Kimai v Seven Four Eight Air Services Ltd (Cause 665, 664, 667, 666, 699 & 700 of 2018 (Consolidated)) [2025] KEELRC 1554 (KLR)
The bottom line
#An aviation employer that sacked staff for poor performance without appraisals, warnings, or a hearing was ordered to pay each worker seven months' salary.
What this practically means
#Executive summary
#Key legal issues
#Whether the terminations for poor performance were procedurally fair under Section 41 of the Employment Act
The terminations were procedurally unfair; the Claimants were neither issued notices to show cause nor given an opportunity to defend the allegations
The Respondent's own witnesses (the Managing Director and the HR Manager) admitted in cross-examination that no appraisals were filed, no warning letters or notices to show cause were issued, and the Claimants were never heard or given a chance to improve. Section 41 requires the employer to explain the reasons for termination on grounds of poor performance and allow the employee to be heard. The Respondent plainly failed to adhere to these tenets of fair process.
Whether there were valid grounds for termination
No valid grounds were established; the terminations were substantively unjustified
The Respondent asserted poor performance but produced no appraisals, no set targets, and no evidence that expected standards were communicated. The Court of Appeal's guidance in Jane Samba Mukala requires the employer to show a policy or practice for measuring performance. The Claimants were summarily dismissed the same day, in violation of Articles 41 and 47 of the Constitution and Sections 41, 43, 45 and 47(5) of the Employment Act.
Whether the discharge vouchers barred the claims
The discharge vouchers did not bar the claims for compensation for unfair termination
Following Thomas De La Rue, a discharge voucher cannot absolve an employer from statutory obligation where it was not freely and willingly executed. The Respondent's witnesses confirmed the drafts were not shared with the Claimants and that the absence of the Claimants' witnesses' signatures was an oversight, corroborating that the vouchers were not voluntarily executed.
Quantum of compensation for unfair termination
Seven months' salary awarded as compensation, taking into account the Claimants' comparable alternative employment
Guided by Section 49 of the Employment Act and the Court of Appeal's statement in Nation Media Group v Munene that compensation for unfair termination is distinct from terminal dues, the Court considered the Claimants' swift re-employment in comparable jobs and deemed seven months' salary sufficient, rather than the 12 months claimed.
Legal principles established
#- Poor performance is a valid ground for termination only if the employer had a structured performance system, communicated expected standards, and gave the employee sufficient opportunity to improve
- The burden of proving that poor performance was a fair reason for dismissal rests on the employer
- A discharge voucher per se cannot absolve an employer from statutory obligation nor preclude the court from enquiring into the fairness of a termination
Court orders
#- 1.A declaration that the Claimants were unfairly terminated
- 2.That the Respondent pays each of the Claimants in Causes Nos. 665, 664, 667, 666, 699 & 700 of 2018 seven (7) months' salary as compensation for the unfair termination
- 3.The awards are subject to statutory deductions
- 4.Costs shall be borne by the Respondent
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (Sections 41, 43, 45, 47(5), 49) and Articles 41 and 47 of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kimai v Seven Four Eight Air Services Ltd (Cause 665, 664, 667, 666, 699 & 700 of 2018 (Consolidated)) [2025] KEELRC 1554 (KLR)", Case Analysis (2025). Employment Cause No. 665 of 2018 (lead file; consolidated with Causes Nos. 664, 667, 666, 699 & 700 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1554/eng@2025-05-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.