[2025] KEELRC 953 (KLR)

Muchura v Safari Collection Limited (Petition E216 of 2022) [2025] KEELRC 953 (KLR) (27 March 2025) (Judgment)

Neutral citation: [2025] KEELRC 953 (KLR)

Republic of Kenya

In the Employment and Labour Relations Court at Nairobi

Petition E216 of 2022

BOM Manani, J

March 27, 2025

IN THE MATTER OF CONTRAVENTION OF FUNDAMENTAL RIGHTS AND FREEDOMS UNDER ARTICLES 2(1), 3(1), 10, 19, 20, 21, 23(3), 24, 25, 29(D), 41, 43 AND 48 OF THE CONSTITUTION OF KENYA 2010 AND IN THE MATTER OF THE CONSTITUTION OF KENYA (PROTECTION OF FUNDAMENTAL RIGHTS AND FREEDOMS) PRACTICE AND PROCEDURE RULES UNDER RULES 4, 8, 10, 11, 13, 14, 15, 16, 19, 20, 21, 24 AND 26 AND IN THE MATTER OF THE SECTIONS 43, 45, 46 AND 49 OF THE EMPLOYMENT ACT OF 2007 AND IN THE MATTER OF SECTION 8 AND 9 0F THE LAW REFORM ACT CAP 26 LAWS OF KENYA AND IN THE MATTER OF SECTION 7(2) (C) AND (F) OF THE FAIR ADMINISTRATIVE ACTION ACT 2015

Between

Anne Marie Muchura

Petitioner

and

The Safari Collection Limited

Respondent

Judgment

Introduction 1. The Petitioner has filed the instant Petition to challenge the Respondent’s decision to terminate her contract of service. She contends that the decision was unfair. She also, inter alia, alleges that the Respondent violated her constitutional rights.

2. The Respondent has denied the claims. It denies that the decision to sever the employment relationship between the parties was unlawful or that it violated the Petitioner’s rights as alleged or at all.

Petitioner’s Case 3. The Petitioner contends that the Respondent engaged her services as a Guest Service Manager as from 9th October 2021. She contends that her term of service was indefinite with a monthly salary of Ksh. 350,000. 00.

4. The Petitioner contends that the contract begun with a probationary period. She contends that she was subsequently confirmed.

5. The Petitioner avers that she served the Respondent diligently until the latter unlawfully terminated her contract on 26th October 2022. She contends that on 23rd September 2022, the Respondent’s General Manager summoned her to a meeting which was also attended by the Respondent’s Human Resource Manager and the Group Operations Manager.

6. It is her case that the meeting was convened without prior notice to her. She further contends that the General Manager did not inform her the reasons for the meeting.

7. The Petitioner avers that when she got into the meeting, the Respondent’s officers informed her that her services had been summarily terminated. She contends that this decision was not preceded with any disciplinary hearing. She further avers that she was not served with a notice to show cause setting out the charges against her prior to the impugned session. As such, it is her case that the decision to terminate her contract of service was both substantively and procedurally unlawful.

8. The Petitioner contends that during the currency of her contract, the Respondent’s officers subjected her to improper treatment which violated her rights. She for instance avers that the officers ridiculed her dress code despite the fact that the Respondent did not have a dress code in place. She further contends that because of her medical condition, she is forced to shave part of her hair, a matter which did not sit well with the Respondent’s officers.

9. The Petitioner contends that the ridicule which the Respondent’s officers subjected her to on account of her dress code without providing her with an alternative amounted to discriminatory treatment against her. Hence, she avers that the action violated her constitutional right not to be discriminated.

10. She further contends that the Respondent’s management’s aforesaid behaviour subjected her to mental torture. As such she avers that the Respondent violated her right not to be subjected to torture.

11. The Petitioner avers that she has her sense of style which she expresses through, inter alia, her dress code. She contends that the decision by the Respondent’s management to hound her because of her dress code violated her freedom of expression.

