Aika v Surgilinks Limited (Cause E582 of 2022) [2024] KEELRC 1583 (KLR)
The bottom line
#A Kenyan court awarded a dismissed employee over Kshs 420,000 because his employer could not prove poor performance or a fair disciplinary process.
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 has proved that there was a justifiable reason to terminate the employment of the Claimant
- 2.Whether the Claimant was accorded procedural fairness prior to termination of his employment
- 3.Is the Claimant entitled to the reliefs sought
Key legal issues
#Substantive justification for termination on grounds of poor performance
The Respondent failed to prove a valid and fair reason; targets were unclear and no performance evaluation or assessment measures were proved
The termination letter cited poor performance and gross misconduct. However, an email of 17th May 2021 showed targets had not been clearly communicated, and the Respondent led no evidence of a performance evaluation report or of measures put in place to assess performance against specified targets. The alleged poor performance was therefore not the product of an objective assessment, and the burden under Sections 43 and 45(2)(a) and (b) of the Employment Act was not discharged.
Procedural fairness under Section 41 of the Employment Act
The termination was procedurally unfair; the Respondent did not prove notice of the allegations, notification of the hearing, reasonable time, or the right to accompaniment
Apart from minutes of a meeting of 19th April 2021, there was no evidence of notification of a disciplinary hearing, the allegations to be faced, the time given to appear, or the right to be accompanied. The Claimant testified the last meeting he attended was a relocation meeting and he learned of his dismissal only when asked to collect a parcel. Applying the four Postal Corporation of Kenya v Tanui elements, Section 41 was not satisfied.
Entitlement to notice pay, compensatory damages and house allowance
One month's notice pay and seven months' gross salary as compensatory damages awarded; house allowance claim denied because salary was consolidated as 'gross'
Having found the termination both substantively unjustified and procedurally unfair, the court awarded one month's salary in lieu of notice and compensatory damages equivalent to seven months' salary, considering the length of employment and circumstances of termination. The house allowance claim failed because the employment confirmation letter expressed the salary as 'gross', which the court held includes house allowance.
Legal principles established
#- Where poor performance is the reason for termination, the employer bears a high level of proof and must show it had measures in place to assess performance against set targets before terminating
- An employer must prove compliance with Section 41's requirements of notice, explanation and accompaniment before termination; absence of evidence of notification of a disciplinary hearing vitiates the procedure
- A salary expressed as 'gross' is inclusive of house allowance
Court orders
#- 1.A declaration that the Claimant was unfairly and unlawfully terminated from employment
- 2.One month's salary in lieu of notice of Kshs 52,486.00
- 3.Compensatory damages of Kshs 367,402.00 being seven months of gross salary
- 4.Total award of Kshs 421,888.00
- 5.Interest on the total award at court rates from the date of judgment until payment in full
- 6.The Claimant shall have the costs of the suit
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 over a claim for unfair termination of employment
Relief refused
#House allowance of Kshs 758,800
The Claimant's salary was expressed as 'gross' and therefore was inclusive of house allowance
Costs
The Claimant shall also have the 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.
The total award is Kshs 421,888.00.
Interest on the amount in (d) at court rates from the date of Judgment until payment in full.
The Claimant shall also have the costs of the suit.
A declaration that the Claimant was unfairly and unlawfully terminated from employment.
the Respondent has failed to discharge its evidential burden under Sections 43 and 45(2) (a) and (b) of the Act by proving that it had a valid and fair reason to terminate the Claimant's employment
the Respondent's termination from employment was not substantively justified and was procedurally unfair in light of the provisions of Sections 41, 43 and 45 of the Act.
Issues in the judgment
#The judgment states the termination letter was received on 12th July 2022 while the opening paragraph records the employment relationship as having ended on 12th July 2021
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Aika v Surgilinks Limited (Cause E582 of 2022) [2024] KEELRC 1583 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1583/eng@2024-06-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.