Mburu v Insight Management Consultants Limited & another (Cause 2442 of 2016) [2024] KEELRC 2123 (KLR)
The bottom line
#Kenya's Employment Court ruled a staffing agency employee can only sue his actual employer, and fair performance-based dismissal is lawful.
What this practically means
#Executive summary
#Key legal issues
#Identity of the employer
The Claimant was an employee of the 1st Respondent only; the claim against the 2nd Respondent was declined.
All contracts were executed with the 1st Respondent, which paid and reviewed his salary, evaluated performance, exercised disciplinary control, terminated the contract and issued the Certificate of Service. Clause 6 expressly excluded an employer-employee relationship with the client. No evidence suggested he was a shared employee.
Fairness and validity of termination
Termination was procedurally fair and founded on a valid reason under Sections 41, 43 and 45 of the Employment Act.
The Claimant was placed on a Performance Improvement Plan, attended performance review meetings, was heard at a three-way meeting of 5th September 2016, and was allowed an appeal which was considered and rejected. His concession on cross-examination that his sales were under par, attributed to donating sales to his trainee, confirmed under-par performance.
Defamation
The e-mail to customers informing them of the Claimant's departure was not defamatory.
The notice was a statement of fact, not malicious or damaging, and was made within the spirit of restrictive covenants in clauses 24 and 25 of the contract. It was usual and permissible to notify customers that a salesperson had ceased employment and was no longer authorized to transact business.
Legal principles established
#- The reason for termination is what the employer genuinely believed to exist at the time of termination, per Section 43 of the Employment Act.
- Employers are entitled to enforce restrictive covenants against former employees covering non-competition, non-solicitation, non-dealing and non-poaching.
- An employee deployed to a client company under a manpower-supply arrangement is not thereby an employee of that client where the contract excludes such a relationship.
Court orders
#- 1.The Claim is declined against both Respondents.
- 2.No order on the costs.
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act (Sections 41, 43 and 45 applied); specific constitutional/statutory provision not stated in judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mburu v Insight Management Consultants Limited & another (Cause 2442 of 2016) [2024] KEELRC 2123 (KLR)", Case Analysis (2024). Cause No 2442 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2123/eng@2024-08-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.