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ELRCPartially AllowedNot stated in the extract provided

Waweru v Amoebax Insurance Agency Limited (Cause E009 of 2023) [2025] KEELRC 233 (KLR)

Employment and Labour Relations Court
31 January 2025
3,467 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled that even probationary employees must be given fair hearings and employers must prove poor performance with actual performance records.

What this practically means

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Executive summary

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The Claimant was employed by the Respondent as an Underwriting Associate on a probationary contract effective 1st November 2022. By a letter dated 28th November 2022 the Respondent notified her that her contract would not be extended beyond its expiry on 1st December 2022, citing failure to meet set goals, failure to report to or consult her direct supervisor, and failure to follow instructions. She sued for Kshs 1,420,000 as damages for unfair termination and legal fees, contending that no due process under the Employment Act or her contract was followed. The Respondent maintained that her probationary contract simply lapsed by effluxion of time owing to unsatisfactory performance, communicated in writing. The Court framed three issues: justifiable reason, procedural fairness, and entitlement to reliefs. On substantive fairness, it found the Respondent had exhibited no measurable targets, key performance indicators, evaluation mechanism or appraisal report, and following National Bank of Kenya v Samuel Nguru Mutonya and Jane Samba Mukala, held the employer failed to discharge its burden under Sections 43(1) and 45(2)(a) and (b). On procedure, the Court held that after Monica Munira Kibuchi declared Section 42(1) unconstitutional, employers must comply with Section 41 even for probationary employees; there was no evidence of meetings, notice of contemplated termination, or an opportunity to respond, rendering the termination procedurally unfair. The Court awarded compensatory damages of Kshs 330,000 (three months' gross salary) with interest at court rates from the date of judgment, and costs of the suit; the claim for legal fees was declined as unproved. Judgment dated, signed and delivered at Nairobi on 31st January 2025 by Stella Rutto, Judge.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Respondent has proved that there was a justifiable reason to terminate the employment of the Claimant
  2. 2.Whether the Claimant was afforded procedural fairness prior to termination of her employment
  3. 3.Is the Claimant entitled to the reliefs sought?

Key legal issues

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01

Justifiable reason for termination (substantive fairness)

Holding

Termination was substantively unjustified; the employer failed to prove valid reasons for termination on grounds of poor performance

Reasoning

Under Sections 43(1) and 45(2)(a) and (b) of the Employment Act, the employer bears the burden of proving reasons for termination. The Respondent produced no measurable targets, key performance indicators, evaluation matrix or appraisal report, and no evidence of any evaluation of the Claimant's performance. Following National Bank of Kenya v Samuel Nguru Mutonya and Jane Samba Mukala, the effort leading to a poor-performance termination must be established, which was not done.

p. 6
02

Procedural fairness under Sections 41 and 45(2)(c) of the Employment Act

Holding

Termination was procedurally unfair for want of compliance with Section 41

Reasoning

Section 41(1) requires notification of allegations and an opportunity to make representations in the presence of a fellow employee or union representative. The exemption for probationary employees under Section 42(1) was declared unconstitutional in Monica Munira Kibuchi in 2021, so it no longer applied to a November 2022 termination. There was no evidence of meetings convened, notice of contemplated termination, or an opportunity to defend herself.

p. 7
03

Quantum of relief

Holding

Compensatory damages of three months' gross salary (Kshs 330,000) awarded; legal fees claim declined

Reasoning

The Court exercised discretion under the Employment Act to award compensatory damages proportionate to the considerably short length of the employment relationship and the circumstances of the termination. The specific claim for legal fees was not proved to the requisite standard.

p. 7

Legal principles established

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  • Where poor performance is the reason for termination, the employer bears a high level of proof and must show it had a policy or practice for measuring performance and measures to address poor performance
  • Section 41 of the Employment Act is mandatory; termination without compliance is procedurally unfair
  • Following the declaration of unconstitutionality of Section 42(1) in Monica Munira Kibuchi, employers must comply with Section 41 even for probationary employees

Court orders

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  1. 1.Compensatory damages in the sum of Kshs 330,000.00 being equivalent to three (3) months of her gross salary
  2. 2.Interest on the amount in (a) at court rates from the date of Judgment until payment in full
  3. 3.The Claimant shall also have the costs of the suit

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment claims (Employment Act); the claim was filed as a Memorandum of Claim

Relief refused

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Claim for Kshs 1,420,000 damages as prayed (awarded only Kshs 330,000)

Award limited to three months' gross salary considering the short length of employment and circumstances of termination

p. 7

Claim for legal fees

Not proved to the requisite standard despite being a specific claim

p. 7

Costs

The Claimant shall also have the costs of the suit.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Against this background, the Court enters Judgment in favour of the Claimant against the Respondent and she is awarded: a. Compensatory damages in the sum of Kshs 330,000.00 being equivalent to three (3) months of her gross salary.
p. 7Final orders – compensatory damages
Interest on the amount in (a) at court rates from the date of Judgment until payment in full.
p. 7Final orders – interest
The Claimant shall also have the costs of the suit.
p. 7Final orders – costs
the Respondent being the employer, had the onus to prove the reasons for the Claimant’s termination from employment and as it has failed to do so, it goes without saying that the said termination was not substantively justified hence unfair.
p. 6Substantive fairness – burden of proof
the provisions of Section 41 of the Act are mandatory hence it follows that anything short of that process is procedurally unfair.
p. 7Procedural fairness – mandatory Section 41
in this case, the Claimant was terminated on 28th November 2022 hence it follows that as of then, the Respondent was enjoined to comply with the procedural requirements under Section 41 of the Act.
p. 6Probationary employees – effect of Monica Munira Kibuchi
It will not sufice to just say that one has been terminated for poor performance as the efiort leading to this decision must be established
p. 5Poor-performance terminations – employer's evidential burden

Issues in the judgment

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minor

The judgment dates the termination letter as 28th November 2023 in paragraph 30, whereas the rest of the judgment (including the letter itself and paragraph 46) uses 28th November 2022

minor

Quotation from the poor-performance standard refers to section 8 of the Employment Act, which does not correspond to the performance-evaluation provisions elsewhere cited (Sections 43 and 45); possibly intended as printed in the cited authority

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Waweru v Amoebax Insurance Agency Limited (Cause E009 of 2023) [2025] KEELRC 233 (KLR)", Case Analysis (2025). Not stated in the extract provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/233/eng@2025-01-31

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.