Mburu v Insight Management Consultants Limited & another (Cause 2442 of 2016) [2024] KEELRC 2123 (KLR)
The bottom line
#Kenya's Employment Court ruled a staffing agency employee can only sue his actual employer, and fair performance-based dismissal is lawful.
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 was an Employee of both Respondents
- 2.whether he was unfairly and unlawfully dismissed
- 3.whether he was defamed
- 4.whether he merits the prayers sought from the Respondents, jointly and severally
Key legal issues
#Identity of the employer
The Claimant was an employee of the 1st Respondent only; the claim against the 2nd Respondent was declined.
All contracts were executed with the 1st Respondent, which paid and reviewed his salary, evaluated performance, exercised disciplinary control, terminated the contract and issued the Certificate of Service. Clause 6 expressly excluded an employer-employee relationship with the client. No evidence suggested he was a shared employee.
Fairness and validity of termination
Termination was procedurally fair and founded on a valid reason under Sections 41, 43 and 45 of the Employment Act.
The Claimant was placed on a Performance Improvement Plan, attended performance review meetings, was heard at a three-way meeting of 5th September 2016, and was allowed an appeal which was considered and rejected. His concession on cross-examination that his sales were under par, attributed to donating sales to his trainee, confirmed under-par performance.
Defamation
The e-mail to customers informing them of the Claimant's departure was not defamatory.
The notice was a statement of fact, not malicious or damaging, and was made within the spirit of restrictive covenants in clauses 24 and 25 of the contract. It was usual and permissible to notify customers that a salesperson had ceased employment and was no longer authorized to transact business.
Legal principles established
#- The reason for termination is what the employer genuinely believed to exist at the time of termination, per Section 43 of the Employment Act.
- Employers are entitled to enforce restrictive covenants against former employees covering non-competition, non-solicitation, non-dealing and non-poaching.
- An employee deployed to a client company under a manpower-supply arrangement is not thereby an employee of that client where the contract excludes such a relationship.
Court orders
#- 1.The Claim is declined against both Respondents.
- 2.No order on the costs.
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 (Sections 41, 43 and 45 applied); specific constitutional/statutory provision not stated in judgment
Relief refused
#1-month salary in lieu of notice
Claim dismissed; termination was for valid reason and with fair procedure
Salary for remainder of contract and allowances
Claim dismissed in entirety
Compensation of 12 months' salary for unfair termination
Termination found fair, lawful and procedurally sound
Retraction of the alleged defamatory e-mail
The notice to customers was found to be a statement of fact, not defamatory
Claim against the 2nd Respondent
Claimant was employee of the 1st Respondent only; no employer-employee relationship with the 2nd Respondent
Costs
No order on the costs.
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 Claim is declined against both Respondents.
No order on the costs.
The reason, or reasons for termination of a contract, are the matters that the Employer at the time of termination of the contract, genuinely believed to exist, and which cause the Employer to terminate the services of the Employee.
The Claim against the 2nd Respondent is declined, with no order on the costs.
Employers are entitled to restrictive covenants against former Employees, which cover areas such as non-competition, non-solicitation, non-dealing, and non-poaching of existing Employees by former Employees.
Issues in the judgment
#The judgment does not state the case number or neutral citation, and parties are referred to only as 'The Claimant' and 'The Respondents' without names.
The judgment states the Claimant's salary as Kshs. 138,725 in the pleadings, while his relief claims 1-month salary in lieu of notice at Kshs. 68,725, an apparent internal inconsistency in figures.
Inconsistent termination dates appear in the record: the termination letter is dated 9th September 2016 with immediate effect, the Certificate of Service states 5th September 2016, and the pleading says 21st September 2016; the Court itself found the precise date inconclusive.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mburu v Insight Management Consultants Limited & another (Cause 2442 of 2016) [2024] KEELRC 2123 (KLR)", Case Analysis (2024). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2123/eng@2024-08-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.