Kiriga v Family Bank Limited (Cause 1077 of 2018) [2026] KEELRC 938 (KLR) (17 April 2026) (Judgment)

REPUBLIC OF KENYA IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI CAUSE NO. 1077 OF 2018 (Before Hon. Lady Justice Agnes Kitiku Nzei) KEVIN NDUNGU KIRIGA ............................CLAIMANT VERSUS FAMILY BANK LIMITED ........................RESPONDENT JUDGMENT DRAFT 1. The Claimant sued the Respondent vide a Statement of Claim dated 5th June, 2018 and sought the following reliefs:- (a) Loss of employment ………………………… (Kshs.25 yrs x 145,000/= x 12) = Kshs.43,500,000/=. (b) Severance pay ………………………… (145,000 x 4.2.5 yrs x 15) = Kshs.355,539/=. (c) General damages for wrongful termination. (d) Costs of the suit. (e) Interest on (a) and (b) above. JUDGMENT Nairobi ELRC Cause No. 1077 of 2018Page 1 of 22 2. The Claimant pleaded:- (a) that he was first employed by the Respondent on 28th June, 2013 as an Assistant Manager, earning a monthly salary of Kshs.110,000/=, and was on or about 4th February, 2014 elevated to the position of Manager-Management Information and Analyst with effect from 1st February, 2014, earning a monthly salary of Kshs.145,000/=. (b) that due to his exemplary performance, the Claimant was awarded a commendation letter by the Respondent’s Chief Executive Officer (one Mr. Peter Munyiri), and was on 24th March, 2015 DRAFT given a change of role from Corporate Banking to Relationship Manager Corporate, while retaining his remuneration. (c) that the Claimant was on 31st January, 2017 moved from the position of Relationship Manager to Corporate Information Banking with effect from 6th February, 2017. (d) that on 10th March, 2017, the Claimant was summoned to review his performance, and it was agreed at the meeting that he was to ensure that JUDGMENT Nairobi ELRC Cause No. 1077 of 2018Page 2 of 22 his performance improved; and that another meeting was scheduled for 24th March, 2018 where the Claimant proved that he was able to perform by attaining a deposit of Kshs.19.9 million out of his set target of Kshs.30 million. (e) that the Claimant was commended for his exemplary performance as he was among the top Relationship Managers in excellence. (f) that on 28th April, 2017, the Claimant was issued with a letter of termination on account of poor performance. DRAFT (g) that the Claimant was not given an opportunity to explain anything regarding the issue, was not given any reason for termination, was not given an opportunity to be heard, and had not been given any warning. (h) that after termination, the Claimant was given tokens, being a Tuskys Shopping Voucher for Kshs.5,000/= and Dinner for two at Serena Hotel valued at Kshs.10,000/= for exemplary performance over the month of April, during JUDGMENT Nairobi ELRC Cause No. 1077 of 2018Page 3 of 22 which the Respondent claimed that the Claimant had underperformed. (i) that the Respondent’s act of terminating the Claimant’s employment contravened provisions of the Employment Act, provisions of the Claimant’s employment, good labour practice and principles of natural justice. 3. Documents filed alongside the Claimant’s statement of claim included an affidavit in verification of the claim, the Claimant’s written witness statement and a list of documents, listing 12 documents. The listed documents DRAFT included a letter of appointment dated 26th June, 2013, a letter of confirmation of employment dated 13th January, 2014, a commendation letter dated 8th January, 2015, minutes of a Review of Performance Meeting dated 24th March, 2017, the termination letter dated 27th April, 2017, a gift voucher from Tuskys for Kshs.5,000/=, a gift voucher from Nairobi Serena Hotel dated 8th May, 2017, a demand letter dated 2nd August, 2017 and copies of the Claimant’s payslips, among other documents. JUDGMENT Nairobi ELRC Cause No. 1077 of 2018Page 4 of 22 4. The Respondent filed a Response to the Claimant’s claim dated 30th November, 2018 and denied the claim. The Respondent further pleaded:- (a) that the Claimant’s employment was subject to the Bankers Code of Conduct and Staff Rules and Regulations (Human Resource Manual). (b) that the Claimant’s change of role from Corporate to Relationship Manager was not due to outstanding performance. (c) that during the meetings held on 10th March, 2017 and 24th March, 2017, the Claimant was urged to work hard in order to match the DRAFT performance levels of other relationship managers; and admitted that he was not happy with his own performance; and agreed to:- (i) Send daily lead tracker reports to the Senior Manager. (ii) Set up review meetings every fortnight to assess his performance. (iii) Constantly update the Head of Human Resource on his performance. JUDGMENT Nairobi ELRC Cause No. 1077 of 2018Page 5 of 22 (iv) Increase his deposit collection to a minimum of at lease 50% of his monthly target. (d) that the Claimant refused and/or failed to respond to communication from the Senior Manager- Corporate and Institutional Banking with regard to his performance; and neglected to perform the said duties in breach of his contract of employment. (e) that