Kibor v Takaful Insurance (Cause E005 of 2021) [2025] KEELRC 171 (KLR)
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
#Key legal issues
#Procedural fairness under section 41 of the Employment Act
The termination was procedurally unfair because the Claimant was not given a hearing before termination; the hearing was only given on appeal.
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.
Substantive validity of the reason for termination (poor performance)
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.
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.
Remedies for procedural unfairness
Compensation of 3 months' salary (Kshs. 405,000) was awarded; notice pay was already paid and service pay was unavailable under section 35(6).
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.
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.Judgment is entered for the Claimant against the Respondent in the sum of Kshs. 405,000 as compensation for unfair termination
- 2.The Respondent shall pay the Claimant's costs
- 3.Interest shall accrue from the date of judgment
- 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.