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ELRCPartially AllowedELRC Appeal from CMELRC No. E420 of 2021· [2024] KEELRC 1769 (KLR)

Kithao v Ital Global Limited (Appeal E070 of 2023) [2024] KEELRC 1769 (KLR)

Employment and Labour Relations Court
28 June 2024
5,365 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~21 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court confirmed that a termination notice alone doesn't make a dismissal fair—employers must also hear employees and prove poor performance with real evidence.

What this practically means

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Executive summary

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The Appellant, employed on 13th November 2020 as a Customer Service Attendant on a one-year contract and deployed at MP Shah Hospital, was terminated by notice dated 12th January 2021 for alleged poor performance and absenteeism. The Trial Court (Hon. Ruguru N., SPM) dismissed her claim for unfair termination, and she appealed to the ELRC. The Appellant argued that the Respondent produced no documentary proof of the hospital's complaints, relied on hearsay, and never followed the mandatory procedure under Section 41 of the Employment Act. The Respondent maintained that the contractual one-month notice made the termination lawful. Allowing the appeal, Ocharo Kebira J, as a first appellate court, re-evaluated the evidence per Selle v Associated Motor Boat Co. The court held that issuing a contractual termination notice does not satisfy Section 41's mandatory notification, hearing and consideration components, and that the statutory procedure cannot be contracted out. The Respondent also failed to discharge its burden under Sections 43 and 45(2) to prove valid and fair reasons: no evidence of the hospital's complaints or of any performance evaluation mechanism was produced, and the absenteeism ground failed because the contract made no provision for working on public holidays and the clarifying email postdated the absences. The judgment of 5th May 2023 was set aside and substituted with a declaration of unfair termination, compensation of ten months' gross salary (Kshs. 270,000/-), interest at court rates, and costs to the Respondent. Claims for notice pay, house allowance and the remainder of the contract were declined.

Key legal issues

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01

Whether the termination of the Appellant's employment was unfair

Holding

Yes – the termination was both procedurally and substantively unfair

Reasoning

The court held that the Respondent misconceived Section 41 by treating the issuance of a termination notice as satisfying the mandatory notification, hearing and consideration components. The Respondent also failed to prove poor performance under Sections 43 and 45(2), producing no correspondence or evidence from MP Shah Hospital and no performance evaluation mechanism. The absenteeism ground also failed because the contract made no provision for working on public holidays and the clarifying email came after the alleged absences.

p. 9
02

What reliefs are available to the Appellant

Holding

A declaration of unfair termination and compensation of ten months' gross salary with interest; notice pay, house allowance and salary for the remainder of the contract were declined

Reasoning

Notice pay was refused because one month's notice was given; house allowance was refused as the salary was consolidated; the remainder-of-contract claim was refused per Mary Mutanu Mwendwa. Compensatory damages under Section 49(1)(c) were awarded at ten months' gross salary considering the procedural and substantive breaches, the Respondent's failure to respond to the Appellant's requests for reasons, and her legitimate expectation to serve the contract term.

p. 10
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The correct appellate approach on a first appeal

Holding

The court, as a first appellate court, is obliged to re-evaluate the evidence and reach its own conclusions

Reasoning

Relying on Selle v Associated Motor Boat Co. and Abdul Hameed Saif v Ali Mohamed Sholan, the court reconsidered the evidence afresh while making due allowance for not having seen or heard the witnesses.

p. 5

Legal principles established

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  • Issuance of a contractual termination notice or notice pay does not, of itself, satisfy the mandatory procedural requirements of Section 41 of the Employment Act
  • Fairness of termination requires both substantive justification and procedural fairness
  • Section 47(5) of the Employment Act imposes a reverse burden of proof: the employee must first establish prima facie unfair termination, after which the evidential burden shifts to the employer to justify the termination
  • An employer terminating for poor performance bears a high level of proof, including a performance evaluation policy or practice, measures to address poor performance, and an opportunity for the employee to be heard
  • Where the written contract of employment is deficient regarding terms such as working on public holidays, resulting misimpressions should not be used to the prejudice of the employee

Court orders

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  1. 1.This Appeal is hereby allowed
  2. 2.Setting aside of the entire judgment delivered on 5th May 2023 in CMELRC No. E420 of 2021 and substitution with the following orders
  3. 3.A declaration that the Appellant's employment was terminated unfairly
  4. 4.Compensation for unfair termination equivalent to ten months' gross salary (27,000/- x 10) Kshs. 270,000/-
  5. 5.Interest on the compensation at Court rates from the date of judgment until payment in full
  6. 6.Costs of the suit to be borne by the Respondent

Authorities

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Legislation

  • Employment ActSections 41, 43, 44, 45(2), 45(7), 47(5), 49(1)(c), 9 and 10
  • Regulation of Wages and Conditions of Employment ActCap 229
  • Constitution of KenyaArticles 159(2)(d) and 48
  • Civil Procedure ActSection 1B
  • Civil Procedure RulesOrder 21 Rule 1

Cases cited (10)

  • David Gichana Omuya vs Mombasa Maize Millers Limited
    [2014] eKLR
  • Abok James Odera T/A as A.J. Odera & Associates vs John Patrick Machira T/A Machira & Company Advocates
    [2013] eKLR
  • Kenfreight (E.A) Limited vs Benson K Nguti
    [2016] eKLR
  • D.K. Marete vs Teachers Service Commission
    Cause No. 39 of 2009
  • Selle -vs- Associated Motor Boat Co.
    [1968] EA 123
  • Abdul Hameed Saif vs. Ali Mohamed Sholan
    [1955] 22 E.A.C.A. 270
  • Walter Ogal Anuro –v- Teachers Service Commission
    (2013) 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)
  • Mary Mutanu Mwendwa v Ayuda Ninos De Africa-Kenya
    [2013] eKLR
On appeal from
Chief Magistrate's Court at Nairobi, Milimani Commercial Courts
CMELRC No. E420 of 2021
Jurisdiction invoked
First appellate jurisdiction over the Chief Magistrate's Court (Employment and Labour Relations) appeal

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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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, "Kithao v Ital Global Limited (Appeal E070 of 2023) [2024] KEELRC 1769 (KLR)", Case Analysis (2024). ELRC Appeal from CMELRC No. E420 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1769/eng@2024-06-28

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