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ELRCPartially AllowedCause No E984 of 2021· [2024] KEELRC 2632 (KLR)

Boke v Neatworld Services (Cause E984 of 2021) [2024] KEELRC 2632 (KLR)

Employment and Labour Relations Court
25 October 2024
SRStella Rutto
3,921 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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A Kenyan court ruled that firing an employee for poor performance without measurable targets or performance reviews is unfair, awarding her over Kshs 267,000.

What this practically means

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Executive summary

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The Claimant, employed in December 2020 as Recycling Manager at the Respondent's Limuru waste recycling plant, was dismissed on 12th October 2021 (termination letter dated 8th October 2021) on grounds of poor performance, including failure to plan and direct plant activities, drive financial performance, identify market opportunities and develop new business. She claimed Kshs 764,707.51 in unpaid salary, notice pay, overtime, leave pay and salary for the remainder of her contract. The Respondent admitted only Kshs 42,974.51 in leave and overtime, denied the claim and asserted due process. The court framed three issues: justifiable reason, procedural fairness and entitlement to reliefs. On substance, it held that performance-based termination requires measurable targets, key performance indicators, evaluation measures and appraisal reports; the Respondent produced none, relying only on oral testimony of its two director witnesses, and thus failed to discharge its burden under Sections 43(1) and 45(2)(a) and (b) of the Employment Act, following National Bank of Kenya v Samuel Nguru Mutonya. The termination was substantively unjustified and unfair. Procedurally, however, the show-cause notice, the Claimant's response, invitation to and attendance at a disciplinary hearing satisfied Section 41(1), so the process was fair. The court awarded compensatory damages of Kshs 225,000.00 (three months' gross salary), reflecting the short employment duration, plus the conceded leave (Kshs 29,047.51) and overtime (Kshs 13,927.00), totalling Kshs 267,974.51, with interest at court rates from judgment and costs to the Claimant. Claims for notice pay and September salary were declined as already paid, and no greater overtime or leave award was made absent supporting evidence.

Key legal issues

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01

Justifiability of the reasons for termination (poor performance)

Holding

The termination was not substantively justified because the employer produced no targets, KPIs, evaluation measures or performance reports

Reasoning

Section 43(1) and 45(2)(a) and (b) of the Employment Act place the burden on the employer to prove valid and fair reasons. Where poor performance is alleged, the employer must show the measures used to assess performance against set targets. The performance areas were never reduced into measurable targets or KPIs and there was no evaluation report; the employer's decision was therefore not based on an objective assessment and could not be proved.

p. 7
02

Procedural fairness prior to termination

Holding

The Respondent complied with Section 41(1): show-cause notice issued, response received, hearing convened and explanation given

Reasoning

The Claimant received a Notice to Show Cause dated 28th September 2021, responded to it, was invited by letter dated 1st October 2021 to a disciplinary hearing on 4th October 2021, attended, and the minutes show she articulated her case. This satisfied the requirements of Section 41(1) of the Employment Act, so the process was fair even though the substantive reason failed.

p. 7
03

Reliefs

Holding

Three months' gross salary as compensatory damages plus the conceded leave and overtime amounts, with interest and costs

Reasoning

Compensatory damages were limited to three months' gross salary given the short duration of employment (December 2020 to October 2021) and the circumstances of termination. Notice pay and September salary were already paid; overtime and leave were awarded only at the conceded figure of Kshs 42,974.51 for want of evidence of more.

p. 7

Legal principles established

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  • An employer must prove the reasons for termination; failure to do so renders the termination unfair
  • Termination for poor performance requires measurable targets, key performance indicators and periodic performance evaluation; without these the conclusion of poor performance is not an objective assessment

Court orders

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  1. 1.Judgment entered in favour of the Claimant against the Respondent
  2. 2.Compensatory damages of Kshs 225,000.00 being three months' gross salary
  3. 3.Unpaid leave of Kshs 29,047.51
  4. 4.Accrued overtime pay of Kshs 13,927.00
  5. 5.Total award of Kshs 267,974.51
  6. 6.Interest on the total award at court rates from the date of Judgment until payment in full
  7. 7.Claimant to have the costs of the suit

Authorities

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Legislation

  • Employment ActSection 43(1)
  • Employment ActSection 45(2)(a) and (b)
  • Employment ActSection 45(2)(c)
  • Employment ActSection 41(1)
  • Employment ActSection 42(1)
  • Employment ActSection 8
  • Civil Procedure RulesOrder 21 Rule 1
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48
  • Civil Procedure Act (Chapter 21)Section 1B

Cases cited (2)

  • National Bank of Kenya vs Samuel Nguru Mutonya
    [2019] eKLR
  • Jane Samba Mukala v Ol Tukai Lodge Limited
    Industrial Cause Number 823 of 2010; (2010) LLR 255 (ICK) (September, 2013)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act (implied); judgment does not expressly cite the jurisdictional provision

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, "Boke v Neatworld Services (Cause E984 of 2021) [2024] KEELRC 2632 (KLR)", Case Analysis (2024). Cause No E984 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2632/eng@2024-10-25

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