Omondi & 9 others v Brava Food Industries Ltd & another (Employment and Labour Relations Cause E1772 of 2017) [2025] KEELRC 1378 (KLR)
The bottom line
#A Kenyan court ruled that firing five employees for poor performance without proof or a hearing was unfair, and that paying colleagues differently for identical work was discrimination.
What this practically means
#Executive summary
#Key legal issues
#Whether the terminations were substantively unfair for lack of valid reason (poor performance)
The respondent failed to prove poor performance; no appraisal reports, evaluation forms (save one favourable probationary form for the 5th claimant) or supervisor statements were produced, so the terminations lacked valid reasons
The employer relied on poor performance as the ground for termination. Section 43 places the burden of proving reasons on the employer. The respondent's HR manager admitted no appraisal reports or supervisor statements were produced. The only evaluation form produced rated the 5th claimant as having met expectations. The court thus found non-performance unproven on a balance of probabilities.
Whether probationary employees were entitled to procedural fairness under section 41 despite section 42 of the Employment Act
Section 42(1), having been declared unconstitutional in Monica Munira Kibuchi and upheld on appeal in Red Lands Roses, affords no defence; probationary terminations without hearing were procedurally unfair
The respondent argued that section 42(1) exempted probationary contracts from section 41 hearing requirements. The court traced the jurisprudence, noting the ELRC's three-judge bench in Monica Munira Kibuchi declared section 42(1) inconsistent with Articles 41 and 47 of the Constitution, a decision the Court of Appeal in Red Lands Roses confirmed as unchallenged. Consequently, all claimants, including those on probation, were entitled to a hearing.
Whether the principle of equal pay for work of equal value was violated
The difference in remuneration between Jane and Erick (Kshs. 70,000) and Margaret (Kshs. 109,000) for the same sales representative job in Nairobi was unjustified; the discrimination claim by the 3rd and 4th claimants was allowed
The employer's justification rested on years of prior experience, but no evidence showed Margaret had superior skills or that her skills commanded higher market rates. The respondents bore the burden of justifying the wage differential and failed. The court found the variance in salary, including a conditional variable pay imposed only on Erick and Jane, to be unjustified discrimination.
What remedies were appropriate for the unfair terminations
Compensation equivalent to 2 months' salary for the 1st, 2nd and 5th claimants and 1 month's salary for the 3rd and 4th claimants, in line with the court's earlier award in Isdor Rachuonyo v Brava Food Industries
Guided by section 49 of the Employment Act and the Supreme Court's decision in Kenfreight v Nguti, the court considered the very short service periods (under six months), the claimants' youth and employability, and notice pay already received. Consistency with the court's prior decision against the same employer on similar facts yielded 2 months' compensation for earlier hires and 1 month for the later-engaged 3rd and 4th claimants.
Legal principles established
#- Termination of employment must satisfy both substantive and procedural fairness to pass the fairness test
- Where poor performance is the reason for termination, the employer bears a high level of proof and must show an evaluation system was in place and the employee was heard
- Section 42(1) of the Employment Act, to the extent it excludes probationary employees from the protections of section 41, is unconstitutional and of no legal effect
- A claimant alleging unequal pay must establish that the discriminatory ground is the reason for the unequal treatment; a wage differential must be justified by the employer
- The burden of proving reasons for termination rests on the employer, failing which the termination is deemed unfair
Court orders
#- 1.Compensation of 2 months' salary (Kshs. 420,000) to the 1st claimant, Barrack Omondi
- 2.Compensation of 2 months' salary (Kshs. 378,000) to the 2nd claimant, David Owiti
- 3.Compensation of 1 month's salary (Kshs. 70,000) plus underpayment of Kshs. 117,000 to the 3rd claimant, Erick Ochieng
- 4.Compensation of 1 month's salary (Kshs. 70,000) plus underpayment of Kshs. 117,000 to the 4th claimant, Jane Atieno
- 5.Compensation of 2 months' salary (Kshs. 218,000) to the 5th claimant, Margaret Wanjiru
- 6.Interest at court rates on the awarded amounts from the date of judgment until payment in full
- 7.Costs of the suit awarded to the claimants
- 8.Stay of execution granted for 30 days
- Jurisdiction invoked
- Jurisdiction of the Employment and Labour Relations Court under Article 162(2)(a) of the Constitution and section 12(1) of the Employment & Labour Relations Court Act (as referenced in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Omondi & 9 others v Brava Food Industries Ltd & another (Employment and Labour Relations Cause E1772 of 2017) [2025] KEELRC 1378 (KLR)", Case Analysis (2025). Not stated in judgment (Claimants' Memorandum of Claim dated 1/08/2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1378/eng@2025-05-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.