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Case Brief · caselaw.co.ke
ELRCPartially AllowedCause No. (not stated in judgment; Memorandum of Claim dated 12th July 2019)· [2025] KEELRC 2751 (KLR)

Kibira v Twiga Foods Limited (Cause 463 of 2019) [2025] KEELRC 2751 (KLR)

Employment and Labour Relations Court
9 October 2025
LNLinnet Ndolo
1,641 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ruled Twiga Foods unfairly sacked a sales rep and must pay over Kshs. 1 million plus costs.

What this practically means

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Executive summary

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The Claimant, employed by the Respondent as a Sales Representative and earning Kshs. 100,000 monthly, was terminated on 13th December 2018 on account of 'performance below the set and agreed expectations'. He claimed the termination was without valid reason or due process, and sought a declaration of unfair termination, 12 months' salary compensation, refund of Kshs. 426,000 in deductions, overtime compensation, balance of notice pay, costs and interest. The Respondent denied unfairness, asserting meetings on performance, a clear job description, and that deductions related to unearned bonus. The court framed two issues: lawfulness and fairness of the termination, and entitlement to remedies. It distinguished disciplinary procedures for poor performance from misconduct, citing the KSRITAWU decision requiring that shortcomings be pointed out and improvement allowed over a reasonable period, and Mbaru J's holding in Jane Samba Mkala requiring an objective performance evaluation system. The Respondent's witness could not prove poor performance and the job description was not availed. The court also found the Kshs. 426,000 surcharge for unbanked cash was unilateral, undocumented, and amounted to double jeopardy when coupled with termination on the same allegations. It held the termination substantively and procedurally unfair, awarded six months' salary (Kshs. 600,000) plus the irregular surcharge (Kshs. 426,000), totalling Kshs. 1,026,000, subject to statutory deductions with interest at court rates from judgment. Claims for notice pay balance and overtime failed; the Claimant got costs.

Key legal issues

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01

Whether termination on grounds of poor performance was substantively and procedurally fair

Holding

Termination was substantively and procedurally unfair; the employer proved no poor performance and did not avail the job description forming the benchmark

Reasoning

The termination letter cited poor performance. Under Section 41 of the Employment Act, the employee must be explained the reasons and heard before termination. The Respondent's witness could not point to proof of poor performance, and the job description that would form the performance benchmark was not availed, leaving the Court unable to see how the verdict of poor performance was reached. No valid reason and no fair procedure were established.

p. 4
02

Whether the surcharge of Kshs. 426,000 for unbanked cash was lawful

Holding

The surcharge was irregular and the amount must be refunded to the Claimant

Reasoning

A surcharge is a disciplinary measure that requires compliance with Section 41 procedural fairness. Here the surcharge was unilateral, with no document showing how the figures were arrived at, and some deductions exceeded half the Claimant's salary. Additionally, surcharging the Claimant while simultaneously terminating him over the same unbanked cash allegations breached the rule against double jeopardy.

p. 5

Legal principles established

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  • Where poor performance is alleged, the employer must point out shortcomings and give the employee a reasonable opportunity to improve
  • An employer alleging poor performance must demonstrate an objective performance evaluation system and provide support for improvement
  • A surcharge is a disciplinary action that may only be taken after compliance with the procedural fairness requirements of Section 41 of the Employment Act

Court orders

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  1. 1.6 months' salary in compensation of Kshs. 600,000
  2. 2.Refund of irregular surcharge of Kshs. 426,000 (total award Kshs. 1,026,000)
  3. 3.Award subject to statutory deductions and attracting interest at court rates from date of judgment until payment in full
  4. 4.Claimant awarded costs of the case
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes (Employment Act; Memorandum of Claim for unfair dismissal)

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, "Kibira v Twiga Foods Limited (Cause 463 of 2019) [2025] KEELRC 2751 (KLR)", Case Analysis (2025). Cause No. (not stated in judgment; Memorandum of Claim dated 12th July 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2751/eng@2025-10-09

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