https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1685

Makau v NVS Kenya Ltd (Employment and Labour Relations Cause E622 of 2024) [2026] KEELRC 1685 (KLR) (19 June 2026) (Judgment) Neutral citation: [2026] KEELRC 1685 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nairobi Employment and Labour Relations Cause E622 of 2024 HS Wasilwa, J June 19, 2026 Between Antony Makau Claimant and Nvs Kenya Limited Respondent Judgment 1.The Claimant instituted this claim vide a Statement of Claim dated 7th August 2024 praying for judgment against the Respondents as follows: -i.A declaration that the Respondent’s termination of the Claimant from employment was unlawful, illegal, and improper;ii.An order for payment of Kshs. 6,468,780/- being 12 months’ salary as compensation for unfair termination;iii.An order for payment of Kshs. 255,100/ - for accrued leave days up to 12th July 2024,iv.An order for payment of Kshs. 577,126/- as short term incentive;v.An order for payment of Kshs. 568,596/- as one-year pension contribution;vi.Salary underpayment at Kshs. 2,719,017.58/-;vii.12.5% of the underpaid salary at Kshs. 339,877.20/-;as the pension contribution;viii.An order compelling the Respondent to issue a certificate of service;ix.Costs of the suit;x.Interest on (i), (ii), (iii), and (iv) above at court rates from the date of filing of this Claim until payment in full;xi.Any other or further relief that this Honorable Court may deem fit and just to grant. Claimant’s Case 2.The Claimant avers that vide a letter of offer dated 13th May 2014, he was employed by the Respondent as a Medical Representative. At the time of his departure, he was earning a basic salary of Kshs. 379,065 per month together with a car allowance of Kshs. 160,000 per month. He further enjoyed other benefits including annual leave, a performance incentive bonus, and other allowances in accordance with the Respondent's prevailing policies. 3.It is the Claimant's case that he consistently demonstrated commendable performance throughout his tenure, however, that notwithstanding his commitment and dedication, he was placed on a Performance Improvement Plan (PIP) running from 5th March 2024 to 4th June 2024, purportedly to address performance concerns. 4.The Claimant contends that the PIP process was neither fair nor transparent and contravened both legal requirements and the Respondent's own internal guidelines. 5.In that regard, the Claimant avers that the PIP was improperly initiated by Ms. Wangeci Perpetual, Therapeutic Area Head, contrary to the Respondent's guidelines of April 2023, which required initiation by the line manager, Mr. Oluwole Ajao. 6.He further avers that the PIP form was signed solely by Ms. Wangeci Perpetual and lacked the signature of his direct line manager; and there is no evidence of previous performance discussions with him was provided before the PIP was initiated. 7.He additionally contends that the PIP was initiated within a few months of his transfer to a new role, contrary to the Respondent's own guideline stipulating that a PIP may only be commenced after an associate has completed at least one year in their current role. Further still, the Claimant asserts that the sales summary relied upon to assess his performance was fundamentally flawed, as the poor performance attributed to him was in fact occasioned by out-of-stock products beyond his control and not by any failure on his part. 8.The Claimant avers that on 13th June 2024, he received a termination letter effective July 2024, citing unsatisfactory performance as the ground for his dismissal. He contends that the said termination violated the provisions of Sections 35, 41, 43, and 45 of the Employment Act, 2007, which mandate notice, a fair hearing, and an opportunity for an employee to defend himself. 9.He further avers that the Respondent did not issue any cautionary or warning letter prior to termination and that no proper finding of poor performance was established before the PIP was imposed upon him. 10.It is the Claimant's case that his termination was illegal, unfair, and unjustified, and that he was subjected neither to fair administrative action nor to a proper hearing as envisaged under Articles 47 and 50 of the Constitution. He maintains that he has consequently suffered financial and emotional distress as a result of the unlawful termination. 11.The Claimant further contends that the Respondent engaged in discrimination and underpayment in respect of his role as Cluster Marketing Manager and Brand Manager Cardiometabolic, East and Southern Africa Cluster, effective 1st January 2023 until the date of his termination. 12.He states that a Brand Manager based in South Africa received an annual salary of ZAR 906,984 in 2024 and ZAR 72,100 in 2023, equivalent to Kshs. 6,378,332.12 and Kshs. 6,136,407.72 respectively, computed at the prevailing exchange rate as of 7th August 2024, while he was paid considerably less for a comparable role. 13.Despite a demand having been made and a notice of intention to sue having been issued, the Respondent has failed to compensate the Claimant, hence rendering this suit necessary. Respondent’s Case 14.In opposition to the Claimant’s case, the Respondent filed a Statement of Defence dated 19th September 2024. 15.The Respondent denies the Claimant's allegations in their entirety and contends that the termination of the Claimant's employment on grounds of poor performance was warranted, justified, and carried out in accordance with its policies and the applicable provisions of law. The allegations of discrimination are equally denied as false and without any legal or factual basis. 16.The Respondent avers that the Claimant was employed vide an employment contract dated 17th December 2013 with effect from 13th January 2014 as a Medical Representative. He was subsequently confirmed after a three-month probationary period and discharged his duties in various roles over the years, serving as Cluster Marketing Manager and Brand Manager at the time of termination. 17.It is the Respondent's case that the Claimant was at all material times bound by the terms of his employment contract and the Respondent's policies, including the Performance Improvement Plan P & O Guidelines. 18.The Respondent states that the April 2023 PIP Guidelines designate the Performance Improvement Plan as a tool for use by managers for at least three months to assist associates to improve and correct unsatisfactory performance or competence issues. It avers that a PIP is initiated by a line manager once an associate fails to meet two consecutive quarters' near Term Objectives, shows critical competence issues over an inconsistent period, or falls under the Low Impact category during year-end performance discussions. The guidelines also provide for a review meeting at the end of the PIP where the outcome could be continuation of an associate’s services if the PIP targets are met, an extension of the PIP for an additional quarter, or termination of the Associate’s services. 