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ELRCPartially AllowedCause No E726 of 2023· [2025] KEELRC 2520 (KLR)

Mathenge v Pathfinder International (Cause E726 of 2023) [2025] KEELRC 2520 (KLR)

Employment and Labour Relations Court
25 September 2025
2,599 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 that firing an employee for poor performance without proper appraisal meetings and a fair hearing was unlawful, awarding over Kshs. 3.3 million.

What this practically means

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Executive summary

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The Claimant, employed by the Respondent as a Global Subaward Specialist from 8th February 2022 on a two-year contract, was confirmed after probation, received a merit pay increment and promotion. His supervisor changed from Megan Quinn Mueller to Jessica Hemmer in October 2022, after which he complained of racial discrimination, harassment and micromanagement. He was placed on a Performance Improvement Plan in April 2023, set to end on 19th June 2023. On 15th June 2023 he was presented with an unsigned Mutual Separation Agreement, and his employment ended on 19th June 2023 without a formal termination letter. The Claimant sued for unlawful termination or constructive dismissal. The Respondent admitted in its Memorandum of Response that the decision to terminate was triggered by incompatibility and loss of trust. The court framed two issues: whether termination was unlawful and whether remedies were due. It held that termination was on account of poor performance, requiring compliance with Section 41 of the Employment Act. Relying on Jane Samba Mukala v Ol Tukai Lodge and Maghanga Newton Raphael v Panal Freighters, the court found no performance review meetings during the PIP, no clear key result areas, and no capability hearing. It held the termination substantively and procedurally unfair. The court awarded four months' salary in compensation, one month's salary in lieu of notice, and leave pay, totaling Kshs. 3,336,666 with interest, a certificate of service, and costs. Claims for the remainder of the contract, salary difference, gratuity and general damages were declined for lack of evidence.

Key legal issues

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01

Whether termination of the Claimant's employment was substantively and procedurally fair

Holding

The Respondent admitted termination on account of poor performance; there was no valid reason and no due process; termination was substantively and procedurally unfair

Reasoning

The Respondent's Memorandum of Response expressly admitted that the Claimant's services were terminated on account of poor performance. The court found no valid reason for the termination and held that the procedure under Section 41 of the Employment Act was not followed: no performance review meetings during the PIP, no clear key result areas for appraisal, and no capability hearing. The supervisor's undefined dissatisfaction and disregard of the Claimant's harassment complaints compounded the unfairness.

p. 6
02

What remedies flow from the unfair termination

Holding

Four months' salary in compensation, one month's salary in lieu of notice, and leave pay awarded; other claims declined

Reasoning

In assessing compensation the court considered the Claimant's length of service, the absence of contribution to the termination, slim re-employment prospects, and the Respondent's unlawful conduct including failure to follow through the PIP and failure to issue a formal termination letter. Leave pay was awarded in the absence of contrary leave records. Claims for the remainder of the contract, salary difference, gratuity and general damages were unsupported by evidence.

p. 6

Legal principles established

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  • Termination for poor performance must comply with Section 41 of the Employment Act, entailing explanation of reasons and hearing of the employee's representations, and the employer bears a high level of proof regarding performance measurement systems
  • The procedure for poor-performance termination requires the employee to be made aware of shortcomings, allowed reasonable time to improve, and any appraisal must have the employee's input

Court orders

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  1. 1.4 months' salary in compensation of Kshs. 2,200,000
  2. 2.1 month's salary in lieu of notice of Kshs. 550,000
  3. 3.Leave pay for 1 year of Kshs. 458,333
  4. 4.Prorata leave pay for 4 months of Kshs. 128,333
  5. 5.Total award of Kshs. 3,336,666 with interest at court rates from the date of judgment until payment in full
  6. 6.Certificate of service to be issued to the Claimant
  7. 7.Costs of the case to the Claimant

Authorities

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Legislation

  • Employment ActSection 41
  • Employment ActSection 42(1)
  • Employment ActSection 44(3) and (4)

Cases cited (2)

  • Jane Samba Mukala v Ol Tukai Lodge Limited
    [2013] eKLR
  • Maghanga Newton Raphael v Panal Freighters Limited
    [2021] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act (first-instance employment dispute)

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, "Mathenge v Pathfinder International (Cause E726 of 2023) [2025] KEELRC 2520 (KLR)", Case Analysis (2025). Cause No E726 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2520/eng@2025-09-25

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