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ELRCDismissedAppeal No E008 of 2024· [2025] KEELRC 524 (KLR)

Ogero v CCI Kenya Limited (Appeal E008 of 2024) [2025] KEELRC 524 (KLR)

Employment and Labour Relations Court
24 February 2025
3,064 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court confirmed that firing an employee for poor performance is lawful if the employer put them on a performance plan and genuinely heard their side.

What this practically means

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Executive summary

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This is a first appeal to the Employment and Labour Relations Court at Nairobi against the judgment of Honourable Principal Magistrate B.M. Cheloti delivered on 15th December 2023, which had dismissed a claim of unfair termination. The appellant, an employee summarily terminated by letter dated 10th February 2022 on account of poor performance after a Performance Improvement Plan (PIP), appealed on grounds including that the trial court failed to distinguish a PIP from a disciplinary process and failed to consider whether the termination met the tenets of natural justice. The appellant argued that Joshua Kamwere, head of finance, acted as supervisor, complainant and judge in the PIP review, and that no disciplinary hearing under section 41(1) and (2) of the Employment Act followed the PIP review. The respondent maintained that the appellant was placed on PIP after warnings, heard before a panel of four on 31st January 2022, admitted failing some KPIs and receiving support, and signed the minutes. The court applied the standard first-appeal duty to re-evaluate evidence, and the principles from Thomas Odol Ojwang, Periosteum Bheekhoo and Prof. Macha Isunde on poor-performance terminations. It held that the respondent had valid and fair reasons for the termination, that the appellant bore the burden under section 47(5), and that section 41 was sufficiently adhered to since the employee was heard on the allegations and given opportunity to respond. The court upheld the trial court's judgment, dismissed the appeal with costs, and ordered no reliefs for the appellant.

Key legal issues

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01

Whether the respondent was justified in terminating the appellant on account of poor performance

Holding

Yes - the respondent had valid and fair reasons; the appellant was issued a PIN, placed on PIP, given support, and admitted not achieving some KPIs

Reasoning

The appellant was issued a Performance Improvement Notice and placed on a PIP, which were reviewed at a hearing on 31st January 2022. The appellant acknowledged not achieving some KPIs and admitted receiving support from his superiors, never claiming anything hindered his performance. Under section 47(5) of the Employment Act the burden of proving unfair termination lies on the employee, which was not discharged.

p. 5
02

Whether the termination procedure met the tenets of natural justice under section 41 of the Employment Act, given that no separate disciplinary hearing followed the PIP review

Holding

Yes - procedural fairness was met; the employee was heard on his poor performance on 31st January 2022 and given an opportunity to respond

Reasoning

Although the appellant argued that a PIP is distinct from a disciplinary process and that no show-cause hearing followed the PIP review, the court held that section 41 is satisfied where the employer shows the employee was heard on the allegations and could respond. The appellant was heard on 31st January 2022 before a panel, responded to the KPIs, and signed the minutes. Substantive and procedural fairness are both required, and both were present here.

p. 6
03

Whether the appellant was entitled to the reliefs sought (damages, house allowance, service pay)

Holding

No - having found the termination fair and the appeal without merit, no reliefs were due

Reasoning

The reliefs were premised on a finding of unfair termination. Since the court found valid reason and proper procedure, the appeal failed and no reliefs were awarded.

p. 6

Legal principles established

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  • The duty of the first appellate court is to re-evaluate the evidence on both law and facts and come up with its own findings, while allowing for the trial court's advantage of seeing and hearing the witnesses
  • Section 41 of the Employment Act is sufficiently adhered to if the employer illustrates that the employee was heard on the allegations and given a reasonable opportunity to respond
  • Termination for poor performance is a valid and fair reason, but requires both substantive and procedural fairness

Court orders

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  1. 1.The judgment of the trial court is upheld
  2. 2.The appeal is dismissed with costs

Authorities

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Legislation

  • Employment Actsection 41(1) and (2)
  • Employment Actsection 42(1)
  • Employment Actsection 43
  • Employment Actsection 44
  • Employment Actsection 45
  • Employment Actsection 47(5)
  • Constitution of Kenyaarticle 47

Cases cited (10)

  • Peters –vs- Sunday Post Limited
    [1958] EA 424
  • Naumy Jemutai Kirui v Unilever Tea Kenya Limited
    [2020] eKLR
  • Jane Samba Mukala v Ol Tukai Lodge Limited
    Industrial Cause Number 823 of 2010: (2010) LLR 255 (ICK) (September, 2013)
  • Alex Wainaina Mbugua v Kenya Airways Limited
    [2017] KEELRC 496 (KLR)
  • Alex Wainaina Mbugua v Kenya Airways Limited
    [2017] KEELRC 469 (KLR)
  • Thomas Odol Ojwang vs Kenol Kobil Ltd
    [2015] eKLR
  • Periosteum Bheekhoo v. Linksoft Group
    [2015] eKLR: Cause No.1232 of 2014 at Nairobi
  • Prof. Macha Isunde vs Lavington Security Guards Limited
    [2017] eKLR
  • Janet Nyandiko versus Kenya Commercial Bank Limited
    (2017) eklr
  • Walter Ogal Anuro v Teachers Service Commission
    [2013] eKLR
On appeal from
Principal Magistrate's Court
Not stated
Jurisdiction invoked
First appellate jurisdiction of the Employment and Labour Relations Court over the subordinate court judgment (appeals division)

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, "Ogero v CCI Kenya Limited (Appeal E008 of 2024) [2025] KEELRC 524 (KLR)", Case Analysis (2025). Appeal No E008 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/524/eng@2025-02-24

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