19.The Respondent avers that key performance indicators and targets were agreed between the Claimant and the Respondent and that the Claimant took up the role of Brand Manager in 2020, overseeing the same Therapeutic Area and brands he had previously handled. Following the SSA Strategic Review conducted in 2022/2023, the Claimant assumed the Cluster Marketing role while maintaining his Brand Management rolewhere he continued with Uperio/Exforge and then changed to Galvus in 2024 as he had covered this range previously. The terms of his engagement were agreed upon and he is bound by the terms of his contract.. 20.It is further the Respondent's case that the Claimant had dual reporting lines, reporting to Mr. Oluwole Ajao as his functional manager in Marketing and to Ms. Perpetua Wangeci as his operational manager in the Therapeutic Area. 21.The Respondent contends that following evaluation of the Claimant in 2023, his performance was not as expected thus raising concerns as to his suitability for the role, and that the Respondent engaged with the Claimant to agree on appropriate remedial stepsto assist him improve and meet the requirements of his job. 22.It is the Respondent’s case that the Claimant was not the committed and dedicated employee he portrays himself to be; had several performance and disciplinary issues during his employment, for which he was issued with warning letters. 23.It avers that in 2022, the Claimant's medical insurance cover was cancelled for insurance fraud, creating an embarrassing situation for the Respondent, which had to intervene and negotiate with the insurance provider to reconsider the cancellation. 24.The Respondent avers that the Claimant was issued with a show cause letter dated 12th September 2023 for insubordination towards his Therapeutic Area supervisor in several meetings held between June and September 2023. The Claimant responded vide an email dated 13th September 2023 by citing personal issues and apologised for his conduct, and following a disciplinary hearing held on 26th September 2023, he was issued with a first warning letter dated 25th October 2023, valid for six months. 25.The Respondent further avers that on 9th February 2024, and whilst still within the validity period of his first warning letter, the Claimant failed to attend an important cycle meeting in which he was a lead participant, without advance notice or explanation. When his supervisor inquired as to his whereabouts more than two hours after the scheduled start of the meeting, the Claimant indicated that he had overslept, and further disclosed that going out at night and alcohol consumption may have affected his abilities. Consequently, he was issued with a final warning letter dated 8th March 2024. 26.It is the Respondent's case that on 1st March 2024, a meeting was held with the Claimant to address the performance concerns captured in the Q3 actions and year-end check-in reports for 2023that were availed to the Claimant as he had not improved on them as expected. At that meeting, it was agreed that the Claimant be placed on a Performance Improvement Plan. 27.The Respondent avers that the Claimant acknowledged the objectivity of the process, lauded it as a well-thought intervention designed to give him all the support he needed, subsequently sought and received clarification on its scope, and ultimately signed the PIP form as confirmation that he understood the reasons for the PIP and the expectations arising therefrom. The Respondent contends that the Claimant is estopped from alleging otherwise. 28.The Respondent avers that the Claimant was actively engaged and received feedback throughout the PIP period. His direct line manager, Mr. Oluwole Ajao, held monthly meetings with him to monitor his progress and provide feedback. Additionally, the Respondent engaged its TA Head of Neuroscience, Mr. Alfred Wabulembo, to coach the Claimant and provide him with further support. 29.It is the Respondent's case that the PIP was closed in a physical meeting held on 10th June 2024, the Claimant himself stated that he was highly supported, that everyone gave their best, that the objectives were clear, and that all issues on which he had sought clarification were resolved to his satisfaction. 30.It is the Respondent’s case that notwithstanding the support accorded, the Claimant’s performance remained inconsistent and he failed to attain the goals set under the PIP. His performance was assessed by his managers, including Oluwole Ajao and Perpetua Wangeci, who identified several gaps in the achievement of the agreed objectives. Consequently, a decision was reached to terminate his employment on grounds of poor performance. 31.The Respondent maintains that the PIP process was undertaken strictly in accordance with its PIP Guidelines. It states that the Claimant had failed to meet two consecutive quarters’ objectives and exhibited competence and behavioural concerns, thereby justifying the institution of the PIP. 32.It further avers that the PIP was initiated by the appropriate manager, ran for the prescribed minimum period of three months, involved regular monitoring meetings and culminated in a review meeting attended by the Claimant, his managers and HR. It contends that termination was one of the outcomes expressly contemplated under the Guidelines where an employee failed to improve despite support. 33.The Respondent states that by a letter dated 13th June 2024 the Claimant was notified of the decision to terminate his employment and was required to serve one month’s notice. It avers that although the Claimant declined to sign the termination letter, he subsequently communicated that he would leave employment on 12th July 2024. 34.The Respondent denies all allegations that the PIP process was irregular, improperly initiated, inadequately documented or premature; and asserts that the PIP was initiated by the Claimant’s Line Manager, Mr. Oluwole Ajao, co-signed by Ms. Perpetua Wangeci and HR, and was supported by prior performance discussions, Q3 Action Reports and year-end check-in reports. 35.It further contends that the Claimant was adequately informed of the performance concerns before, during and after the PIP process and actively participated in the process. 