Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCPartially AllowedEmployment Cause (Statement of Claim dated 18th May, 2021, filed 5th November, 2021)· [2025] KEELRC 171 (KLR)

Kibor v Takaful Insurance (Cause E005 of 2021) [2025] KEELRC 171 (KLR)

Employment and Labour Relations Court
30 January 2025
4,710 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~19 min to read original · ~4 min brief

The bottom line

#

A Kenyan court ruled that even a valid reason for firing an employee is not enough — employers must hold a hearing before termination, not just on appeal.

What this practically means

#

Executive summary

#
The Claimant, employed by the Respondent insurance company as administrator/branch manager of its Kitale branch from 30th July 2018 until termination on 2nd December 2020, sued for a declaration that her termination was unfair, one month's pay in lieu of notice, 12 months' compensation under section 49(1)(c) of the Employment Act, service pay/gratuity, a certificate of service, costs and interest. The Respondent admitted the employment but justified the termination on grounds of persistent poor performance of the Kitale branch, evidenced by warning letters of 18th April and 13th June 2019, a 'D' performance rating, and branch performance reports showing Kitale ranked lowest nationally. The court framed two issues: whether the termination was substantively and procedurally valid, and the remedies. It found the reason for termination - poor performance - was valid: the Respondent had a performance measurement system, issued performance letters, placed the Claimant on a Performance Improvement Plan, and performance was regularly reviewed and discussed with the Claimant, consistent with National Bank of Kenya v Samuel Nguru Mutonya. However, the Claimant was terminated first and only heard on appeal, contrary to section 41 of the Employment Act, rendering the termination procedurally unfair. On remedies, notice pay had already been paid and was refused; service pay was refused under section 35(6) as the Claimant was an NSSF member; and compensation was fixed at 3 months' salary (Kshs. 405,000), taking into account the valid reason, substantial procedural compliance, short service and the Covid-19 pandemic. Judgment was entered for the Claimant for Kshs. 405,000 with costs and interest from the date of judgment.

Key legal issues

#
01

Procedural fairness under section 41 of the Employment Act

Holding

The termination was procedurally unfair because the Claimant was not given a hearing before termination; the hearing was only given on appeal.

Reasoning

It was common ground that the Claimant was terminated first and then heard on appeal before a panel of officers from the Respondent's head office. The court held that although section 41 contemplates notification and hearing before termination, the Respondent only extended the hearing at the appeal stage. Substantive compliance existed but the pre-termination hearing requirement was not met, making the termination procedurally unfair despite a valid reason.

p. 11
02

Substantive validity of the reason for termination (poor performance)

Holding

The reason for termination - poor performance - was valid; the Respondent had a performance measurement system, issued warning letters, and placed the Claimant on a performance improvement plan.

Reasoning

The Claimant was issued with letters dated 18th April and 13th June 2019 on her branch's poor performance, was put on a Performance Improvement Plan with monthly monitoring, and admitted that performance reports were produced and shared weekly, monthly, quarterly and yearly, and that she discussed her performance with her supervisor. The court was satisfied this met the standards set in National Bank of Kenya v Samuel Nguru Mutonya.

p. 11
03

Remedies for procedural unfairness

Holding

Compensation of 3 months' salary (Kshs. 405,000) was awarded; notice pay was already paid and service pay was unavailable under section 35(6).

Reasoning

Taking into account the valid reason for termination, the substantial compliance with procedure, the length of service of about two and a half years, and the fact that the termination occurred during the Covid-19 pandemic when performance was compromised by movement restrictions, the court considered 3 months' salary reasonable compensation. Notice pay had been paid and service pay was barred because the Claimant was an NSSF member.

p. 11

Legal principles established

#
  • Where an employer terminates first and only offers a hearing on appeal, the hearing before termination contemplated by section 41 of the Employment Act is not complied with, rendering the termination procedurally unfair even where the reason for termination is valid.
  • An employer who issues performance warning letters, places an employee on a performance improvement plan, and regularly reviews performance with the employee complies with the procedure required before termination on grounds of poor performance.

Court orders

#
  1. 1.Judgment is entered for the Claimant against the Respondent in the sum of Kshs. 405,000 as compensation for unfair termination
  2. 2.The Respondent shall pay the Claimant's costs
  3. 3.Interest shall accrue from the date of judgment

Authorities

#

Legislation

  • Employment Act, 2007Section 35(6)
  • Employment Act, 2007Section 36
  • Employment Act, 2007Section 41
  • Employment Act, 2007Section 43
  • Employment Act, 2007Section 44(4)
  • Employment Act, 2007Section 45
  • Employment Act, 2007Section 49(1)(c)
  • Employment Act, 2007Section 51
  • Legal Notice No. 112 of 2017

Cases cited (3)

  • National Bank of Kenya v Samuel Nguru Mutonya
    [2019] eKLR
  • Jane Samba Mukala v Ol Tukai Lodge Limited, Industrial Cause Number 823 of 2010
    (2010) LLR 255 (ICK)
  • CMC Aviation Limited v Mohammed Noor
    [2015] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (sections 35, 36, 41, 43, 45, 49 and 51)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Kibor v Takaful Insurance (Cause E005 of 2021) [2025] KEELRC 171 (KLR)", Case Analysis (2025). Employment Cause (Statement of Claim dated 18th May, 2021, filed 5th November, 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/171/eng@2025-01-30

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