The Employment and Labour Relations Court in Nairobi has ordered Twiga Foods Limited to pay a former sales representative, Maxton Duke Kibira, KSh1,026,000 for unlawful termination and irregular salary deductions.
Delivering the judgment, Justice Linnet Ndolo ruled that Kibira’s dismissal in December 2018 was both procedurally and substantively unfair.
Unfair Dismissal and Lack of Evidence
Kibira joined Twiga Foods in 2015, earning a monthly salary of KSh100,000. The company terminated his employment in 2018, citing poor performance.
However, the court found that the employer failed to provide any proof of underperformance or evidence of how his work was evaluated.
“The respondent neither furnished the court with the claimant’s job description nor demonstrated that an objective performance review system existed,” said Justice Ndolo.
The judge emphasized that before an employee can be dismissed for poor performance, due process must be followed — including identifying performance gaps, offering support for improvement, and giving the employee adequate time to rectify the issues.
Illegal Salary Deductions
The court also found that Twiga Foods unlawfully deducted KSh426,000 from Kibira’s salary, allegedly as a surcharge for unbanked revenue.
Justice Ndolo ruled that the deduction amounted to a disciplinary sanction, which can only be imposed after following the procedural fairness requirements outlined in Section 41 of the Employment Act.
“The decision to surcharge the claimant appears to have been unilateral, and by surcharging him and terminating his employment on the same issue, the respondent breached the rule against double jeopardy,” she stated.
Court Award and Compensation
The court awarded Kibira six months’ salary (KSh600,000) as compensation for unfair termination, and ordered the company to refund the irregular surcharge of KSh426,000, bringing the total to KSh1,026,000.
The amount will accrue interest until full payment, and Kibira will also receive costs of the suit.