36.On the allegations of discrimination and underpayment, the Respondent states that the Claimant was remunerated in accordance with the terms of his contract and applicable market benchmarks. It avers that his salary was periodically reviewed upwards throughout his employment and that his compensation package included additional benefits such as car allowance, provident fund contributions and medical cover. 37.The Respondent further contends that the Claimant’s comparison with Ms. Meagan Garrido of South Africa is misplaced as they worked in different markets, handled different portfolios and had different levels of experience. It therefore denies any discrimination or underpayment. 38.It is the Respondent’s case that the Claimant’s disclosure of another employee’s salary information was unlawful, violated confidentiality obligations under his contract and amounted to a breach of privacy. 39.The Respondent also relies on what it describes as the Claimant’s previous conduct, including the cancellation of his medical insurance cover in 2022 due to alleged insurance fraud, the performance concerns reflected in the 2023 reports, the warning letter issued for insubordination in October 2023 and the final warning letter issued in March 2024. 40.Regarding the reliefs sought, the Respondent contends that the termination was lawful, justified and procedurally fair. It states that the Claimant was accorded opportunities to improve through the PIP process and was regularly engaged and heard, therefore, it denies liability for compensation for unfair termination. 41.The Respondent further states that upon termination, the Claimant was paid all his lawful dues including salary for June 2024, salary for days worked up to 12th July 2024 and accrued leave days, all of which were reflected in his payslips; Therefore, the claim for leave pay is spent. 42.It further states that there is no dispute regarding the issuance of the Claimant’s Certificate of Service. 43.The Respondent avers that the claim for pension contributions is misconceived as pension benefits are administered separately and the Claimant had been advised on the process of accessing the same through the trustees of the pension scheme. 44.With regard to the claim for short-term incentive, the Respondent states that the Short-Term Incentive Scheme is discretionary, dependent upon business, team and individual performance, and is only available to employees who remain in employment up to 31st March of the qualifying year. It therefore contends that the Claimant did not qualify for the benefit. 45.The Respondent consequently denies liability for compensation for alleged underpayment, discrimination, pension contributions, leave pay, short-term incentives, costs or interest. It asserts that the Claimant’s claim is devoid of merit and prays that the same be dismissed with costs. 46.The Respondent contends that the Claimant's performance during the PIP was nonetheless inconsistent and exhibited many gaps in the set goals. It was accordingly resolved that his contract be terminated on grounds of poor performance. 47.The Respondent maintains that each of the irregularities alleged by the Claimant in respect of the PIP process is denied and avers that the PIP was properly initiated by the Claimant's immediate line manager, Mr. Oluwole Ajao, and co-signed by Ms. Perpetua Wangeci and the Respondent's HR, Leah Heho. 48.It further avers that the PIP documentation was proper, that prior performance discussions had been held with the Claimant, and that the PIP was not premature as the Claimant had previously covered the relevant product range and the PIP was based on his inconsistent performance in his brand management role in 2023 and 2024. 49.The Respondent states that on 13th June 2024, the Claimant was notified of the decision to terminate his employment and was required to serve his one-month contractual notice period, with his terminal dues outlined in the termination letter. It avers that the Claimant declined to sign the termination letter but subsequently confirmed to the Respondent's HR that he would leave employment on 12th July 2024. 50.On the question of remuneration, the Respondent states that the Claimant was at all times paid in accordance with the mutually agreed terms of his employment contract. It contends that the Claimant's salary conformed to the external benchmark for similar roles in Kenya at 103%, and that his compensation was reviewed upwards on numerous occasions during his career. 51.It further avers that the Claimant's full compensation package, inclusive of car allowance, provident fund contribution, and medical cover, placed the total cost of his employment to the Respondent at Kshs. 6,230,174 as at 19th June 2020, with his accrued pension standing at Kshs. 9,513,810.93 as at 31st July 2024. 52.The Respondent denies the allegation of discrimination or underpayment in relation to Ms. Meagan Garrido of South Africa and contends that the two operate in entirely different markets, handling different products and with different scopes of work. 53.It asserts that each employee's contract is negotiated separately, taking into account individual academic qualifications, years of experience, and fitness for role, and that Ms. Garrido commenced employment with the Respondent in a senior role in 2011, while the Claimant only joined in 2013 at a junior level. 54.The Respondent additionally raises the disclosure of Ms. Garrido's confidential salary information as inadmissible, illegal, and a violation of the Claimant's obligations under clause 13 of his contract, and indicates its intention to seek to strike out the same. 55.In respect of terminal dues, the Respondent avers that the Claimant's salary for June 2024, salary for days worked until 12th July 2024, and leave pay amounting to Kshs. 255,100 were all duly paid. 56.It further contends that the claim for pension contribution has no legal or factual basis as the accrued pension was to be calculated and paid separately through the pension fund trustees, and that the short-term incentive bonus is a discretionary reward that does not form part of guaranteed remuneration and is not payable on a pro-rata basis, the Claimant having failed to meet his targets and having left employment before 31st March 2025. 57.The Respondent maintains that the Claim herein is devoid of merit and ought to be dismissed with costs. Evidence in Court 58.The Claimant (CW1) adopted his witness statement dated 7th August 2024 as his evidence in chief; he also produced his documents dated even date as his exhibits 1-15. 59.During cross-examination, CW1 testified that his termination letter indicated the reason for termination and the amount payable to him, however, he only saw the payslip dated 12th July 2024 in court. 