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ELRCPartially AllowedNot stated in the judgment text provided· [2025] KEELRC 1650 (KLR)

Hot Point Appliances Limited v Ogutu (Appeal E149 of 2024) [2025] KEELRC 1650 (KLR)

Employment and Labour Relations Court
5 June 2025
OKOcharo Kebira
3,463 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court ruled Samsung fairly dismissed a technician for poor performance and threw out a KShs 3.4 million award because the employee never claimed those damages.

What this practically means

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Executive summary

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This is a first appeal from a magistrates' court judgment of 27 June 2024 in which the Learned Trial Magistrate found that the Respondent's employment as a Brown Goods Technician was unfairly terminated and awarded him notice pay (KShs. 35,300), twelve months' gross salary (KShs. 423,600) as compensation under section 49(1)(c) of the Employment Act, and general damages for breach of contract (KShs. 3,000,000). The Appellant appealed, contending the termination for poor performance was substantively justified and procedurally fair. Ocharo Kebira J framed two issues: whether the trial magistrate erred in finding unfair termination, and whether the reliefs awarded were justified. The Court held the trial magistrate failed to consider the Appellant's pleadings and evidence, producing an unbalanced judgment. On procedure, the Court found the employer complied with section 41 of the Employment Act: show cause letter, disciplinary hearing attended with a colleague, and notification of the decision. On substance, applying the principles in Jane Samba Mukala, the Court found the employer had a performance measurement system, set specific daily targets, placed the Respondent on a Performance Improvement Plan with reduced targets, and acted on his continued failure. The plea of constructive dismissal was unproven and inconsistent with the claim of employer-initiated termination. The award of general damages was set aside as unpleaded. The appeal was allowed, the trial judgment set aside, and the suit dismissed with costs, with the Appellant bearing the costs of the appeal.

Key legal issues

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01

Procedural fairness of termination for poor performance

Holding

Termination complied with section 41 of the Employment Act; trial magistrate's contrary finding set aside

Reasoning

The Appellant proved the Respondent received a show cause letter, was invited to a disciplinary hearing, attended with a colleague of choice, and was informed of the decision. The Respondent admitted all of this under cross-examination. The trial magistrate disregarded this evidence without reasons, rendering her finding on procedural fairness erroneous.

p. 7
02

Substantive fairness - termination for poor performance

Holding

Appellant demonstrated a performance measurement system, specific targets, a Performance Improvement Plan with lowered targets, and disciplinary process; termination was substantively fair

Reasoning

Following the principles in Jane Samba Mukala, the employer showed a policy for measuring performance, tracked the Respondent's daily HE units, placed him on a PIP with reduced targets, and acted on his continued failure. The Respondent's claim that the PIP was coerced and unrealistic was not particularised or proven.

p. 7
03

Constructive dismissal

Holding

The plea of constructive dismissal was not established; it was inconsistent with the claim of termination at the employer's initiative

Reasoning

The Respondent pleaded constructive dismissal but his evidence was not geared towards establishing it, and the trial magistrate erred in making it the basis of her judgment. An employee cannot simultaneously claim unfair termination at the employer's initiative and constructive dismissal at his own initiative.

p. 6
04

Award of general damages not pleaded

Holding

The award of KShs. 3,000,000 general damages was set aside as it was never sought in the pleadings

Reasoning

Pleadings define the scope of relief; a party must seek relief in pleadings to allow the adversary to challenge or admit it. The Respondent's pleadings nowhere sought damages for breach of contract, so the trial magistrate's award had no foundation.

p. 7

Legal principles established

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  • A relief can only be granted if it was sought in the party's pleadings
  • Sections 41, 43 and 45 of the Employment Act are inapplicable in constructive dismissal cases
  • The duty to prove constructive dismissal lies with the employee
  • Where poor performance is the reason for termination, the employer bears a high level of proof and must show evaluation measures and efforts to address poor performance

Court orders

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  1. 1.The finding that the Respondent's employment was unfairly terminated is set aside
  2. 2.The award of KShs. 3,000,000 general damages for breach of contract is set aside
  3. 3.The compensatory award under section 49(1)(c) and the notice pay awarded by the trial court are set aside
  4. 4.The Appeal is allowed
  5. 5.The learned trial Magistrate's Judgment is set aside
  6. 6.The suit before the trial court is dismissed with costs
  7. 7.The Appellant shall bear the costs of this appeal
On appeal from
Magistrates' Court (ELRC subordinate court)
Not stated
Jurisdiction invoked
First appellate jurisdiction over appeals from the Learned Trial Magistrate in employment matters

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Hot Point Appliances Limited v Ogutu (Appeal E149 of 2024) [2025] KEELRC 1650 (KLR)", Case Analysis (2025). Not stated in the judgment text provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1650/eng@2025-06-05

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.