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Case Brief · caselaw.co.ke
ELRCAllowedCause No. 445 of 2022

Otieno v Safaricom PLC

Employment and Labour Relations Court at Nairobi
22 May 2024
8,920 words in judgment
View original judgmentRead on Kenya Law Watch case
Editorial sample
·~36 min to read original · ~4 min brief

The bottom line

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Employers must follow a fair procedure even when termination is for poor performance — skipping PIPs is unfair dismissal.

What this practically means

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A software engineer was fired for performance issues after 6 years. The court said even when an employee is underperforming, the employer must give warnings, set clear improvement targets and a real chance to improve. Skipping that process makes the firing unfair, no matter how valid the underlying concern.

Executive summary

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The claimant, a senior engineer, was terminated in 2022 after a single formal warning para 6. The respondent argued performance had been discussed informally for months para 12. The Court found no documented Performance Improvement Plan existed and the show-cause notice gave only three working days to respond paras 22–24. Termination was held substantively justifiable but procedurally unfair under Section 45 of the Employment Act para 32. Twelve months' compensation was awarded para 40.

Key legal issues

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01

Whether informal performance discussions can substitute for a formal PIP.

Holding

No — formality and documentation are required para 22.

Reasoning

Section 41 of the Employment Act requires the employer to explain the grounds and give the employee a reasonable opportunity to be heard. Informal chats do not meet this standard paras 20–25.

Legal principles established

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  • Procedural fairness requires documented PIPs with clear targets and reasonable timelines para 22.
  • A three-day response window to a show-cause notice is unreasonable para 24.

Court orders

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  1. 1.The termination is declared procedurally unfair.
  2. 2.Compensation equivalent to 12 months' gross salary awarded.
  3. 3.Certificate of service to issue within 14 days.

Authorities

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Legislation

  • Employment ActSections 41, 45, 49

Cases cited (1)

  • Walter Ogal Anuro v Teachers Service Commission
    [2013] eKLR

Key timeline

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2016-03-01
Claimant hired as Software Engineer.
2022-08-15
Show-cause notice issued.
2022-08-18
Termination effected.
2024-05-22
Judgment delivered.

Practical implications

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For lawyers

Document everything

When advising HR, insist on documented PIPs of at least 30 days with measurable targets. Use paragraph 22-25 as the benchmark for procedural compliance.

For businesses

Update your termination SOP

Review your performance management policy: informal coaching notes will not save you in court. Require written PIPs, reasonable review periods and proper hearings before any termination.

For individuals

Know your rights

If you are dismissed for performance without a written plan, warnings and a real hearing, you likely have a claim for unfair dismissal. You have three years to file.

Frequently asked questions

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What is a PIP in Kenyan employment law?+

A documented Performance Improvement Plan setting out targets, timelines and support.

How long should a performance review period be in Kenya?+

Courts generally expect at least 30 days with clearly defined deliverables.

What damages can I claim for unfair dismissal in Kenya?+

Up to 12 months' gross salary under Section 49 of the Employment Act.

How long do I have to file an unfair dismissal claim in Kenya?+

Three years from the date of termination.

Cite this brief

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Cite this brief

Caselaw, "Otieno v Safaricom PLC", Case Analysis (2024). Cause No. 445 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/445/eng@2024-05-22

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