60.He further testified that he was issued with a certificate of service and his employer informed him how to get his pension including providing his statement. 61.CW1 testified that he relied on another employee’s payslip, however, he did not produce in court her employment contract or job description; he was not aware of her experience and neither did he interview her. Further, he did not share an expert report on the cost of living in Kenya and South Africa or CBK exchange rate on the said date. 62.The Respondent’s witness, Linah Shihachi (RW1) adopted her witness statement dated 25th May 2025 as her evidence in chief and produced the Respondent’s bundle of document dated 19th September 2024 as her exhibits. 63.Upon cross-examination, she testified that the Claimant was not subjected to a disciplinary process. Further, she was not involved in the Claimant’s PIP process and that the same was done by Oluwole and Perpetua who have since left the Respondent organization. 64.RW1 testified that the Claimant’s direct manager was the one to initiate the PIP, however, the emails were raised by Ms. Perpetua, who was not the Claimant’s direct manager Claimants’ Submissions 65.The Claimants submitted on five issues:whether the termination of the Claimant’s employment was substantively and procedurally fair; whether the Performance Improvement Plan complied with the law and the Respondent’s internal policy; whether the Claimant was subjected to discriminatory remuneration; what reliefs are available to the Claimant if any in the circumstances of this matter; and who should bear the costs of this suit. 66.On the first issue, the Claimants submitted that Section 43 of the Employment Act imposes an unequivocal obligation upon an employer to prove the reasons for termination, failing which termination is deemed unfair within the meaning of Section 45. Further, under Section 47(5), whilst the employee bears the initial burden of demonstrating that termination occurred, that burden shifts to the employer to justify the same. He placed reliance on Pius Machafu Isindu v Lavington Security Guards Limited [2014] eKLR and Postal Corporation of Kenya v Andrew K. Tanui [2019] eKLR in support of this proposition. 67.It was submitted that the Respondent failed entirely to discharge this burden, no valid reason having been demonstrated under Section 43, nor any fair reason within the meaning of Section 45. On Section 43(2) specifically, the Claimant argued that the Respondent was required to prove a genuine belief in the alleged poor performance at the time of termination. He relied on Coca Cola East & Central Africa Limited v Maria Kagai Ligaga [2015] eKLR for the principle that such belief must be founded on honest and genuine grounds formed after reasonable investigation, and that ignoring exculpatory evidence, such as the Claimant’s documented 102% performance and explanation regarding product stock-outs, negates the requisite genuine belief. 68.The Claimant submitted that the evidentiary record entirely undermines the Respondent's sole justification for termination being alleged poor performance on four grounds. First, his unrebutted testimony established that his 2024 performance stood at 102%, a fact confirmed by the Respondent's own witness under cross-examination. Second, any perceived underperformance in the preceding period was attributable to product stock-outs beyond his control, which the Respondent failed to rebut. Third, the Respondent's own documentation was internally inconsistent, simultaneously criticizing and commending his performance. Fourth, the reliance on prior warning letters was misplaced, no causal nexus having been established between those warnings and the alleged performance deficiencies leading to termination. He relied on Walter Ogal Anuro V Teachers Service Commission [2013]eKLR for the principle that termination must satisfy both substantive justification and procedural fairness. 69.It is the Claimant’s submission that the alleged reason for termination is not only unsubstantiated but is demonstrably false when juxtaposed against the evidence on record. Therefore, the termination lacked substantive justification and is consequently unfair within the meaning of Sections 43 and 45 of the Employment Act. 70.On procedural fairness, the Claimant submitted that Section 41 of the Employment Act prescribes a mandatory framework requiring that an employee be informed of the allegations, allowed to respond, and heard in the presence of a representative of his choice. 71.He argued that the Respondent's own witness conceded under cross-examination that no disciplinary hearing was conducted prior to termination, which admission he characterized as fatal and dispositive of the issue. He cited Kenfreight (E.A) Limited v Benson K. Nguti [2016] eKLR, where the Court of Appeal held that compliance with Section 41 is mandatory and not optional, that failure to accord an employee a hearing renders termination procedurally unfair regardless of the reasons advanced, and that payment in lieu of notice does not cure a procedurally defective termination. 72.Relying on National Bank of Kenya v Samuel Nguru Mutonya [2019] eKLR, the Claimant further submitted that the Respondent's attempt to rely on the PIP process as a substitute for a disciplinary hearing is legally untenable, a PIP being a performance management mechanism incapable of supplanting the mandatory safeguards under Section 41. 73.The Claimant argued that the termination letter of 13th June 2024 was issued without any such opportunity, in violation of Articles 47 and 50 of the Constitution, and submitted that the Respondent failed on both the substantive and procedural limbs. 74.On the second issue, the Claimant submitted that the PIP process was fundamentally defective, as demonstrated through both oral and documentary evidence. He relied on Jane Samba Mukala v Ol Tukai Lodge Limited [2013] eKLR and Nicholus Muasya Kyula V Farmchem Ltd [2012] eKLR for the propositions that an employer must demonstrate the measures put in place to support an employee before termination, and that the employee must be appraised, informed of shortcomings, and given a reasonable opportunity to improve. 75.He identified four specific defects. First, the PIP was initiated by an individual who was not his direct supervisor, contrary to the Respondent's own policy. Second, he had served in the relevant role for only four months, contrary to the guideline requiring minimum tenure before PIP initiation. Third, no structured performance reviews were conducted prior to placing him on PIP. Fourth, the Respondent's witness admitted lack of direct involvement in the PIP process, thereby weakening the evidentiary foundation of the Respondent's case. He cited Samuel G. Momanyi V Attorney General & Another [2012] eKLR for the principle that performance management must be conducted fairly, objectively, and in accordance with due process. 