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ELRCPartially AllowedNot stated in the judgment (Statement of Claim dated 23rd August 2019)· [2025] KEELRC 139 (KLR)

Dayo v Ecart Services Kenya Limited (Cause 553 of 2019) [2025] KEELRC 139 (KLR)

Employment and Labour Relations Court
30 January 2025
2,402 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Jumia Kenya must pay a former HR Head Kshs. 3.3 million because it fired her for poor performance without a performance improvement plan.

What this practically means

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Executive summary

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The Claimant, formerly Head of Human Resources of Jumia Kenya, sued after her employment was terminated on 24th April 2018 on the grounds of poor performance and breach of confidentiality, following her mistaken transmission of a confidential bonus file to the CEO. She claimed 12 months' salary in compensation, exemplary/aggravated damages, and damages for violation of fundamental rights, contending the disciplinary process was a pre-determined charade and that she was never given an opportunity to improve. The Respondent defended the dismissal as justifiable and procedural. The court framed two issues: whether the dismissal was lawful and fair, and whether the Claimant was entitled to the remedies sought. Holding that the procedure for poor performance is distinct from that for misconduct, Ndolo J found the Respondent failed to place the Claimant on the performance improvement plan required by its own Employee Handbook, and that the disciplinary hearing conflated performance and confidentiality charges. The Respondent's restriction of the Claimant's access to her email, and internal communications indicating plans to replace her, compromised her right to prepare a defence and confirmed the decision was pre-determined. The termination was held substantively and procedurally unfair under sections 41 and 12 of the Employment Act. The court awarded six months' salary (Kshs. 3,300,000), subject to statutory deductions and attracting interest at court rates from the date of judgment, but disallowed the claims for general and exemplary/aggravated damages. The Claimant was awarded the costs of the case. Judgment was delivered virtually at Nairobi on 30th January 2025.

Key legal issues

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01

Whether the termination on grounds of poor performance and breach of confidentiality was substantively and procedurally fair

Holding

The termination was substantively and procedurally unfair; the employer failed to follow its own performance improvement procedures and conflated the distinct charges of poor performance and misconduct.

Reasoning

The disciplinary procedure for poor performance is distinct from that for misconduct. Although the Employee Handbook required a performance improvement plan before termination, the Respondent's own witness admitted the Claimant was not placed on one. Her appraisals ranged from outstanding to average to warning, showing partial improvement. The suspension related only to breach of confidentiality, yet the disciplinary hearing conflated performance and confidentiality issues, denying the Claimant a clear case to answer.

p. 6
02

Whether the Claimant was afforded a fair hearing in preparation of her defence to the show cause letter

Holding

The Respondent's denial and restriction of the Claimant's access to her email inbox compromised her right to prepare a credible defence.

Reasoning

The Claimant requested access to her email to respond to the show cause letter. The IT Manager refused, stating she was leaving the company, and when access was eventually granted she was given only three hours. An internal communication indicated plans to replace her. Together, this established that the decision to terminate was pre-determined and that the employee was not given adequate means to defend herself.

p. 5
03

Whether the dismissal was pre-determined

Holding

Communications from senior managers confirmed the decision to terminate had been made before the disciplinary process concluded.

Reasoning

The IT Manager's email of 28th March 2018 stated the Claimant was leaving Jumia before the disciplinary hearing, and an internal communication of 4th April 2018 indicated plans to replace her were underway. These communications confirmed the Claimant's assertion that the outcome was pre-determined, rendering the process a charade rather than a genuine disciplinary inquiry.

p. 5
04

Remedies for unlawful and unfair termination

Holding

Six months' salary awarded as compensation; general and exemplary/aggravated damages disallowed.

Reasoning

In exercising discretion on compensation under the Employment Act, the court considered the Claimant's short length of service (approximately one year), the Respondent's mishandling of her case, and her slim chances of securing alternative employment of equal stature. The heads claiming general and aggravated damages and damages for violation of fundamental rights lacked a foundation and failed.

p. 6

Legal principles established

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  • The proper procedure once poor performance of an employee is noted is to point out the shortcomings to the employee and give the employee an opportunity to improve over a reasonable length of time.
  • An employer alleging poor performance must demonstrate an objective performance evaluation system as a benchmark for assessing performance and providing support for improvement.
  • For an employee to respond to allegations, the charges must be clear and the employee afforded sufficient time and documents to prepare a defence.

Court orders

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  1. 1.Judgment entered in favour of the Claimant in the sum of Kshs. 3,300,000 being 6 months' salary in compensation for unlawful and unfair termination of employment
  2. 2.The award is subject to statutory deductions and will attract interest at court rates from the date of judgment until payment in full
  3. 3.The Claimant awarded the costs of the case
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act and the Employment and Labour Relations Court Act (employment dispute)

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, "Dayo v Ecart Services Kenya Limited (Cause 553 of 2019) [2025] KEELRC 139 (KLR)", Case Analysis (2025). Not stated in the judgment (Statement of Claim dated 23rd August 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/139/eng@2025-01-30

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