Nyawira v Pharmaccess Foundation (Employment and Labour Relations Cause E907 of 2021) [2025] KEELRC 1543 (KLR)
The bottom line
#A Kenyan employer lost an unfair termination case because it cut short an employee's performance improvement plan and never held a disciplinary hearing before dismissing her.
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's employment was unfairly and unlawfully terminated by the Respondent
- 2.Whether the Claimant is entitled to the orders/remedies sought
Key legal issues
#Whether the termination was fair in procedure under Section 41 of the Employment Act
Termination was procedurally unfair; no disciplinary hearing was held and the employee was not given a chance to defend herself
The court reviewed the chronology of PIPs and found the Claimant was repeatedly reassessed before the expiry of each 3-month PIP without being given a breather. No disciplinary hearing was conducted and her poor performance was never tested in a hearing where she could defend herself, breaching Section 41.
Whether the reason for termination was valid and fair under Section 45(2)
Even if the Respondent had evidence of poor performance, the failure to follow fair procedure rendered the termination unfair and unjustified
The Respondent was expected to grant the Claimant enough time before reassessing her but kept pushing her without considering the timelines on the PIPs. Under Section 45(2) an employer must prove valid reason, fair reason and fair procedure; procedure having failed, the termination was unfair.
Entitlement to service pay
Service pay is not payable to an employee who is a member of NSSF
The Claimant confirmed she was a member of NSSF and payslips showed remittances. Section 35(6)(d) of the Employment Act excludes NSSF members from the service pay scheme.
Legal principles established
#- An employer must allow a performance improvement plan to run its full stated period before reassessing the employee and must subject the employee to a disciplinary hearing before terminating for poor performance
Court orders
#- 1.One month's salary in lieu of notice of Kshs. 211,914.20
- 2.Compensation of 8 months' salary for unfair termination, Kshs. 1,695,313.60
- 3.Payment for 2 years' untaken leave, Kshs. 423,828.40
- 4.Total award of Kshs. 2,331,056.20 less statutory deductions
- 5.Respondent to pay costs of suit
- 6.Interest at court rates with effect from the date of judgment
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 (first-instance employment claim)
Relief refused
#Service pay
Claimant was a member of NSSF, which by statute disqualifies service pay
Costs
The Respondents will pay cost of suit and interest at court rates with effect from the date of this Judgment.
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.
There is no evidence that the Claimant was subjected to any disciplinary hearing and her poor performance tested and to be given chance to defend herself. This being the case, the termination of the Claimant was unfair and unjustified as provided for under section 45 (2) of the Employment Act 2007
The Respondents may have had evidence that the Claimant was performing below the expected target, they were however expected to grant her enough time before re-assessing her. It is however evident that the Respondents kept pushing and pushing the Claimant without considering timelines placed on her.
Total awarded = 2,331,056.20 less statutory deduction. The Respondents will pay cost of suit and interest at court rates with efiect from the date of this Judgment.
Issues in the judgment
#Total awarded does not match the sum of the itemised awards (211,914.20 + 1,695,313.60 + 423,828.40 = 2,331,056.20, but the stated total omits the notice pay arithmetic consistently)
Judgment cites section 47(1) of the Constitution in submissions context, which appears to be a misdescription of the fair administrative action provisions
Statutory quotation in paragraph 61 attributes subsections (5) and (6) text after section 35 reference, and quote in paragraph 56 numbering appears garbled
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nyawira v Pharmaccess Foundation (Employment and Labour Relations Cause E907 of 2021) [2025] KEELRC 1543 (KLR)", Case Analysis (2025). Memorandum of Claim dated 25th October 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1543/eng@2025-05-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.