76.It is the Claimant’s submission that these cumulative defects render the PIP invalid, unlawful, and incapable of forming a legitimate basis for termination. He argued that the circumstances of his PIP being that it was initiated within four months of his assuming the role, by a person other than his direct line manager, and without prior structured performance reviews, demonstrate that it was not a genuine performance management tool but a calculated strategy to manufacture grounds for termination. 77.On the third issue, the Claimant submitted that he adduced documentary evidence demonstrating a significant remuneration disparity between himself and a comparator, Ms. Meagan Garrido, occupying a similar role within the same operational cluster. 78.It is the Claimant’s submission that in Ol Pejeta Ranching Limited v David Wanjau Muhoro [2017] eKLR, where the Court of Appeal held that once an employee establishes a prima facie case of discrimination, the burden shifts to the employer to justify the differential treatment, and that paying different remuneration for the same work or work of equal value is plainly discriminatory and an unfair labour practice. Further, Section 5(7) of the Employment Act places the burden on the employer to prove that discrimination did not occur once a prima facie case is established. 79.The Claimant submitted that his case on discrimination is not merely speculative but is grounded in documentary evidence demonstrating a clear disparity in remuneration between himself and a comparator employee within the Respondent’s global structure and relied on Ol Pejeta Ranching Limited v David Wanjau Muhoro [2017] eKLR. 80.It was submitted that whereas the Claimant earned Kshs. 4,332,168 in 2023 and Kshs. 4,548,776.40 in 2024, whereas the comparator Ms. Meagan Garrido, earned 872,100 South African Rand in 2023 equivalent to Kshs. 6,136,407.72 and 906,984 South African Rand in 2024 equivalent to Kshs. 6,378,332.12, based on the prevailing exchange rate as at 7th August 2024, being the closest available official rate contemporaneous with the compensation review period, reflecting a disparity of approximately 41.7% and 40.2% respectively. 81.He further argued that his role as Cluster Marketing Manager & Brand Manager Cardiometabolic ESA was substantially similar in scope, responsibility, and functional output to that of the comparator, as evidenced by the Respondent's own Global & People Guideline and the respective job grading and role classification produced in this court. 82.He submitted that while the comparator is based in a different jurisdiction, the Respondent’s own Global & People Guideline establishes a harmonized grading and role evaluation framework applicable across its international operations, thereby significantly diminishing the relevance of jurisdictional distinctions and placing the Claimant and the comparator within the same evaluative matrix. 83.The Claimant submitted that the Respondent has not adduced any evidence to justify the remuneration disparity on the basis of geographical or jurisdictional differences. To the contrary, the Respondent’s own Global & People Guideline establishes a harmonized grading framework that places the Claimant and the comparator within the same evaluative matrix, thereby negating any claim that jurisdictional differences alone explain the 40% disparity. Additionally, the applicable legal test is not confined to identical roles but extends to work of equal value, assessed through responsibility, skill, effort, and working conditions, all of which place the Claimant and the comparator within the same evaluative band. 84.The Claimant further argued that the Respondent's conduct constitutes an unfair labour practice within the meaning of Article 41 of the Constitution, relying on the Supreme Court's definition in Kenya Ports Authority v Munyao & 4 others [2023] KESC 112 (KLR) of unfair labour practice as encompassing all conduct contrary to the principle of fair dealing between capital and labour. 85.He submitted that the Respondent's failure to justify the remuneration disparity violates his rights under Articles 27, 41, and 47 of the Constitution, and invited the court to find that he was subjected to unfair and discriminatory remuneration practices in violation of both statute and equity. 86.On reliefs, the Claimant relied on Kenya Revenue Authority v Menginya Salim Murgani [2010] eKLR, where the court held that the remedies for unfair termination are discretionary and must be guided by the circumstances of each case and submitted that established unlawful termination, he is entitled to remedies under Section 49 of the Employment Act. 87.He further submitted that the maximum award is justified considering his long service, the egregious nature of the Respondent's conduct, and the absence of any valid reason for termination, relying on D.K. Njagi Marete v Teachers Service Commission [2013] eKLR, where the court held that the court must consider the length of service and the manner of termination in awarding compensation." 88.The Claimant accordingly prayed for compensation equivalent to 12 months' salary at Kshs. 6,468,780; a short-term incentive of Kshs. 577,126/-; pension contribution of Kshs. 339,877.20; and compensation for underpayment of Kshs. 2,719,017.58. 89.On costs, the Claimant submitted that costs follow the event pursuant to Section 27 of the Civil Procedure Act, and that having been compelled to institute these proceedings due to the Respondent's unlawful conduct, he is entitled to costs. He relied on Republic v Rosemary Wairimu Munene (Ex Parte Applicant) v Ihururu Dairy Farmers Co-Operative Society Ltd Judicial Review Application No 6 of 2004, where Mativo J. held: "the issue of costs is the discretion of the Court and is used to compensate the successful party for the trouble taken in prosecuting or defending the case and not to penalize the losing party." Respondent’s Submissions 90.The Respondent submitted on three issues: Whether the Respondent had valid reasons to warrant the termination of the Claimant’s employment contract; interrogating: the Claimant’s role and reporting structure; the Claimant’s performance assessment pre-2024; and the Claimant’s performance improvement plan assessment and outcome; Whether the Respondent followed due process in effecting the termination; and Whether the Claimant is entitled to the reliefs sought. 