12. The Petitioner avers that the Respondent’s decision to terminate her contract of service without valid justification and without regard for due process violated her right to fair labour practice. She further contends that the action violated her right to fair hearing.

Respondent’s Case 13. On its part, the Respondent admits that the two had an employment relation. However, it avers that the relation was for a fixed term for two years. It further contends that the relation was terminated on account of the Petitioner’s poor performance and failure to meet company expectations.

14. The Respondent avers that the Petitioner was issued with a series of warnings regarding her unsatisfactory performance but did not improve. It mentions that some of the warnings included those which were issued on 24th December 2021 and 24th January 2022.

15. The Respondent contends that it issued the Petitioner with a notice to show cause letter on 2nd September 2022 through email. As such, it avers that the Petitioner was aware of the accusations against her before the impugned meeting of 23rd September 2022.

16. The Respondent avers that the Petitioner opted to attend the meeting of 23rd September 2022 without a representative. Further, she allegedly stormed out of the session before it was concluded.

17. The Respondent contends that the Petitioner opted not to respond to the issues that were raised against her during the meeting of 23rd September 2022. As such, a decision was made to terminate her services after affording her a chance to be heard.

18. The Respondent denies that it violated the Petitioner’s rights as alleged by her. It contends that she was accorded the right to be heard and the right to be accompanied by a colleague at the meeting of 23rd September 2022. As such, her rights to fair labour practices and hearing were not infringed.

19. The Respondent further contends that the Petitioner had been notified of its dress code but chose to ignore it. It contends that the dress code for its employees is spelt out in its Employee Handbook which was accessible to all employees including the Petitioner. It denies that its officers ridiculed or discriminated the Petitioner on account of her appearance and dress code.

20. The Respondent avers that the Petitioner was earning gross salary of Ksh. 350,000. 00. As such, she is not entitled to house allowance.

21. The Respondent posits that it had valid grounds to terminate the Petitioner’s employment. It further contends that it processed their separation in accordance with fair procedure.

Issues for Determination 22. After analyzing the pleadings and evidence on record, I arrive at the conclusion that the following are the matters for determination in the Petition:-a.Whether the employment contract between the parties was lawfully terminated.b.Whether the Respondent violated the various constitutional rights of the Petitioner as contended by the Petitioner.c.Whether the Petitioner is entitled to the reliefs sought in the Petition.

Analysis 23. The parties gave oral evidence substantially reiterating their respective cases as appears in their pleadings. At the close of the trial, they both filed their final submissions which the court has taken into account in arriving at its decision.

24. According to the letter of termination of contract which was issued to the Petitioner, the Respondent contends that the Petitioner’s contract of service was terminated because of her persistent poor performance and failure to meet company expectations. This implies that the Respondent had communicated its performance expectations and targets to the Petitioner and that the latter failed to deliver on them despite clear knowledge of what was expected of her.

25. Poor performance is one of the grounds upon which an employer is entitled to terminate a contract of service in terms of sections 41, 43 and 45 of the Employment Act. However, before the employer can invoke this ground, he must satisfy certain requirements that have largely been developed through case-law.

26. Poor performance denotes inability by an employee to discharge his duties to the standard that is expected by the employer. This standard must be reasonable and attainable. The employer cannot expect an employee to deliver what is impossible to attain.

27. In order to gauge whether the employer’s expectations are reasonable, the standard of a reasonable man is usually deployed. If the expectations that have been set by the employer fall within the parameters of the prevailing standards and expectations in the field (industry) in which the employer operates, then the expectations will be deemed reasonable and attainable.

28. As a general rule, in order for the employer to successfully plead poor performance as a ground for termination of an employee’s employment, it is desirable that he (the employer) provides evidence to demonstrate that: the targets the employee was to attain were set with the employee’s input; the targets were reasonably attainable; the targets were communicated to the employee beforehand; the employee failed to deliver on the targets; the employee was given an opportunity for improvement under guided supervision; and the employee did not improve despite such assistance.