as a result of the Claimant’s neglect of duty, the Respondent received complaints from its branches, which relied entirely on the operations DRAFT and performance of the Claimant’s office. (f) that the Claimant’s termination was proper, lawful and in accordance with the terms of his employment and in conformity with the law. 5. The Respondent also filed witness statements of Elijah Kamau Kariuki and Emmaculate Damaris Mutinda (dated 27th November, 2023); and a list of documents dated 30th November, 2018, listing 9 documents. The listed documents included copies of the Claimant’s employment JUDGMENT Nairobi ELRC Cause No. 1077 of 2018Page 6 of 22 contract dated 26th June, 2013, an appointment letter dated 4th February, 2014, a transfer letter dated 23rd February, 2015, a transfer letter dated 24th March, 2014, a letter of change of role dated 31st January, 2017, minutes of meetings held on 10th and 24th March, 2017 respectively, and a bundle of emails. 6. The Claimant filed Reply to the Respondent’s Response, dated 9th April, 2019, and joined issues with the Respondent. 7. According to the Court’s record, trial opened before Dr. Jacob Gakeri, J on 11th April, 2024 when the Claimant DRAFT testified. The Claimant adopted his filed witness statement as his testimony and produced in evidence the documents referred to at paragraph 3 of this Judgment. The Claimant further testified that he was unfairly terminated; that the Respondent fabricated reasons to dismiss him and disregarded the law. That the employer had no reason to dismiss him, and that the termination was hasty and unprocedurally done. 8. Cross-examined, the Claimant testified:- JUDGMENT Nairobi ELRC Cause No. 1077 of 2018Page 7 of 22 (a) that the Respondent conducted regular performance appraisals, and that deposits were a moving target and varied (was adjusted) from month to month. (b) that the Claimant’s February/March 2017 target was Kshs.30 million, and that he did not meet the same, but there was growth in his deposits. That the Claimant had met 66% of his set target. (c) that the Claimant was terminated before he could set the meeting. (d) that the letter dated 28th April, 2017 stated the reason for dismissal as “continued DRAFT underperformance”. (e) that the contract did not state that his term of employment would be 25 years, or payment of gratuity. (f) that no warning was issued. 9. The defence case opened before me on 29th July, 2025. The Respondent’s witness, Emmaculate Damaris Mutinda (RW-1) adopted her filed witness statement as her testimony, and produced in evidence the Respondent’s JUDGMENT Nairobi ELRC Cause No. 1077 of 2018Page 8 of 22 documents referred to in paragraph 5 of this Judgment. The witness told the Court that she had been the Respondent’s HR since 2016. 10. Cross-examined by the Claimant, RW-1 testified:- (a) that she had participated in termination of employees for poor performance; and that before termination, an employee sits with his line manager, is addressed on his poor performance and is given an opportunity to improve. (b) that if the employee is given a show cause letter, a hearing follows and then separation. DRAFT (c) that the Claimant was not given a show cause letter, and there was no disciplinary hearing. (d) that there had been a discussion with the line manager and Head of HR. (e) that a disciplinary hearing is mandatory for non-performance. (f) that save for an email dated 7th February, 2017 by the Claimant’s line manager (Otieno Owino), there was no specific documentation to show JUDGMENT Nairobi ELRC Cause No. 1077 of 2018Page 9 of 22 that there was couching as alleged in the termination letter. (g) that the minutes of the meetings held on 10th and 24th March, 2017 did not document that the Claimant was to set up review meetings every fortnight; but that the issue was discussed. (h) that the witness was not sure whether a warning letter was issued to the Claimant, either before or after the meeting of 10th March, 2017. (i) that it was observed in the minutes of the meeting held on 24th March, 2017 that the Claimant’s DRAFT performance had improved, but not as per the bank’s expectations. That the witness (RW-1) was not aware of how much deposits the Claimant had achieved during March and April 2017 before his termination. (j) that there was communication between the Claimant and his line manager by an email dated 18th April, 2017. That the said email (by the Claimant’s line manager) addressed the Claimant on the setting up of the next JUDGMENT Nairobi ELRC Cause No. 1077 of 2018Page 10 of 22 meeting, but did not give the time lines within which the performance meeting was to be set up. (k) that although the Respondent Bank’s Policy is that an employee appeals within 14 days, the issue of a right of appeal was not captured in the (Claimant’s) separation letter. 11. Re-examined, RW-1 testified that the Claimant was terminated for underperformance, and that this issue is well captured in the termination letter. That the Claimant did not meet the Bank’s expectations. DRAFT 12. Having considered the pleadings filed and the evidence presented by both parties, issues that fall for determination, in my view, are:- (a) Whether termination of the Claimant’s employment by the Respondent was unfair. (b) Whether the reliefs sought are merited. 