Githinji v Topcare Lands Investment Limited (Cause E844 of 2022) [2025] KEELRC 2295 (KLR)
The bottom line
#Kenya's Employment Court ruled that an employee fired by text message over 'poor performance' was unlawfully terminated, winning Kshs. 800,000 plus costs.
What this practically means
#Executive summary
#Key legal issues
#Existence of an employment relationship
An employment relationship existed notwithstanding the Respondent's plea of probation, because the Claimant was paid Kshs. 200,000 for January 2022, held the definite role of General Manager, and no written probationary contract existed.
Section 2 of the Employment Act defines a probationary contract as one in writing and expressly stating it is probationary. The Claimant said she was employed orally and the Respondent led no contrary evidence. The payment of Kshs. 200,000 was unexplained by the Respondent, and the position of General Manager was not peripheral. Following Obonyo v Britam, control, integration and remuneration pointed to employment. The court also disregarded the concept of sales commission raised for the first time in submissions, as parties are bound by their pleadings.
Lawfulness of termination
The termination was unlawful: no performance review or capability hearing preceded it, and an employee alleged to be performing poorly must be notified and given time to improve.
The employment was ended by an SMS on 6th February 2022 advising the Claimant not to report until further notice. The CEO never contacted her afterwards. Applying KSRITAWU v Stanley Kinyanjui, poor performance requires pointing out shortcomings and a reasonable 2-3 month improvement period; per Jane Samba Mkala, an employer must show an objective performance evaluation system. The Respondent conducted neither a performance review nor a capability hearing.
Quantum of remedies
Three months' salary in compensation and one month's notice pay awarded; unpaid salaries and special damages disallowed as unproved.
In exercising discretion on compensation the court weighed the Claimant's short stint of about one month in employment against the Respondent's unlawful and premature ending of the relationship, its failure to issue a formal contract, and its failure to issue a termination letter. The salary claims beyond notice and compensation and the claim for special damages failed for want of proof.
Legal principles established
#- A probationary contract must be in writing and expressly state that it is for a probationary period; an undocumented employment cannot be recast as probationary.
- An employer alleging poor performance must point out the shortcomings and give the employee a reasonable opportunity (2-3 months) to improve.
- Parties are bound by their pleadings; matters not pleaded cannot be introduced in final submissions.
Court orders
#- 1.Three months' salary in compensation for unlawful termination (Kshs. 600,000)
- 2.One month's salary in lieu of notice (Kshs. 200,000)
- 3.Total judgment of Kshs. 800,000 with interest at court rates from the date of judgment until payment in full
- 4.The Claimant to have the costs of the case
- Jurisdiction invoked
- Jurisdiction under the Employment Act over an employment relationship 'capable of enforcement by this Court'
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Githinji v Topcare Lands Investment Limited (Cause E844 of 2022) [2025] KEELRC 2295 (KLR)", Case Analysis (2025). Not stated in the judgment (Statement of Claim dated 18th November 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2295/eng@2025-07-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.