91.On the Claimant's role and reporting structure, the Respondent submitted that the Claimant was employed on 13th January 2014 as a Medical Representative, promoted on 19th October 2015 to First Line Manager-Cardiovascular Metabolism team, and on 16th December 2022 appointed as Marketing Manager/Brand Manager-Cardiometabolic Therapeutic Area ESA, reporting to the Head of Marketing SSA, Ajao Oluwole. Following the restructure of the Respondent's Sub-Saharan Africa operations between 2022 and 2023, the Claimant assumed the role of Cluster Manager/Brand Manager-Cardiometabolic Therapeutic Area ESA under Perpetua Wangeci Ndung'u as TA Head. 92.It was submitted that the Claimant continued overseeing the same therapeutic area and brands he had previously handled, a fact he admitted on oath, and that his role carried a dual reporting structure to Ajao Oluwole as functional manager and to Perpetua Wangeci as operational supervisor in the Therapeutic Area, as evidenced by the organograms at pages 36 and 37 of the Respondent's Documents. The Respondent argued that no concerns regarding this dual reporting matrix were ever raised during the Claimant's employment and that his averments to the contrary, being unsupported by any documentary evidence, amount to an afterthought. 93.On the Claimant's performance assessment pre-2024, the Respondent submitted that the Claimant was at all material times bound by the PIP Policy, which designates the PIP as a tool for managers to assist associates in improving unsatisfactory performance for at least three months, with outcomes at the end of the PIP being continuation, extension, or termination. 94.It was submitted that the Claimant admitted on cross-examination that the PIP was initiated following his unfavourable performance assessment for two consecutive quarters in the year ending 2023, that he acknowledged in writing on 12th July 2023 the numerous Q3 performance issues identified by Perpetua Wangeci and undertook to improve, and that at a meeting with his line manager on 12th December 2023, further concerns were raised regarding his Q4 performance. The specific concerns noted across both assessments were that the Claimant considerably and repeatedly delayed in meeting set deadlines, failed to engage proactively and communicate well with his team, and failed to acquaint himself with the Respondent's Code of Ethics. The Respondent argued that it is therefore not true that the Claimant was subjected to an unwarranted PIP process, no evidence to the contrary having been placed before the court. 95.On the Claimant's PIP assessment and outcome, the Respondent submitted that the Claimant admitted during cross-examination that he agreed to be placed on the PIP, that the decision was reached in consultation with him at a meeting on 1st March 2024, that he acknowledged the objectivity of the process and lauded it as a well-thought-out intervention, sought and received clarification on its scope, and ultimately signed the PIP Initiation Form as confirmation of his understanding of the reasons for and expectations arising from the PIP. It was argued that the Claimant is accordingly estopped from alleging otherwise. 96.On the propriety of the PIP initiation, the Respondent submitted that the PIP was not premature as the Claimant had discharged his duties as a manager in the cardiometabolic therapeutic area since 2015 and was well aware of the expectations of the role, having covered the Galvus range previously within the same Therapeutic Area and mandate. 97.It was further submitted that the PIP was properly initiated by the Claimant's immediate line manager Oluwole Ajao in line with the PIP Policy and co-signed by Ms. Perpetua Wangeci and HR Leah Heho, as evidenced by the signatures at page 71 of the PIP Initiation Form, and that the claim of improper initiation is unsupported by the evidence before the court. 98.The Respondent submitted that the Claimant admitted receiving support during the PIP, acknowledged the engagement of Alfred Wabulembo as coach and expressed appreciation for that support, admitted that monthly check-in meetings were held with his line manager, and never raised any concerns about the PIP process or the support received. It was submitted that at the PIP closure meeting of 10th June 2024, the Claimant received his overall assessment and, based on his unsatisfactory performance notwithstanding the support afforded, it was resolved to terminate his contract on grounds of poor performance. 99.It is the Respondent’s submission that Section 41 of the Employment Act of 2007 recognizes poor performance as a ground for termination of an employee’s contract of service. A charge of poor performance presupposes that the parties to a contract of service had agreed on achievable performance targets which the employee has failed to meet. In addition, the parties must have developed a performance appraisal mechanism against which the employee’s performance has been measured and found to be unsatisfactory despite assistance by the employer. 100.In support of the substantive justification for termination, the Respondent relied on Jane Samba Mukala v Ol Tukai Lodge Limited [2013] eKLR, where Mbaru J. held that “ where poor performance is shown to be a reasons for termination, the employer is placed at a high level of proof as outlined under section 8 of the Employment Act to show that in arriving at this decision of noting the poor performance of an employee, they had put in place an employment policy or practice on how to measure good performance as against poor performance.” 101.The Respondent submitted that there were agreed achievable key targets, a guiding instrument for performance assessment, and that despite the necessary support, the Claimant failed to meet the required PIP standards, his full participation being evidenced by his acknowledgment and signature on all relevant PIP documentation. 102.It is therefore the Respondent’s submission that the termination of the Claimant’s employment was grounded in substantive justification, in full compliance with Section 45. Furthermore, the Respondent has discharged its evidentiary burden under Sections 43(2) and 47(5) of the Act, which mandate that an employer provide sufficient proof of the reasons justifying the termination of an employee’s contract. 103.Relying on Musumbi v Astrazeneca Pharmaceuticals Limited [2025] KEELRC 2300 (KLR), the Respondent submitted that when assessing the reasonableness of an employer's actions, a court must refrain from substituting its own judgment for that of the employer. 