Juma v Telkom Kenya Limited & 2 others (Cause 916 of 2018) [2025] KEELRC 2902 (KLR)
The bottom line
#Telkom Kenya was ordered to pay a former senior manager 10 months' salary because it fired him without a fair hearing or proof of poor performance.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the termination of the claimant's service met the statutory requirements under section 41, 43 and 47(5) of the Employment Act and, related to this, whether the respondent was justified in terminating the claimant's service on account of poor performance
- 2.Whether in terminating the claimant's service the respondent discriminated against the claimant and whether the termination was intended to circumvent him from benefiting from the restructuring of the respondent and the ensuing payment of redundancy benefits
- 3.Whether audio recording by the claimant of the meeting between him and the respondent's officers without the knowledge and consent of the latter amounted to infringement of their right to privacy and whether the transcription of the recording is admissible in evidence
- 4.Whether the claimant, if successful, is entitled to be awarded the claims itemized in his amended statement of claim
Key legal issues
#Procedural fairness under section 41 of the Employment Act
The termination was procedurally unfair: the claimant was invited by an email giving very short notice, the email did not warn that termination was contemplated, he was not told he could be accompanied, and he was terminated the same day as the meeting
The court contrasted the 2017 disciplinary process (show cause letter, response, hearing) with the 2018 process, which consisted only of an email inviting a performance discussion, followed by a termination letter the same day. The email did not call for a response and did not intimate that termination was in the offing. No minutes of the meeting were filed. This fell below the mandatory notification and hearing requirements of section 41, rendering the termination unfair under section 45.
Validity of reasons for termination on account of poor performance
The respondent failed to discharge the burden under sections 43 and 47(5); there were no valid reasons for termination
Applying Jane Samba Mukala v Ol Tukai Lodge, the court held that an employer terminating for poor performance must show an evaluation policy, a performance improvement process, and evidence of appraisal. The respondent admitted the claimant was never put on a performance improvement plan and produced no appraisal evidence. The network outage blamed on the claimant was caused by expiry of the Network Provider's License, and the respondent gave no evidence of what more the claimant could have done. The termination was therefore unjustified.
Discrimination and redundancy-circumvention claim
Rejected - the claimant admitted there was no restructuring or redundancy at the time of his termination and adduced no satisfactory evidence of discrimination
The court found the claimant himself conceded in cross-examination that the 2018 redundancy occurred after he had left and that the retrenchment had nothing to do with his position. No comparator evidence or evidence of differential treatment on a prohibited ground under article 27(4) was presented. The termination was found to be purely on account of poor performance (albeit unjustified), so the pretext claim failed.
Admissibility of the claimant's covert audio recording and transcription
The recording did not infringe privacy and the evidence was admissible; article 50(4) leaves admissibility to the trial court's fairness assessment
The court analyzed article 31 and article 50(4) of the Constitution and the Data Protection Act definitions of personal data and processing, concluding that discretely recording a lawful meeting of persons performing official duties is not a privacy infringement where the recording is not intended to embarrass or blackmail. The court aligned with the South African decision in Bernstein v Bester relied on by the claimant, but having already found for the claimant, declined to dwell on the recording.
Quantum of compensation
An award of 10 months' salary (Kshs.3,369,270/-) was reasonable, taking into account the claimant's length of service and the possibility the employment could have ended naturally or through the termination clause
The court noted the claimant's long service since 1986 and the respondent's ongoing restructuring, but tempered the 12 months sought by considering that the employment may have terminated by either party invoking the termination clause or through natural vagaries such as illness or death. It awarded 10 months' gross salary with interest, subject to taxes and statutory deductions, in addition to contractual terminal benefits.
