Otieno v Absa Bank Kenya (Cause E065 of 2024) [2025] KEELRC 214 (KLR)
The bottom line
#A Kenyan court ruled an employee's dismissal for poor performance was valid but unfair because the employer gave her less time to respond than its own policy required.
What this practically means
#Executive summary
#Key legal issues
#Whether the reason for termination (poor performance) was valid and fair
The respondent demonstrated on a preponderance of probabilities that it had a valid and fair reason to terminate for under performance
The claimant's weighted performance scores of 72.9% (2020) and 71.7% against a target of at least 100% were not contested. She was placed on two Performance Accelerator Plans with support identified, and admitted she was never rated 'Good'. Her pregnancy/health explanation failed because she never disclosed it to the employer, did not attribute her underperformance to it in her responses to the notices to show cause or at the hearings, and the sick-off notes related to malaria and typhoid, not pregnancy. Applying Section 43(2) and the band of reasonable responses test, the employer genuinely believed the reason existed.
Whether the termination procedure was fair
Although most procedural safeguards were met, the respondent consistently gave the claimant fewer days to respond to notices and hearing invitations than its own policy prescribed, rendering the termination procedurally unfair
Section 41 of the Employment Act compliance is mandatory. The respondent's Disciplinary Capability and Grievance Policy and Procedure prescribed three working days for responses and at least three working days' notice of hearings, but the claimant was given only two working days for both notices to show cause and the capability hearing of 30th September 2021. The Court held that an organisation's policies bind both parties and the shortfall implicated the claimant's right to fair hearing and preparation, including time to procure a colleague. Failure to appeal did not cure this. Under Section 45(4) and (5) the employer did not act in accordance with justice and equity.
Whether the claimant was discriminated against on account of pregnancy
No: discrimination was neither pleaded nor proved; parties are bound by their pleadings and the burden shifts to the employer only upon a prima facie case
The memorandum of claim contained no plea of pregnancy-based discrimination, no particulars, and no prayer in damages for discrimination. Section 5(7) of the Employment Act places the burden of disproving discrimination on the employer, but only after the employee establishes a prima facie case by evidence. The claimant never informed the respondent of the pregnancy, attributed her performance issues to location change and client volume, and no sick-off note mentioned pregnancy. Her submission had no evidential foundation.
Legal principles established
#- An employer's own internal policies, manuals, guidelines and procedures bind both the employer and the employee, and non-compliance with prescribed timeframes implicates the employee's right to a fair hearing
- An employee has a duty to disclose conditions, such as pregnancy or illness, likely to impact on contractual obligations; an employer cannot be presumed to know an employee is expectant
- A valid and fair reason plus fair procedure are both required for a lawful termination; the employer need only prove reasons it genuinely believed to exist on a balance of probability
Court orders
#- 1.Declaration that termination of employment was procedurally unfair.
- 2.Equivalent of one (1) months salary Kshs.104,938,00.
- 3.Parties shall bear own costs.
- Jurisdiction invoked
- Original employment and labour relations jurisdiction under the Employment Act (first-instance claim for unfair termination)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Otieno v Absa Bank Kenya (Cause E065 of 2024) [2025] KEELRC 214 (KLR)", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/214/eng@2025-01-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.