13. On the first issue, for a termination of employment to pass the fairness test; there must be both substantive justification JUDGMENT Nairobi ELRC Cause No. 1077 of 2018Page 11 of 22 and procedural fairness. Substantive justification has to do with establishment of a valid reason for the termination, while procedural fairness addresses the procedure adopted by the employer in effecting the termination (Walter Ogal Anuro – vs – Teachers Service Commission [2013] eKLR). 14. On substantive fairness, Section 43(1) of the Employment Act provides as follows:- “(1) In any claim arising out of a termination of a contract, the employer shall be required to prove the reason or reasons for the DRAFT termination, and where the employer fails to do so, the termination shall be deemed to have been unfair within the meaning of Section 45.” 15. Section 45(1) and (2)(a) of the Employment Act provide as follows:- “(1) No employer shall terminate the employment of an employee unfairly. (2) A termination of employment by an employer is unfair if the employer fails to prove – JUDGMENT Nairobi ELRC Cause No. 1077 of 2018Page 12 of 22 (a) that the reason for the termination is valid”. 16. In the present case, the Claimant is shown to have been employed by the Respondent Bank on 15th July, 2013 as an Assistant Manager-Management Information & Analyst, Credit Department-Head Office, vide a letter of Appointment dated 26th June, 2013. His job description on the aforestated position was set out in the said letter of appointment. 17. According to the Claimant’s pleadings and the evidence DRAFT presented by both parties, the Claimant was subsequently transferred by the Respondent from the aforestated initial position and initial duties/roles as follows:- (a) By a letter dated 4th February, 2014, the Claimant was transferred/appointed to the position of Manager-Management Information and Analyst. (b) By a letter dated 23rd February, 2015 and titled “Transfer and Change of Role”, the Claimant was transferred from the Credit JUDGMENT Nairobi ELRC Cause No. 1077 of 2018Page 13 of 22 Department-Head Office to Corporate Banking Department as a Corporate Analyst with effect from 2nd March, 2015; and his title was changed to Relationship Manager- Corporate Banking. (c) By a letter dated 31st January, 2017, the Claimant’s role was changed from that of Relationship Manager-Corporate Banking to Relationship Manager Corporate-Corporate and Institutional Banking with effect from 6th February, 2017. DRAFT 18. I have noted from the evidence on record that the Claimant’s new/subsequent job descriptions for the aforestated three new/subsequent positions/roles were not stated in the aforementioned transfer/change of role letters; or even shown to have been attached (annexed) to the letters. 19. I have also noted from the evidence presented herein that on 10th March, 2017, barely a month after the Claimant was moved to his last role with effect from 6th February, JUDGMENT Nairobi ELRC Cause No. 1077 of 2018Page 14 of 22 2017 (vide a letter dated 31st January, 2017), a meeting was held by the Respondent to review the Claimant’s performance. RW-1’s witness statement, which she adopted on oath as her testimony in Court, states as follows at paragraph 8 thereof:- “8. On the 10th March, 2017, the Respondent held a meeting to review the Claimant’s performance. It was established that the Claimant had not met his targets on deposit collection.” 20. The Respondent did not tell the Court which of the DRAFT Claimant’s roles involved collection of deposits, and was therefore the basis of the review; the role/position held by him as at 10th March, 2017 or the one held/performed prior to 6th February, 2017. The period of the review was also not stated. The Court was not told the basis of the review as no job description on the role/duties being measured was produced in evidence. No key performance indicators and the Claimant’s actual performance score card were produced in evidence. JUDGMENT Nairobi ELRC Cause No. 1077 of 2018Page 15 of 22 21. The Claimant’s termination letter dated 28th April, 2017 states that the Claimant’s employment contract was terminated “due to continued underperformance . . .” The validity of this allegation/reason for termination of employment was not proved by the Respondent. 22. Section 10(1)(c) of the Employment Act states that an employee’s job description of the employment must be stated in his contract of employment. 23. Sub-section (5) of the aforesaid Section states as follows; and in mandatory terms:- DRAFT “(5) Where any matter stipulated in subsection (1) changes, the employer shall, in consultation with the employee, revise the contract to reflect the change and notify the employee in writing.” 