Legal principles established
#- Before terminating an employee on grounds of misconduct, poor performance or incapacity, the employer must comply with section 41 of the Employment Act by explaining the reasons, giving the employee a chance to be accompanied and heard; failure renders the termination unfair under section 45
- Where termination is on grounds of poor performance, the employer bears a high evidential burden to show an evaluation system, a performance improvement process and evidence of the poor performance; mere assertion does not suffice
- There is no blanket prohibition on admitting evidence obtained in breach of a Bill of Rights; admissibility is determined by the trial court under article 50(4) on whether admission would render the trial unfair or be detrimental to the administration of justice
- Discretely recording a lawful meeting of persons performing their official duties does not infringe the right to privacy under article 31 of the Constitution, provided the recording is not intended to embarrass, blackmail or ridicule
Court orders
#- 1.Judgment entered for the claimant against the 1st respondent for 10 months' salary as compensation for unfair termination of Kshs.3,369,270/- with interest thereon at court rates from the date of judgment until payment in full
- 2.The compensation award to be in addition to the terminal benefits contained in the termination letter dated 23rd March, 2018 if not paid already
- 3.Costs of the suit to the claimant
- 4.The compensation award is subject to taxes and statutory deductions
- 5.The 1st Respondent to issue the claimant with a certificate of service if not issued already
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (Sections 41, 43, 45, 47(5)) and Articles 27, 41 and 47 of the Constitution
Relief refused
#Declarations that the termination violated Articles 27 and 41(1) of the Constitution and section 5(3)(b) of the Employment Act (discrimination claims)
The claimant admitted and no evidence showed there was restructuring or redundancy at the time of his termination; the discrimination plea was unsubstantiated
Retrenchment compensation of Kshs.11,922,898.3
The claimant was not retrenched or declared redundant; the redundancy process occurred months after his termination
General damages for discrimination assessed at Kshs.10,000,000
No case for discrimination was established; the claimant failed to demonstrate he was treated differently from comparably situated employees on a prohibited ground
Damages against the 2nd and 3rd Respondents jointly and severally for harassment and intimidation
No finding was made against the 2nd and 3rd respondents; judgment was entered only against the 1st respondent
Costs
Costs of the suit awarded to the claimant against the 1st respondent.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
From the foregoing it is reasonable to conclude that the 1st respondent did not accord the claimant the procedural fairness prior to terminating his service as contemplated under section 41 of the Employment Act.
the court finds and holds that the respondent failed to discharge the legal burden of proof cast upon it by section 43 as read together with section 47(5) of the Act with the conclusion that the respondent had no valid reasons for terminating the claimant's service
There is therefore no blanket prohibition of evidence obtained in a manner that violates any right or fundamental freedom in the Bill of Rights and the test is if admission of such evidence would render the trial unfair or would be detrimental to the administration of justice then it ought to be rejected.
There is therefore nothing wrong in openly or discretely recording a lawful meeting of persons performing their oficial duties as was done by the claimant herein.
a. 10 month's salary as compensation for unfair termination Kshs.3,369,270/- and interest thereon at Court rates from the date of judgment until payment in full.
e. The 1st Respondent will issue the claimant with a certificate of service if not issued already.
Issues in the judgment
#The judgment is internally inconsistent on the date of the email inviting the claimant to the meeting, at one point referring to 'the email dated 23rd November, 2018 from the 2nd respondent' where the pleaded and established date is 22nd March, 2018
The claim as pleaded sought damages of Kshs.4,043/124 (apparently Kshs.4,043,124) but the compensation awarded (10 months' salary, Kshs.3,369,270/-) does not correspond arithmetically with either the pleaded 12 months' figure or with the 10/12 ratio thereof, and the judgment gives no computation
RW1's evidence and cross-examination place the disciplinary meeting invitation at 5:35 p.m. / 6:00 p.m. on 22nd March 2018 with different descriptions, and the judgment's own recitals of the email timing vary slightly between passages
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Juma v Telkom Kenya Limited & 2 others (Cause 916 of 2018) [2025] KEELRC 2902 (KLR)", Case Analysis (2025). Memorandum of Claim dated 9th February, 2024 (Employment and Labour Relations Court, Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2902/eng@2025-10-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.