104.On the second issue, the Respondent submitted that the termination was procedurally fair within the meaning of Section 41 of the Employment Act. It was submitted that on 10th June 2024, the Claimant was formally invited to a performance review meeting constituting a genuine final opportunity to address concerns regarding his performance, and that rather than offering any rebuttal or plan for rectification, the Claimant candidly admitted his continued inability to meet set targets, his own concessions confirming that further training or time would be futile. 105.It was further submitted that the reasons for termination were reiterated in the termination letter, the Claimant was terminated with notice, his terminal dues were computed and paid out in full, and his pension records were availed to enable him to claim his pension dues. The Respondent urged the court to examine the totality of the evidence of RW1 together with the documents produced as demonstrating full adherence to the procedural fairness requirements under Section 41. 106.On the final issue, the Respondent submitted that under Section 47(5) of the Employment Act, the burden of proving unfair termination rests on the employee, and that it is only upon discharge of that burden that the onus shifts to the employer. It relied on Kennedy Maina Mirera v Barclays Bank of Kenya Limited [2018] eKLR, where this court held:"the Plaintiff must adduce prima facie evidence that tends to show that his employment was not terminated for a valid reason and that the employer did not follow a fair procedure in terminating his employment." 107.It was submitted that the Claimant failed entirely to discharge this burden, his claim being premised on unsubstantiated allegations he failed to prove, having neither demonstrated that his performance was stellar or at par with the company's requirements nor established that his termination was occasioned by any alleged conflict with Perpetua Wangeci. 108.On the declaration of unlawful termination and 12 months' compensation, the Respondent submitted that the termination was justified, lawful, and followed due process, the PIP process having consistently afforded the Claimant an opportunity to be heard, give feedback, and receive feedback, all of which he acknowledged by signing all relevant PIP documentation. The Claimant is accordingly not entitled to a declaration of unlawful termination nor to the sum of Kshs. 6,468,780. 109.It was further submitted that without prejudice, should the court find any breach in the process, which is denied, compensation should not exceed one month's salary commensurate with the contractual notice period, relying on CMC Aviation Limited v Mohammed Noor [2015] eKLR, where the Court of Appeal held that "…..since the contract of employment was terminable by one month's notice, an award of one month's salary in lieu of notice would have been reasonable compensation." 110.On accrued leave pay, the Respondent submitted that the Claimant admitted on cross-examination that he received Kshs. 255,100 as payment for accrued leave days, no evidence having been presented to show entitlement to any further payment, and that any double payment would amount to unjust enrichment. 111.On short-term incentive, the Respondent submitted that the Claimant admitted on oath that Clause 6.2 of his contract provides that incentive payments are discretionary, that the short-term incentive does not form part of guaranteed remuneration and is not payable on a pro-rata basis, that eligibility requires both continued employment until 31st March and meeting of performance targets for the entire period under review, and that the Claimant satisfied neither condition. He is accordingly not entitled to the sum of Kshs. 577,126 claimed. 112.On pension contribution, the Respondent submitted that the claim for Kshs. 568,596 has no legal or factual basis, the Claimant having acknowledged that the termination letter provided for separate calculation and payment of accrued pension, and having admitted that the Respondent forwarded his pension statements and availed the necessary support to enable him to claim his dues from the pension administrator, Octagon Africa, a separate entity against whom any pension claims ought properly to be directed. No evidence was adduced of inability to access or denial of pension dues. 113.On salary underpayment and discrimination, the Respondent submitted that the Claimant was at all times paid in accordance with his mutually agreed contract, that his salary conforms to the external benchmark for similar roles in Kenya at 103% conformity, and that his compensation was reviewed upwards on numerous occasions, all of which the Claimant acknowledged on oath. 114.It was submitted that the Claimant himself admitted that he and Ms. Garrido worked in different markets under separate contracts handling distinct products and responsibilities, and that he had no knowledge of Ms. Garrido's negotiated terms or professional background. RW1 clarified that contracts are individually negotiated taking into account qualifications, experience, and suitability, that Ms. Garrido joined the Respondent in 2011 in a senior capacity while the Claimant joined in 2013 at a junior level, and that the salary difference is entirely rational. 115.It is the Respondent’s submission that differential treatment does not per se amount to discrimination, relying on Mohammed Abduba Dida v Debate Media Limited & another [2018] eKLR, where the Court of Appeal established a three-stage enquiry as follows: “From the above cited authorities two fundamentals become apparent, one is that provisions or rules that create differences amongst affected persons do not of necessity give rise to the unequal or discriminatory treatment prohibited by Article 27, unless it can be demonstrated that such selection or differentiation is unreasonable or arbitrary and created for an illegitimate or surreptitious purpose. And the second is that, whether or not there has been a violation of the Constitution should be determined by applying a three stage enquiry to the circumstances of each case. The three stage enquiries are; firstly, whether the differentiation created by the provision or rules has a rational or logical connection to a legitimate purpose; if so, a violation of Article 27 will not have been established. If not, a second enquiry would be undertaken to determine whether the differentiation gives rise to unfair discrimination. If it does not, there is no violation of the constitution. But if the selection or differentiation gives rise to unfair discrimination, then the third enquiry would be necessary to determine whether it can be justified within the limitation provisions of the constitution.” 