Kithao v Ital Global Limited (Appeal E070 of 2023) [2024] KEELRC 1769 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the termination of the Appellant's employment was unfair
Yes – the termination was both procedurally and substantively unfair
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.
What reliefs are available to the Appellant
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
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.
The correct appellate approach on a first appeal
The court, as a first appellate court, is obliged to re-evaluate the evidence and reach its own conclusions
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.
Legal principles established
#- 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
#- 1.This Appeal is hereby allowed
- 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.A declaration that the Appellant's employment was terminated unfairly
- 4.Compensation for unfair termination equivalent to ten months' gross salary (27,000/- x 10) Kshs. 270,000/-
- 5.Interest on the compensation at Court rates from the date of judgment until payment in full
- 6.Costs of the suit to be borne by the Respondent
- 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
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Ingati v Securkenya Group Limited (Appeal E058 of 2024) [2025] KEELRC 2656 (KLR)[2025] KEELRC 2656 (KLR)26 Sept 2025
- Wafula & another v Equator Bottlers Limited & another (Appeal E026 & E042 of 2024 (Consolidated)) [2025] KEELRC 1421 (KLR)[2025] KEELRC 1421 (KLR)15 May 2025
Cite this brief
#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.