Waweru v Amoebax Insurance Agency Limited (Cause E009 of 2023) [2025] KEELRC 233 (KLR)
The bottom line
#A Kenyan court ruled that even probationary employees must be given fair hearings and employers must prove poor performance with actual performance records.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Respondent has proved that there was a justifiable reason to terminate the employment of the Claimant
- 2.Whether the Claimant was afforded procedural fairness prior to termination of her employment
- 3.Is the Claimant entitled to the reliefs sought?
Key legal issues
#Justifiable reason for termination (substantive fairness)
Termination was substantively unjustified; the employer failed to prove valid reasons for termination on grounds of poor performance
Under Sections 43(1) and 45(2)(a) and (b) of the Employment Act, the employer bears the burden of proving reasons for termination. The Respondent produced no measurable targets, key performance indicators, evaluation matrix or appraisal report, and no evidence of any evaluation of the Claimant's performance. Following National Bank of Kenya v Samuel Nguru Mutonya and Jane Samba Mukala, the effort leading to a poor-performance termination must be established, which was not done.
Procedural fairness under Sections 41 and 45(2)(c) of the Employment Act
Termination was procedurally unfair for want of compliance with Section 41
Section 41(1) requires notification of allegations and an opportunity to make representations in the presence of a fellow employee or union representative. The exemption for probationary employees under Section 42(1) was declared unconstitutional in Monica Munira Kibuchi in 2021, so it no longer applied to a November 2022 termination. There was no evidence of meetings convened, notice of contemplated termination, or an opportunity to defend herself.
Quantum of relief
Compensatory damages of three months' gross salary (Kshs 330,000) awarded; legal fees claim declined
The Court exercised discretion under the Employment Act to award compensatory damages proportionate to the considerably short length of the employment relationship and the circumstances of the termination. The specific claim for legal fees was not proved to the requisite standard.
Legal principles established
#- Where poor performance is the reason for termination, the employer bears a high level of proof and must show it had a policy or practice for measuring performance and measures to address poor performance
- Section 41 of the Employment Act is mandatory; termination without compliance is procedurally unfair
- Following the declaration of unconstitutionality of Section 42(1) in Monica Munira Kibuchi, employers must comply with Section 41 even for probationary employees
Court orders
#- 1.Compensatory damages in the sum of Kshs 330,000.00 being equivalent to three (3) months of her gross salary
- 2.Interest on the amount in (a) at court rates from the date of Judgment until payment in full
- 3.The Claimant shall also have the costs of the suit
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment claims (Employment Act); the claim was filed as a Memorandum of Claim
Relief refused
#Claim for Kshs 1,420,000 damages as prayed (awarded only Kshs 330,000)
Award limited to three months' gross salary considering the short length of employment and circumstances of termination
Claim for legal fees
Not proved to the requisite standard despite being a specific claim
Costs
The Claimant shall also have the costs of the suit.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Against this background, the Court enters Judgment in favour of the Claimant against the Respondent and she is awarded: a. Compensatory damages in the sum of Kshs 330,000.00 being equivalent to three (3) months of her gross salary.
Interest on the amount in (a) at court rates from the date of Judgment until payment in full.
The Claimant shall also have the costs of the suit.
the Respondent being the employer, had the onus to prove the reasons for the Claimant’s termination from employment and as it has failed to do so, it goes without saying that the said termination was not substantively justified hence unfair.
the provisions of Section 41 of the Act are mandatory hence it follows that anything short of that process is procedurally unfair.
in this case, the Claimant was terminated on 28th November 2022 hence it follows that as of then, the Respondent was enjoined to comply with the procedural requirements under Section 41 of the Act.
It will not sufice to just say that one has been terminated for poor performance as the efiort leading to this decision must be established
Issues in the judgment
#The judgment dates the termination letter as 28th November 2023 in paragraph 30, whereas the rest of the judgment (including the letter itself and paragraph 46) uses 28th November 2022
Quotation from the poor-performance standard refers to section 8 of the Employment Act, which does not correspond to the performance-evaluation provisions elsewhere cited (Sections 43 and 45); possibly intended as printed in the cited authority
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Waweru v Amoebax Insurance Agency Limited (Cause E009 of 2023) [2025] KEELRC 233 (KLR)", Case Analysis (2025). Not stated in the extract provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/233/eng@2025-01-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.