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
#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
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment claims (Employment Act); the claim was filed as a Memorandum of Claim
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.