Mwaura v Safaricom Limited (Cause E496 of 2021) [2025] KEELRC 2431 (KLR)
The bottom line
#Kenya's Employment Court upheld Safaricom's dismissal of a senior manager for poor performance, awarding him only access to his accrued pension.
What this practically means
#Executive summary
#Key legal issues
#Whether the termination for poor performance was for valid reasons
Yes. The Respondent set agreed targets, monitored performance, placed the Claimant on two PIPs with support, and he scored 60% against an agreed 100% target, sufficient to found a genuine belief in poor performance on a balance of probabilities.
The court traced the evidence: objectives were set for 2019/2020, the Claimant was rated a 'Mover', placed on a first PIP which was extended with his consent, then scored 60% on the second PIP against an agreed 100% pass mark. The court held the self-appraisal of 132% invalid because it lacked line manager validation. The data in the Respondent's possession was sufficient to stir genuine belief under section 43 of the Employment Act.
Whether the termination followed fair procedure
Yes. The Claimant was consulted on the PIP extension and targets, given support, subjected to a performance hearing, and had a right of appeal which he exercised.
The court found the Claimant participated in setting the second PIP objectives via email trail, was given more than three months to deliver, was given additional staff support, attended a performance hearing on 9th March 2021, and lodged an appeal which was dismissed. The court held the Respondent substantially adhered to fair procedure requirements.
Whether the PIP timelines under the Performance Management Policy were violated
No. The policy's three-month PIP period was framed as 'usual' and flexible, and the second PIP in fact ran to February 2021, giving the Claimant more than three months.
The court construed the policy purposively, holding that 'usually' does not fix the period in stone. The appraisal data showed the second PIP ran from early November 2020 to February 2021, exceeding three months. The policy also contemplated further action plans where targets were not met, validating the extension agreed with the Claimant.
Legal principles established
#- Before terminating for poor performance, an employer must have agreed deliverables, a mechanism for measuring performance, evidence the employee did not meet targets, and evidence the employee was offered a chance to improve without success.
- An employee's self-assessment is not conclusive proof of performance; it must be validated by the line manager or supervisor.
- Under section 43 of the Employment Act, an employer need only genuinely believe on sufficient grounds that reasons for termination exist.
- A PIP period of 'usually' three months under a performance policy is not cast in stone and may be expanded or reduced to accommodate the circumstances of individual cases.
- A party cannot raise before the court a ground of challenge that was never raised in the internal appeal against the termination decision.
Court orders
#- 1.Declaration that the Claimant's contract of service was lawfully terminated
- 2.The Claimant is permitted to access his pension benefits which had accrued and crystalized as at 17th March 2021 in accordance with the regulations governing the pension scheme
- 3.The rest of the claim is dismissed
- 4.The claim for 96 instalments of pension, being futuristic in nature, is declined
- 5.Each party to bear own costs of the suit
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment disputes (Employment Act; ELRC Procedure Rules referenced)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mwaura v Safaricom Limited (Cause E496 of 2021) [2025] KEELRC 2431 (KLR)", Case Analysis (2025). Cause No E496 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2431/eng@2025-09-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.