. The assertion remained a bald assertion and the Court granted the prayer for the deducted amount.

p. 13

Legal principles established

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  • An employer terminating for poor performance must show a policy or practice for measuring performance, measures taken to address poor performance, and must afford the employee a hearing with the right to accompaniment before termination
  • An employee who has been confirmed into employment cannot be re-subjected to probation
  • Section 47(5) of the Employment Act imposes a sequential dual burden: the employee first proves that unfair termination occurred, then the employer justifies the grounds
  • A purported reinstatement conditional on performance probation lacking contractual or statutory basis is an unfair labour practice, and the employee was entitled to decline it

Court orders

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  1. 1.A declaration that the Claimant's employment was terminated unfairly and unlawfully
  2. 2.The Respondent to pay the Claimant the deducted amount from her salary of Kshs. 3,000/-
  3. 3.Compensation for unfair termination of Kshs. 1,260,000/- (Kshs. 210,000/- x 6 months)
  4. 4.Salary in lieu of notice of Kshs. 210,000/-
  5. 5.Interest on the monetary awards at Court rates from the date of judgment until payment in full
  6. 6.The Respondent shall bear the costs of the suit

Authorities

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Legislation

  • Employment Act 2007Section 41
  • Employment Act 2007Section 42(1)
  • Employment Act 2007Section 43
  • Employment Act 2007Section 45(2)
  • Employment Act 2007Section 45(7)
  • Employment Act 2007Section 47(5)
  • Employment Act 2007Section 49(1)(c)
  • Constitution of Kenya 2010Article 159(2)(d)
  • Constitution of Kenya 2010Article 48
  • Civil Procedure Act (Chapter 21, Laws of Kenya)Section 1B
  • Civil Procedure RulesOrder 21 Rule 1

Cases cited (8)

  • Naumy Jemutai Kirui v Unilever Tea Kenya Limited
    [2020] eKLR
  • Pius Machafu Isindu vs Lavington Security Services Limited
    [2017] eKLR
  • Magdalene M. Ngea vs National Cereals and Produce Board
    [2017] eKLR
  • Kenya Revenue Authority vs Reuwel Waithaka Gitahi & 2 Others
    [2019] eKLR
  • Gladys Chelimo Bii v Kenya Power and Lighting Company Limited
    [2021] eKLR
  • Kenfreight (E. A) Limited vs Benson K. Nguti
    [2016] eKLR
  • National Bank of Kenya v 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
Employment and Labour Relations Court jurisdiction under the Employment Act 2007 (Sections 41, 43, 45, 47(5), 49(1)(c))

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, "Kirigia v First Drinks (K) Limited (Employment and Labour Relations Cause 774 of 2017) [2024] KEELRC 1658 (KLR)", Case Analysis (2024). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1658/eng@2024-06-24

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