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ELRCPartially AllowedNot stated in the judgment as provided· [2025] KEELRC 49 (KLR)

Owenga v First Community Savings & Credit Co-operative Society Ltd (Cause E061 of 2024) [2025] KEELRC 49 (KLR)

Employment and Labour Relations Court
22 January 2025
JGJacob Gakeri
4,283 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled a SACCO unfairly fired an employee over poor performance because it had no proper appraisal records and skipped a fair hearing.

What this practically means

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Executive summary

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The Claimant, employed by the Respondent SACCO from January 2017 until 31st December 2023 and promoted through several positions to Business Development Officer, sued for unfair and unlawful termination on the ground of poor performance. She sought a declaration of unfair dismissal, general damages, salary for the unexpired contract, three months' salary in lieu of notice, seven years' leave allowance, a certificate of service, costs and interest. The Respondent maintained that the Claimant was appraised, given a chance to explain herself at a 7th December 2023 meeting, and that termination complied with the Employment Act. The court framed two issues: whether the termination was unfair and whether the reliefs were due. It found the Respondent failed to prove a valid and fair reason: the appraisal was undocumented, unsigned, without rating, conducted communally by a consultant, and ignored the Claimant's nearly four months' maternity leave. On procedure, the court held the appraisal meeting was not a disciplinary hearing; there was no invitation to a hearing, no minutes, and the Claimant was never invited to the Board meeting that decided her termination, contrary to Section 41 of the Employment Act. The court declared the termination unfair and awarded the equivalent of three months' gross salary (Kshs. 68,400) as compensation under Section 49(1)(c), payment for unutilized leave days for 2021-2023, and a certificate of service. General damages, salary for the unexpired contract, notice pay and the leave allowance claim were declined. The Claimant received 50% costs plus interest.

Key legal issues

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01

Whether the respondent had a valid and fair reason to terminate the Claimant for poor performance

Holding

No - the respondent failed to prove a valid and fair reason on a balance of probabilities

Reasoning

The respondent had some appraisal framework but it was undocumented, without rating, and the appraisal form was unsigned by both the Claimant and the supervisor. The communal appraisal by a consultant denied individual discussion. The Claimant's maternity leave of almost 4 months was not considered. The appraisal was inconclusive and the termination letter gave no score or rating.

p. 7
02

Whether the termination procedure complied with Section 41 of the Employment Act

Holding

No - Section 41 was not complied with; termination was procedurally unfair

Reasoning

There was no evidence of an invitation to a disciplinary hearing, no minutes of a hearing, and no evidence the Claimant attended a disciplinary meeting with a colleague of her choice. The 7th December 2023 meeting was a staff appraisal meeting, not a disciplinary meeting. The Appraisal Committee did not recommend termination, and the Claimant was not invited to the Board meeting of 19th December 2023 which decided to terminate her.

p. 7
03

Compensation for unfair termination under Section 49(1)(c) of the Employment Act

Holding

Equivalent of three (3) months' gross salary (Kshs. 68,400) awarded

Reasoning

The court considered seven years of diligent service, absence of warning or misconduct, that the Claimant did not appeal or seek reinstatement, and that she contributed to the termination through her performance notwithstanding the denial of an opportunity to explain.

p. 9

Legal principles established

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  • Fair termination requires both a valid and fair reason and a fair procedure.
  • An employer terminating for poor performance bears a high level of proof and must demonstrate an established performance evaluation system and measures taken to address poor performance.
  • Performance appraisals are individual in nature and cannot validly be conducted communally.
  • General damages are not awardable for unlawful termination of employment.

Court orders

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  1. 1.Declaration that termination of employment was unfair.
  2. 2.Equivalent of three (3) months gross salary Kshs. 68,400.
  3. 3.Unutilized leave days for 2021, 2022 and 2023.
  4. 4.Certificate of service.
  5. 5.50% of the costs of this suit.
  6. 6.Interest at Court rates from the date hereof till payment in full.

Authorities

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Legislation

  • Employment ActSection 41
  • Employment ActSection 45
  • Employment ActSection 49(1)(c)
  • Employment ActSection 51
  • Employment ActSection 17(1)
  • Employment ActSection 90
  • Employment ActSection 5(8)(c)
  • Employment ActSection 8
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B

Cases cited (12)

  • Edda Anyango Okumu V. AAR Insurance Kenya Ltd
    (2018) eKLR
  • Walter Ogal Anuro V. Teachers Service Commission
    (2013)
  • Naima Khamis V. Oxford University Press (EA) Ltd
    (2017) eKLR
  • Jane Samba Mukala v Ol Tukai Lodge Ltd
    (2013) eKLR
  • Pius Machafu Isiritu V Lavington Security Guards Ltd
    (2017) eKLR
  • Avril Elizabeth Home for the Mentally Handicapped Commission for Conciliation Mediation and Arbitration & others
    (2006) ILJ 1644 (LC)
  • Kenya Broad Casting Corporation V. Geofirey Wakio
    (2019) eKLR
  • Alfred Githinji V. Mumais Sugar Co. Ltd
    Civil Appeal No. 194 of 1991
  • Central Bank of Kenya V. Julius Nkonge
    (2002) eKLR
  • DK Njagi Marele V. Teachers Service Commission
    (2020) eKLR
  • Engineer Gachuri V. Energy Regulation Commission
    (2012) eKLR
  • Elizabeth Wakanyi Kibe V Telkom Kenya Ltd
    (2014) eKLR
Jurisdiction invoked
Original employment and labour relations jurisdiction (Employment Act; ELRC), claim for unfair termination filed 25th July 2024

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, "Owenga v First Community Savings & Credit Co-operative Society Ltd (Cause E061 of 2024) [2025] KEELRC 49 (KLR)", Case Analysis (2025). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/49/eng@2025-01-22

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