Ogero v CCI Kenya Limited (Appeal E008 of 2024) [2025] KEELRC 524 (KLR)
The bottom line
#A Kenyan court confirmed that firing an employee for poor performance is lawful if the employer put them on a performance plan and genuinely heard their side.
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 trial court erred in law and fact in finding that the respondent was justified in dismissing the appellant on account of poor performance
- 2.Whether the appellant was entitled to the reliefs sought
Key legal issues
#Whether the respondent was justified in terminating the appellant on account of poor performance
Yes - the respondent had valid and fair reasons; the appellant was issued a PIN, placed on PIP, given support, and admitted not achieving some KPIs
The appellant was issued a Performance Improvement Notice and placed on a PIP, which were reviewed at a hearing on 31st January 2022. The appellant acknowledged not achieving some KPIs and admitted receiving support from his superiors, never claiming anything hindered his performance. Under section 47(5) of the Employment Act the burden of proving unfair termination lies on the employee, which was not discharged.
Whether the termination procedure met the tenets of natural justice under section 41 of the Employment Act, given that no separate disciplinary hearing followed the PIP review
Yes - procedural fairness was met; the employee was heard on his poor performance on 31st January 2022 and given an opportunity to respond
Although the appellant argued that a PIP is distinct from a disciplinary process and that no show-cause hearing followed the PIP review, the court held that section 41 is satisfied where the employer shows the employee was heard on the allegations and could respond. The appellant was heard on 31st January 2022 before a panel, responded to the KPIs, and signed the minutes. Substantive and procedural fairness are both required, and both were present here.
Whether the appellant was entitled to the reliefs sought (damages, house allowance, service pay)
No - having found the termination fair and the appeal without merit, no reliefs were due
The reliefs were premised on a finding of unfair termination. Since the court found valid reason and proper procedure, the appeal failed and no reliefs were awarded.
Legal principles established
#- The duty of the first appellate court is to re-evaluate the evidence on both law and facts and come up with its own findings, while allowing for the trial court's advantage of seeing and hearing the witnesses
- Section 41 of the Employment Act is sufficiently adhered to if the employer illustrates that the employee was heard on the allegations and given a reasonable opportunity to respond
- Termination for poor performance is a valid and fair reason, but requires both substantive and procedural fairness
Court orders
#- 1.The judgment of the trial court is upheld
- 2.The appeal is dismissed with costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Principal Magistrate's Court
- Not stated
- Jurisdiction invoked
- First appellate jurisdiction of the Employment and Labour Relations Court over the subordinate court judgment (appeals division)
Relief refused
#Setting aside of the trial court's judgment and entry of judgment in favour of the plaintiff as prayed in the Statement of Claim dated 21st November 2022
The court found the appeal without merit, holding the respondent had valid reasons and followed proper procedure in the termination
Damages for unlawful and unfair termination, house allowance and service pay
Claim failed as the termination was found fair both substantively and procedurally
Costs
Appeal dismissed with costs (to the respondent)
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.
It is now settled law that the duty of the first appellate court is to re-evaluate the evidence in the subordinate court both on points of law and facts and come up with its own findings and conclusions
The Court takes the view that section 41 of the Employment Act is suficiently adhered to if the employer can illustrate that an employee was heard on allegations at hand and provided a reasonable opportunity to respond to them.
In conclusion this Court upholds the judgment of the trial court and finds the appeal without merit and hereby dismisses the same with costs.
It is so ordered.
Issues in the judgment
#The Alex Wainaina Mbugua v Kenya Airways Limited case is cited twice with different citations ([2017] KEELRC 496 and [2017] KEELRC 469), one of which appears to be an error
The names of the parties to the appeal are not stated anywhere in the judgment; only their roles appear
The respondent's submissions date the hearing of 31st January 2023 while the court and appellant's submissions state 31st January 2022
The case title and case number of the appeal are not stated in the judgment text
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ogero v CCI Kenya Limited (Appeal E008 of 2024) [2025] KEELRC 524 (KLR)", Case Analysis (2025). Not stated in the judgment (Memorandum of Appeal dated 11th January 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/524/eng@2025-02-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.