Mbuchi v Software Group Kenya (Cause E718 of 2021) [2024] KEELRC 1934 (KLR)
The bottom line
#Kenya's Employment Court ruled a 'poor performance' dismissal unfair, awarding an employee six months' salary because the employer faked the process.
What this practically means
#Executive summary
#Key legal issues
#Whether the termination was substantively justified
No - the dismissal was unfair and unlawful under sections 43, 45 and 47 of the Employment Act; the reasons were not genuine and the performance scores were manipulated
The court found the warning letter of 21st December 2020 referencing September 2020 incidences was irregular and fictitious in content, and that the evaluation report was manipulated to portray the Claimant as a poor performer. There was no established tool or system relied upon to measure the Claimant's performance before the PIP, the PIP ran for four weeks instead of the six weeks communicated, and no appraisal followed the PIP. The court concluded the process had a predetermined outcome.
Whether procedural fairness under section 41 was observed
No - the Respondent violated the Claimant's rights to fair administrative action, fair labour practices and a fair hearing
The court found that no show cause letter was issued and no disciplinary hearing was conducted before termination. The PIP process was a mere formality done to demonstrate compliance with due process. Accordingly, declarations of violation of Articles 47, 41, 50(1) and 10 were issued.
Whether the Claimant is entitled to the reliefs sought
Partially - 6 months' salary compensation awarded; reinstatement abandoned, bonuses and house allowance claims failed
As a successful litigant, with reinstatement not possible, the Claimant received 6 months' salary compensation of Kshs. 2,027,994 plus costs and interest. However, the bonus claim failed as unproved special damages, the house allowance claim failed because the salary was gross/consolidated under clause 4(a), and notice pay and breach of contract claims were not pursued.
Legal principles established
#- For a termination to pass the fairness test, there must be both substantive justification and procedural fairness
- Termination on grounds of poor performance places a high burden on the employer to prove performance measurement mechanisms and a genuine PIP
- Constitutional petitions should not be used to disguise ordinary contractual labour disputes (doctrine of constitutional avoidance)
- Gross salary is basic salary plus all allowances
- He who alleges must prove (section 107 Evidence Act) and courts will not award unproved special damages
Court orders
#- 1.Declaration that the Respondent violated the Claimant's rights to fair administrative action under Article 47 and fair labour practices under Article 41
- 2.Declaration that the Respondent violated the Claimant's right to a fair hearing under Article 50(1) and rights under Article 10 of the Constitution
- 3.Award of 6 months' salary as compensation for the unlawful dismissal - Kshs. 2,027,994/-
- 4.Costs of the suit
- 5.Interest at court rates on the compensation sum from date of judgment till payment in full
- Jurisdiction invoked
- Employment and Labour Relations Act, Article 162(2) of the Constitution (implied by the claim's framing under Articles 41, 47, 50(1) and 10); not expressly cited
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mbuchi v Software Group Kenya (Cause E718 of 2021) [2024] KEELRC 1934 (KLR)", Case Analysis (2024). Not stated in judgment text. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1934/eng@2024-07-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.