Inginda v Cosmos Pharmaceutical Limited (Cause E191 of 2023) [2025] KEELRC 2317 (KLR)
The bottom line
#A Kenyan employee who signed a 'without prejudice' discharge certificate still won a Kshs 1.99 million unfair termination award because his employer could not prove poor performance.
What this practically means
#Executive summary
#Key legal issues
#Effect of the discharge certificate endorsed 'without prejudice'
The endorsement preserved the Claimant's rights; the Respondent was not absolved from liability.
Relying on Black's Law Dictionary, the Court held 'without prejudice' means without loss of any rights. Applying that definition, the Claimant reserved his right to bring a claim despite executing the discharge certificate, so the certificate did not bar the suit or waive his right to litigate the termination.
Justifiable reason for termination
The Respondent failed to prove a justified reason; termination was unjustified.
Under Sections 43(1) and 45(2)(a) and (b) of the Employment Act, the employer bore the burden of proving valid, fair reasons related to performance. There was no evidence of any performance evaluation against set targets, no adherence to the Performance Management Policy or Performance Improvement Plan, no reminders exhibited, and the company's own Regional Marketing Manager acknowledged a declining market. The allegations were unsupported.
Procedural fairness
Termination was procedurally unfair under Section 41 of the Employment Act.
There was no evidence the Claimant was put on notice of specified allegations, given sufficient notice of the meeting of 1st November 2022, allowed to prepare including obtaining evidence, or informed of his right to be accompanied by a fellow employee. The requirements of a fair hearing under Section 41(1) were therefore not met.
Reliefs
Six months' gross salary as compensatory damages and accrued leave awarded; service pay and bonus declined.
Compensatory damages of six months' gross salary were awarded considering the length of employment and circumstances of termination. The leave claim succeeded because the Respondent failed to produce leave records under Section 74(1)(f). Service pay was excluded under Section 35(6) due to NSSF contributions, and bonus was discretionary and unproved.
Legal principles established
#- An employer must prove the reasons for termination; failure to do so renders the termination unfair (Section 43(1) Employment Act).
- A termination based on poor performance requires objective assessment against set targets; the employer must adhere to its own Performance Management Policy.
- Section 41(1) of the Employment Act requires notice of allegations, an opportunity to prepare and be accompanied before termination for poor performance.
- Endorsing 'without prejudice' on a discharge certificate preserves the employee's right to sue; it does not waive the right to institute legal proceedings.
Court orders
#- 1.A declaration that the termination of the Claimant from employment was unfair and unlawful
- 2.Award of Kshs 1,932,000.00 being compensatory damages equivalent to six (6) months of his last gross salary
- 3.Award of Kshs 64,400.00 being payment for accrued leave days for a period of six (6) days
- 4.Total award of Kshs 1,996,400.00
- 5.Interest on the amount in (d) at court rates from the date of Judgment until payment in full
- 6.The Claimant shall also have the costs of the suit
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act (Sections 41, 43, 45, 35, 74) in a first-instance unfair termination claim
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Inginda v Cosmos Pharmaceutical Limited (Cause E191 of 2023) [2025] KEELRC 2317 (KLR)", Case Analysis (2025). ELRC Cause (Nairobi) — number not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2317/eng@2025-07-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.