Mwaniki v Vision Africa Sacco Limited (Cause 279 of 2018) [2022] KEELRC 4128 (KLR)
The bottom line
#Kenya's Employment Court awarded a Sacco CEO 12 months' salary because his employer proved no performance targets and gave him no fair hearing before firing him.
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 Claimant's employment was wrongfully/unfairly terminated
- 2.Whether due process was followed before the dismissal
- 3.Whether the Claimant is entitled to the reliefs sought
Key legal issues
#Procedural fairness - hearing before termination
The Claimant was not accorded a fair hearing as required by section 41 of the Employment Act; the 30th December 2015 board meeting did not amount to a disciplinary hearing and no disciplinary committee was constituted
The Claimant was invited to a general board meeting whose minutes did not indicate a disciplinary hearing. The Respondent's own witness admitted the appeal avenue was not indicated in the HR manual. A meeting discussing performance 'in passing' does not satisfy section 41's mandatory notification and hearing requirements, so the process was procedurally unfair.
Substantive fairness - proof of poor performance
The Respondent failed to prove the alleged dismal performance; no performance appraisals, targets or performance evidence were tabled
RW-1 admitted the Claimant was never subjected to performance appraisal and RW-2 had no documents showing performance. Section 43 places the burden of proving the reason for termination on the employer. Following Kamau Mwaura v NBK and Jane Samba Mukala, an employer alleging poor performance must show a policy or practice for measuring performance, which was absent.
Unfair termination under section 45(2)
The termination was unfair and unjustified, entitling the Claimant to maximum compensation of 12 months' salary
Both substantive and procedural fairness failed: no valid reason was proved and no fair process was followed. Under section 45(2) the termination is unfair where the employer fails to prove a valid and fair reason and fair procedure. The court exercised discretion under section 49 to award the maximum 12 months' salary given the Claimant's career was cut short.
Legal principles established
#- An employer alleging poor performance must demonstrate that performance parameters were set and evidence of how the employee performed against them, before a hearing under section 41 of the Employment Act satisfies fairness
- The burden lies on the employer to prove the reason(s) for termination; failure renders the termination unfair under section 45
Court orders
#- 1.Declaration implied that the Claimant's termination was unfair and unjustified
- 2.Award of maximum compensation of 12 months' salary under section 49 of the Employment Act, being 12 x Kshs. 128,700 = Kshs. 1,544,400 less statutory deductions
- 3.Respondent to pay costs of the suit plus interest at court rates from the date of the judgment
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 (first-instance unfair termination claim)
Relief refused
#Reinstatement or payment of Kshs. 7,979,400 for 62 months leading to retirement
Court instead awarded 12 months' compensation; the alternative payment of salary to retirement was not granted
Reinstatement
Not granted; compensation awarded instead
Costs
The Respondent will pay costs of this suit plus interest at Court rates with effect from the date of this Judgment.
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.
The Claimant having been terminated unfairly and unjustly, I find for him and award him maximum compensation of 12 months salary in view of the fact that he was treated unfairly and his career cut short unceremoniously.
This is equivalent to 12 x 128,700 = 1,544,400/= Less statutory deductions
The Respondent will pay costs of this suit plus interest at Court rates with efiect from the date of this Judgment.
There is indeed no evidence tabled before this Court on the expected targets set by the Respondent for Claimant to achieve nor evidence of how he actually performed.
There is no indication that he was given an opportunity to be heard as provided for under Section 41 of the Employment Act 2007
Issues in the judgment
#Judgment does not state the case number of the suit, the court station, or the parties' full names in the extract provided; title reconstructed from content
Judgment states the termination letter was dated 30th January, 2016 in the claim summary but refers to a termination letter issued on 28th January, 2016 in the Respondent's submissions, and the board resolution of 28th January, 2016
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mwaniki v Vision Africa Sacco Limited (Cause 279 of 2018) [2022] KEELRC 4128 (KLR)", Case Analysis (2022). ELRC Cause, claim filed 17th December 2018 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/4128/eng@2022-09-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.