24. As already stated in this Judgment, the Claimant’s duties/roles as stated in the contract of employment dated 26th June, 2013 changed severally over the years; but the Claimant is not shown to have been notified (in writing) JUDGMENT Nairobi ELRC Cause No. 1077 of 2018Page 16 of 22 of his new job description/duties and key performance indicators thereof. The Claimant is not even shown to have been consulted before the changing of his position/role. 25. In my view, an employee cannot be accused and/or terminated for “underperforming” duties whose description he has not been given, and key performance indicators of which have not been given in writing by the employer before the job performance commences. 26. In view of the foregoing, I return a finding that the Respondent did not establish the validity of the alleged DRAFT reason for terminating the Claimant’s employment. There was, therefore, no substantive fairness in terminating the Claimant’s employment. 27. On procedural fairness, an employer who alleges poor performance against an employee must always comply with the mandatory procedure set out in Section 41 of the Employment Act before terminating the employment of such an employee. The said Section states as follows:- JUDGMENT Nairobi ELRC Cause No. 1077 of 2018Page 17 of 22 “41(1) Subject to Section 42 (1), an employer shall, before terminating the employment of an employee, on the grounds of misconduct, poor performance or physical incapacity explain to the employee, in a language the employee understands, the reason for which the employer is considering termination, and the employee shall be entitled to have another employee or a shop floor union representative of his choice present during this explanation. DRAFT (2) Notwithstanding any other provisions of this Part, an employer shall, before terminating the employment of an employee or summarily dismissing an employee under Section 44 (3) or (4) hear and consider any representations which the employee may on the grounds of misconduct or poor performance, and the person, if any, chosen by the employee within subsection (1) make.” JUDGMENT Nairobi ELRC Cause No. 1077 of 2018Page 18 of 22 28. The Respondent did not comply with the aforestated mandatory procedure, and did not give the Claimant an opportunity to be heard before terminating his employment. The Respondent did not, in all circumstances of the case herein, act in accordance with justice and equity in terminating the Claimant’s employment. 29. Section 45(4)(b) of the Employment Act provides that a termination of employment shall be unfair for all purposes of the Act if it is found that in all circumstances of the case, the employer did not act in accordance with justice and equity in terminating the employment of the employee. DRAFT 30. I find and hold that termination of the Claimant’s employment by the Respondent was substantively and procedurally unfair. 31. On the second issue, and having made a finding that termination of the Claimant’s employment was unfair, I award the Claimant the equivalent of nine (9) months’ salary as compensation (damages) for unfair termination of employment. I have taken into account JUDGMENT Nairobi ELRC Cause No. 1077 of 2018Page 19 of 22 the manner in which the Claimant’s employment was terminated; in an abrupt manner and without following the laid down procedure. The Claimant was not given any notice, and was not given an opportunity to be heard. This was extremely unfair. 32. It was a common ground that the Claimant was earning a monthly salary of Kshs.145,000/= at the time of termination. Copies of payslips produced in evidence by the Claimant indicate as much. The equivalent of nine (9) months’ salary is Kshs.145,000 x 9 =Kshs.1,305,000/=, which I award the Claimant for unfair termination of DRAFT employment. 33. The claim for severance pay is declined, as termination was not on account of redundancy under Section 40 of the Employment Act. 34. The claim for Kshs.43,500,000/= for loss of employment is declined, as such a remedy is not one of those provided for in Section 49(1) of the Employment Act; and in view of JUDGMENT Nairobi ELRC Cause No. 1077 of 2018Page 20 of 22 the award of compensation for unfair termination of employment already made herein. 35. In sum, and having considered written submissions filed herein by both parties, Judgment is hereby entered for the Claimant against the Respondent for Kshs.1,305,000/= being compensation for unfair termination of employment. 36. The awarded sum shall be subject to Pay As You Earn (PAYE) pursuant to Section 49(2) of the Employment Act. DRAFT 37. The awarded sum shall attract interest at Court rates from the date of this Judgment until payment in full. 38. The Claimant is awarded costs of the suit. DATED, SIGNED AND DELIVERED AT NAIROBI THIS 17TH DAY OF APRIL 2026 AGNES KITIKU NZEI JUDGMENT Nairobi ELRC Cause No. 1077 of 2018Page 21 of 22 JUDGE ORDER This Judgment has been delivered via Microsoft Teams Online Platform. A signed copy will be availed to each party upon payment of the applicable Court fees. AGNES KITIKU NZEI JUDGE Appearance: Mr. Kevin Kiriga (the Claimant) present in person Miss Mogina for the Respondent DRAFT JUDGMENT Nairobi ELRC Cause No. 1077 of 2018Page 22 of 22