116.On the threshold for proving discrimination, the Respondent relied on Mwangi v Mpala Research Centre [2024] KEELRC 845 (KLR), where the court, guided by the Supreme Court definition of discrimination in the case of Gichuru v Package Insurance Brokers Ltd [2021] KESC 12 (KLR) held: “…..discrimination occurs where there is differential treatment without any justification. It is further my view that the burden of proof lies with the party alleging discrimination to prove that he/she was subjected to different treatment without any justification. He/she must show that: a. The work involved is the same in all aspects or is of the same value, b. He/she holds the same or comparable academic qualifications with the favoured counterparts. c. He/she has the same or comparable professional qualifications. d. He/she has the same or comparable work experience with the favoured counterpart. e. The comparator is not hypothetical but real.” 117.The Respondent thus submitted that the Claimant satisfied none of these criteria, having failed to produce Ms. Garrido's contract, job description, academic or professional qualifications, or evidence of comparable work experience, his claim for discrimination accordingly being premised entirely on speculation unsupported by tangible evidence. 118.The Respondent further submitted that the Claimant failed to explain how he obtained a colleague's confidential payslip without authorization, such disclosure being inadmissible, unlawful, a breach of privacy, and a violation of clause 13 of his employment contract, obligations which subsist even after termination. 119.It was further submitted that the Claimant failed to demonstrate how he arrived at the figures of Kshs. 2,719,017.58 as salary underpayment and Kshs. 339,877.20 as pension contributions thereon, relying on China Wu Yi Limited & another v Irene Leah Musau [2022] eKLR for the trite principle that special damages must be specifically pleaded with particularity and strictly proved, they being neither the direct natural nor probable consequence of the act complained of and incapable of being inferred. 120.On the certificate of service, the Respondent submitted that a Certificate of Service was duly issued to the Claimant following his clearance, rendering any claim under this head without basis. 121.I have examined all the evidence and submissions of the parties herein. The claimant’s case is that he was terminated for no apparent reason and without following procedure. 122.The respondents contend that the claimant was terminated fairly and while following the right procedure. The claimant was terminated vide a letter of termination dated 13th June 2024 which indicated that his termination was due to his 2023/24 performance which was considered as unsatisfactory. The letter further stated that he had been placed on a three months performance improvement plan (PIP) from 5th March to 4th June 2014. 123.That during the PIP, he received coaching and developmental interventions by both his operational and functional manager and had monthly meetings with both his operational and functional manager to review his performance against agreed objectives of the said PIP. That he had been accorded opportunity through P & O to do online training programs to help him improve on his weak areas and also given coaching support. The letter concluded that in spite of all their efforts, his performance remained unsatisfactory. 124.It was due to the above issues that the claimant was terminated. From his evidence, the claimant indicated that he was marketing manager/brand manager cardio and was reporting to head of marketing and he admitted his boss Wangechi had written to him concerning his work and whether he met the targets set. He also admitted being invited to a PIP meeting. 125.The respondents witness indicated that they followed the right procedure but also indicated that in claimant’s PIP at page 2 of claimant’s bundle direct line manager was the one to initiate the PIP. The witness also indicated in document 3 page 3 guidelines on managing poor management PIP could be initiated if an employee had finished 1 year in their role. 126.The RW1 also told court that he could not tell what claimant’s performance was in 2023 as he did not participate in the PIP process. The RW1 further told court that the claimant was not subjected to any disciplinary process. He also admitted that emails complaining of the claimant’s performance were raised by one Perpetua who was not claimant’s direct line manager. He also indicated that the PIP was done by Perpetua. 127.Having considered the evidence above, it is apparent that the claimant was never subjected to any disciplinary hearing as envisaged under section 41 to the Employment Act 2007 which states as follows: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. 128.It is also apparent that if indeed the claimant was not performing his work, the direct line manager was the one to raise the issue. There is no evidence that this was done and the claimant’s performance assessed. In this event, RW1 even indicated that he could not tell what the claimant’s performance was in 2023. 129.The conclusion from this analysis is that the respondents did not establish the existence of valid reasons that could have warranted the claimant’s dismissal nor did they subject him to any fair disciplinary process. 130.Section 45(2) of the Employment Act 2007 states as follows:(2)A termination of employment by an employer is unfair if the employer fails to prove―a.that the reason for the termination is valid;b.that the reason for the termination is a fair reason―i.related to the employees conduct, capacity or compatibility; orii.based on the operational requirements of the employer; and(c)that the employment was terminated in accordance with fair procedure 131.In view of the above, I find the claimant’s termination was unfair and unjustified and I declare it so. In terms of remedies, I find for the claimant and award him as follows:-1.1 months’ salary in lieu of notice = Kshs 379,065/-.2.Leave accrued not paid as per their termination letter = kshs 255,100/-.3.In view of the wrongful illegal termination which cut shortthe claimant’s career and in view of the unfairness of the entire process, I find 8 months’ salary as compensation adequate= 8x379,065=Kshs 3,032,520/-.Total = 3,666,685/- less statutory deductions.4.I also order he be issued with a certificate of service.5.The respondents will pay costs of this suit plus interest at court rates with effect from the date of this judgment. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 19TH DAY OF JUNE, 2026.HELLEN WASILWAJUDGE