AWG & another v Rsm Eastern Africa LLP & another (Cause E439 & E428 of 2020 (Consolidated)) [2025] KEELRC 1336 (KLR)
The bottom line
#A Kenyan court upheld two terminations for poor performance, ruling that contractual notice pay can substitute formal dismissal procedure and that unsupported discrimination claims fail.
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 parties were in a contract of service (existence of employment relationship)
- 2.Whether the 1st claimant's contract was terminated by the letter dated 01.07.2020 and whether the reason for termination (poor performance) was established
- 3.Whether the procedure adopted to terminate the 1st claimant's contract was unfair
- 4.Whether the 1st claimant proved discrimination on account of pregnancy
- 5.Whether payment of terminal dues (notice pay) was made to the 1st claimant
- 6.Whether the 2nd claimant's termination was unfair in procedure and substance
- 7.Whether the 2nd claimant proved sexual harassment, discrimination and unfair labour practices against the 2nd respondent
Key legal issues
#Whether poor performance was established as reason for the 1st claimant's termination
Yes - the claimant's own testimony and exhibits confirmed valid complaints, low evaluation scores and identified areas of improvement
The court relied on the claimant's admission of complaints, her low scores (e.g. 38% on one job), failure to undertake e-learns, and signed end-year reviews identifying areas for improvement. It found the reason existed at termination per section 43 of the Employment Act, 2007, satisfying the employer's evidentiary burden.
Whether the procedure of termination was fair where the employer invoked the contractual notice clause instead of section 41 dismissal procedure
Yes - invoking the contractual three months' notice clause constituted a fair procedure and a soft landing
The court held that since the claimants knew of their poor performance yet failed to improve, the employer could properly opt for contractual termination with notice or pay in lieu rather than summary dismissal under section 41. The full notice pay having been made, both procedure and substance were fair under section 45.
Whether pregnancy-based discrimination was proved by the 1st claimant
No - no evidence linked the termination to her pregnancy
The claimant offered no evidence that the termination was on account of her pregnancy. The employer's evidence that the termination was performance-based, and the claimant's own admissions of performance concerns, defeated the discrimination claim, which failed with the related compensation claim.
Whether the 2nd claimant proved sexual harassment against the 2nd respondent
No - the allegation was an afterthought and unsupported by evidence
The claimant admitted her demand letter made no mention of sexual harassment, no evidence of reporting to the employer was produced, and screenshots had been expunged. She also did not raise the issue at the 29.04.2020 meeting. The court concluded the allegations were misconceived and manufactured to explain the termination.
Legal principles established
#- Where an employer terminates a contract under an agreed contractual termination clause (notice or pay in lieu) rather than dismissing for poor performance, the procedure may be fair even where statutory dismissal procedure under section 41 is not invoked
- Termination for poor performance requires the employer to establish that valid performance concerns existed as at the time of termination under section 43 of the Employment Act
- Allegations of sexual harassment are grave and must be strictly proved
Court orders
#- 1.Judgment entered for the respondents
- 2.Dismissal of the two suits filed by the 1st and 2nd claimants
- 3.No orders on 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, 2007 (sections 41, 43, 45, 49(4)) and the Constitution of Kenya, 2010 (Articles 27, 41) as pleaded by the parties
- Consolidated with
- The two suits by the 1st claimant and 2nd claimant were heard and determined together; no cause numbers stated in the judgment
Relief refused
#1st claimant: declaration of discrimination on account of pregnancy and exemplary damages
No evidence offered to show termination was on account of pregnancy; allegation not established
1st claimant: compensation for unlawful and unfair termination (12 months' salary) and one month's pay in lieu of notice
Termination was per the contractual termination clause with poor performance established and claimant contributed to termination
2nd claimant: declaration of unfair termination and 12 months' compensation
Fair procedure and fair reason established; claimant was fully paid for the three months' notice period
2nd claimant: exemplary damages for sexual harassment and discrimination by the 2nd respondent
Sexual harassment not proved; allegations an afterthought and demand letter made no mention of sexual harassment
Costs of the suits by the claimants
In view of the mixed grill circumstances and belated payment of the 1st claimant's dues, no orders on costs
Costs
No orders on costs; each party to bear own costs - judgment entered for the respondents with dismissal of the two suits with no orders on 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.
In conclusion judgment is entered for the respondents for dismissal of the two suits herein filed for the claimants with no orders on costs.
the 1st respondent correctly opted not to invoke the dismissal on account of unsatisfactory performance and accorded the claimants a soft landing by invoking the termination with notice or pay in lieu of notice.
The Court finds that as envisaged in section 45 of the Employment Act, 2007, the 1st respondent adopted a fair procedure and invoked a fair reason to justify the termination of the 2nd claimant's contract of service.
Claims of sexual harassment are grave and must be strictly proved.
The allegation of discrimination on account of pregnancy is not established at all and the same will fail together with the claim for compensation in that regard.
Issues in the judgment
#Judgment states the employment contract was dated '27.01.2026' which is inconsistent with the pleaded contract dated 27.01.2016 (a date after the judgment)
Judgment refers to termination effective '31.09.2020', a non-existent calendar date, as it appears in the termination letter itself
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "AWG & another v Rsm Eastern Africa LLP & another (Cause E439 & E428 of 2020 (Consolidated)) [2025] KEELRC 1336 (KLR)", Case Analysis (2025). Employment and Labour Relations Court at Nairobi (causes consolidated; Statement of Claim dated 27.08.2020 and Statement of Claim dated 26.08.2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1336/eng@2025-05-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.