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ELRCPartially AllowedMemorandum of Claim dated 18th April, 2016· [2025] KEELRC 1866 (KLR)

Owiti v Crescent Tech Limited (Cause 643 of 2016) [2025] KEELRC 1866 (KLR)

Employment and Labour Relations Court
26 June 2025
3,303 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled an accountant's summary dismissal was unlawful because his employer skipped a proper hearing and never gave him a chance to improve.

What this practically means

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Executive summary

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The Claimant, employed by the Respondent as a Senior Accountant from 19th November 2011, was summarily dismissed by letter dated 29th February 2016 on grounds of unsatisfactory performance. He challenged the dismissal as procedurally improper and substantively unjustified, seeking a declaration, February 2016 salary, compensation, notice pay, airtime allowance, a certificate of service, costs and interest. The Respondent maintained the dismissal was fair, citing prior warnings dated 4th November 2014 and 23rd December 2015, and asserted the Claimant's poor performance and workplace aggression. The court framed two issues: whether the dismissal was wrongful and whether the reliefs were due. On procedure, it found that the Claimant was never issued a show cause letter, invited to a disciplinary hearing, or heard, contrary to Section 41 of the Employment Act, and that a warning letter cannot substitute a show cause notice. On substance, the Respondent failed to prove fair and valid reasons: it had no itemized signed targets, no proof of appraisal, and never placed the Claimant on a Performance Improvement Plan despite his acknowledged performance challenges. The dismissal was held both procedurally and substantively wrongful and unlawful. The court awarded seven months' salary as compensation (Kshs.546,714/-), February 2016 salary (Kshs.78,102/-), one month's notice pay (Kshs.78,102/-), costs and interest, and ordered issuance of a certificate of service within 14 days. The airtime allowance claim was dismissed for want of evidence. Judgment delivered at Nairobi on 26th June 2025 by C. N. Baari, Judge.

Key legal issues

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01

Procedural fairness of the summary dismissal

Holding

The dismissal was procedurally unfair as the Claimant was not issued a show cause letter, invited to a disciplinary hearing, or heard contrary to Section 41 of the Employment Act.

Reasoning

Section 41 requires an explanation of grounds in a language the employee understands and an opportunity to be accompanied and heard. The warning letter of 23rd December 2015 did not set out specific allegations, did not require a response, and did not afford reasonable time. Following Postal Corporation of Kenya v Andrew K. Tanui and Hosea Akunga Ombwori v Bidco Oil Refineries, a warning letter cannot substitute a show cause notice. The Respondent admitted no hearing occurred.

p. 4
02

Substantive justification for the dismissal

Holding

The Respondent failed to establish fair and valid reasons for the dismissal; poor performance required corrective mechanisms including a PIP.

Reasoning

Under Sections 43, 45 and 47, the burden rests on the employer to justify poor performance as a reason. The Respondent had no itemized targets signed between the parties, no proof of appraisal, and did not controvert the Claimant's evidence that no Performance Improvement Plan was put in place. Following Jane Samba Mukala v Ol Tukai Lodge, an employer must show a policy or practice for measuring performance and efforts to support improvement, which were absent here.

p. 7
03

Entitlement to reliefs

Holding

Compensation of 7 months' salary, February 2016 salary, and one month's notice pay awarded; airtime allowance claim dismissed.

Reasoning

A finding of wrongful dismissal entitles the Claimant to compensation under Sections 49 and 50. Seven months was deemed sufficient given the Claimant's own performance challenges. Non-payment of February 2016 salary and absence of notice pay were not disputed. The airtime allowance claim failed for want of evidence.

p. 7

Legal principles established

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  • Even in summary dismissal, an employee is entitled to be informed of the charges and accorded an opportunity to make representations.
  • A warning letter does not constitute a valid notice to show cause.
  • An employer relying on poor performance must put in place corrective mechanisms such as a Performance Improvement Plan before disciplinary action.

Court orders

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  1. 1.A declaration that the Claimant's summary dismissal from the service of the Respondent is wrongful and unlawful
  2. 2.An award of Seven (7) months' salary as compensation for the wrongful dismissal in the sum of Kshs.546,714/-
  3. 3.Salary for February, 2016 at Kshs. 78,102/-
  4. 4.One Month's notice pay in the amount of Kshs. 78,102/-
  5. 5.Costs of the suit and interest from the date of judgment until payment in full
  6. 6.A Certificate of service to be issued within 14 days of this judgment

Authorities

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Legislation

  • Employment Act, 2007Section 41
  • Employment Act, 2007Section 42(1)
  • Employment Act, 2007Section 43(2)
  • Employment Act, 2007Sections 43, 45 and 47
  • Employment Act, 2007Section 45(2)
  • Employment Act, 2007Sections 49 and 50

Cases cited (4)

  • Postal Corporation of Kenya v Andrew K. Tanui
    [2019] eKLR
  • Hosea Akunga Ombwori v Bidco Oil Refineries Limited
    [2017] KEELRC 1599 (KLR)
  • Jane Simba Mukala v. Oltukai Lodge Limited
    (2013) eKLR
  • Jane Samba Mukala v Ol Tukai Lodge Limited Industrial Cause No. 823 of 2010
    (2010)LLR 255 (ICK)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (Sections 41, 42, 43, 45, 47, 49 and 50)

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, "Owiti v Crescent Tech Limited (Cause 643 of 2016) [2025] KEELRC 1866 (KLR)", Case Analysis (2025). Memorandum of Claim dated 18th April, 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1866/eng@2025-06-26

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