Mbui v Jilag Limited & another (Cause 122 of 2019) [2023] KEELRC 2142 (KLR)
The bottom line
#A Nairobi court awarded a dismissed manager six months' salary because her employer couldn't prove she actually performed poorly or was insubordinate.
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 respondent proved the reasons for termination of the claimant's employment (non-performance and insubordination) under sections 43 and 47(5) of the Employment Act
- 2.Whether the termination of the claimant's employment was unfair within the meaning of section 45 of the Employment Act
- 3.What remedies, if any, the claimant is entitled to, including compensation, gratuity and unremitted statutory deductions
Key legal issues
#Proof of reasons for termination under section 43 and 47(5) of the Employment Act
The respondent failed to prove non-performance and insubordination; the termination was unfair under section 45
The court held that poor performance as a ground must meet section 45(2)(5): the employer must show a fair reason and prove it. The claimant showed understaffing and pay disparities at the Jubilee site; the respondent did not demonstrate it addressed staff turnover or facilitated the claimant. The insubordination allegation lacked particulars. The employer therefore failed to discharge its statutory burden.
Remedies for unfair termination
Six months' salary (Kshs.510,000/-) awarded as compensation; gratuity refused; unremitted statutory deductions to be remitted with penalties
The claimant served about one year three months and, being last in, would first be considered in a redundancy; six months' salary was held adequate compensation. Gratuity was disallowed due to NSSF registration. The court ordered remittance of NSSF dues and PAYE with penalties that were deducted but not remitted.
Legal principles established
#- The burden of proving the reason or reasons for termination rests on the employer, and failure to do so renders the termination unfair
- Reliance on poor performance requires the employer to demonstrate a performance measurement system, appraisals, warnings and facilitation of the employee
Court orders
#- 1.The respondent shall pay the claimant Kshs.510,000/- on account of compensation for unfair termination of service
- 2.The respondent shall remit, including penalties where applicable, all statutory deductions made from the claimant's salary but not remitted
- 3.The claimant shall have costs of the suit
- 4.Prayer (a) shall be subject to statutory deductions but shall attract interest at Court rates from the date of the judgment until payment in full
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
Relief refused
#Claim for gratuity
The claimant was registered with NSSF
Costs
The claimant shall have costs of the suit
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.
In conclusion the respondent has failed to prove the reasons for terminating the claimants service as required under section 43 as read together with section 47(5) of the Employment Act.
The respondent never provided suficient evidence to show it addressed the challenge of high stafi turnover raised by the claimant.
The respondent shall pay the claimant Kshs.510,000/- on account of compensation for unfair termination of service.
The respondent shall remit, including penalties where applicable, all statutory deductions made from the claimant's salary but not remitted.
Issues in the judgment
#The 2nd Respondent's actual name and the claimant's name are not stated in the judgment text; parties are referred to only by role
Termination date discrepancy: claimant pleaded termination on 3rd May, 2017 while the respondents and the court proceed on 9th January, 2018
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mbui v Jilag Limited & another (Cause 122 of 2019) [2023] KEELRC 2142 (KLR)", Case Analysis (2023). Not stated in the judgment text provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2142/eng@2023-09-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.