AWG & another v Rsm Eastern Africa LLP & another (Cause E439 & E428 of 2020 (Consolidated)) [2025] KEELRC 1336 (KLR)
The bottom line
#A Kenyan court upheld two terminations for poor performance, ruling that contractual notice pay can substitute formal dismissal procedure and that unsupported discrimination claims fail.
What this practically means
#Executive summary
#Key legal issues
#Whether poor performance was established as reason for the 1st claimant's termination
Yes - the claimant's own testimony and exhibits confirmed valid complaints, low evaluation scores and identified areas of improvement
The court relied on the claimant's admission of complaints, her low scores (e.g. 38% on one job), failure to undertake e-learns, and signed end-year reviews identifying areas for improvement. It found the reason existed at termination per section 43 of the Employment Act, 2007, satisfying the employer's evidentiary burden.
Whether the procedure of termination was fair where the employer invoked the contractual notice clause instead of section 41 dismissal procedure
Yes - invoking the contractual three months' notice clause constituted a fair procedure and a soft landing
The court held that since the claimants knew of their poor performance yet failed to improve, the employer could properly opt for contractual termination with notice or pay in lieu rather than summary dismissal under section 41. The full notice pay having been made, both procedure and substance were fair under section 45.
Whether pregnancy-based discrimination was proved by the 1st claimant
No - no evidence linked the termination to her pregnancy
The claimant offered no evidence that the termination was on account of her pregnancy. The employer's evidence that the termination was performance-based, and the claimant's own admissions of performance concerns, defeated the discrimination claim, which failed with the related compensation claim.
Whether the 2nd claimant proved sexual harassment against the 2nd respondent
No - the allegation was an afterthought and unsupported by evidence
The claimant admitted her demand letter made no mention of sexual harassment, no evidence of reporting to the employer was produced, and screenshots had been expunged. She also did not raise the issue at the 29.04.2020 meeting. The court concluded the allegations were misconceived and manufactured to explain the termination.
Legal principles established
#- Where an employer terminates a contract under an agreed contractual termination clause (notice or pay in lieu) rather than dismissing for poor performance, the procedure may be fair even where statutory dismissal procedure under section 41 is not invoked
- Termination for poor performance requires the employer to establish that valid performance concerns existed as at the time of termination under section 43 of the Employment Act
- Allegations of sexual harassment are grave and must be strictly proved
Court orders
#- 1.Judgment entered for the respondents
- 2.Dismissal of the two suits filed by the 1st and 2nd claimants
- 3.No orders on costs
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (sections 41, 43, 45, 49(4)) and the Constitution of Kenya, 2010 (Articles 27, 41) as pleaded by the parties
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "AWG & another v Rsm Eastern Africa LLP & another (Cause E439 & E428 of 2020 (Consolidated)) [2025] KEELRC 1336 (KLR)", Case Analysis (2025). Employment and Labour Relations Court at Nairobi (causes consolidated; Statement of Claim dated 27.08.2020 and Statement of Claim dated 26.08.2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1336/eng@2025-05-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.