29. The foregoing presupposes the existence of a transparent performance appraisal system which is known to both the employer and the employee. The process cannot be founded on the personal impulses of the employer. Otherwise, it (the process) will cease to be predictable, accountable and transparent. Put differently, if the process is left to the whims of the employer, it will become arbitrary and unpredictable.

30. The Court of Appeal alluded to the foregoing in the case of National Bank of Kenya v Samuel Nguru Mutonya [2019] eKLR. It concurred with the trial Judge in the case of Jane Samba Mukala v Ol Tukai Lodge Limited [2013] eKLR who had expressed herself on the subject as follows:-‘’.. where poor performance is shown to be a reason for termination, the employer is placed at a high level of proof (as outlined under section 8 of the Employment Act) (sic) 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…Therefore it is imperative on the part of the employer to show what measures were in place to enable them assess the performance of each employee and further what measures they have taken to address poor performance once the policy or evaluation system has been applied. It will not suffice to just say that one has been terminated for poor performance. The effort leading to this decision must be demonstrated. Otherwise, it would be an easy option for abuse…Beyond having such an evaluation measure, and before termination on the ground of poor performance, an employee must be called and an explanation on their poor performance shared where they would in essence be allowed to defend themselves or be given an opportunity to address their weaknesses. In the event a decision is made to terminate an employee on the reasons of poor performance, the employee must be called again and in the presence of another employee of their choice, the reasons for termination shared and explained to such an employee.’’

31. I have scrutinized the evidence on record against the foregoing. Although there is evidence of email exchanges between the parties over the Petitioner’s performance, what one gathers from them are lamentations by the Respondent that the Petitioner was failing in some respects. Beyond this, there is no evidence to demonstrate that the parties had agreed on performance targets to be met by the Petitioner and that the targets had been communicated to her.

32. Although the Respondent’s Employment Handbook has a general policy pronouncement on performance evaluation, no evidence was tendered to demonstrate that the Respondent went beyond these guidelines to develop key performance indicators (targets) for the Petitioner in consultation with her. It appears to me that whilst the Respondent’s officers had their own expectations of the Petitioner, these expectations were haphazardly set by them without the involvement of the Petitioner. As such, they were, at the very least, arbitrary.

33. Whilst in the email correspondence the Respondent’s officers appear to have been pushing the Petitioner to up her performance, there is no clarity about the technical assistance that was extended to her to actualize her improvement. As such, it appears that the Petitioner was left to her own devises to deliver on her job description.

34. It is a requirement of the law that once an employer forms the opinion that a particular employee should be relieved of his duties on account of poor performance, the employer should notify the employee of this fact in a language which the employee understands. Further, the employer must afford the employee an opportunity to be heard in response (see section 41 of the Employment Act).

35. The above requirement informs the need to issue the employee with a notice to show cause requiring him to justify why his employment should not be terminated on account of poor performance. It also explains why the employer must convene a hearing at which the employee will be given an opportunity to respond to the allegations of poor performance against him.

36. As such, the employer must clearly notify the employee that he (the employer) proposes to terminate the employee’s contract for poor performance. In addition, he must notify the employee when he (the employee) will be heard on the matter. Finally, the employee must be given adequate notice to appear for the hearing in order to prepare his defense.

37. In the instant case, whilst the Respondent asserts that it issued the Petitioner with a notice to show case, there is no evidence to support this assertion. The email dated 2nd September 2022 which the Respondent relies on to make this assertion cannot, for all purposes and intents, be construed as a notice to show cause.

38. The email was routine correspondence through which the author expressed dissatisfaction with the Petitioner’s performance. The author then asked the Petitioner to see him/her at the office to discuss the matter.

39. The email did not warn the Petitioner that the Respondent was contemplating to terminate her services because of poor performance. It did not warn her that the proposed meeting could possibly result in severing of the employment relation between the parties on account of poor performance. It did not call on the Petitioner to justify why her contract should not be terminated for poor performance. As such and going by the email, there was no way the Petitioner would have deciphered that she was about to be subjected to a hearing which had the potential of releasing her from employment.

40. The Petitioner contends that the meeting of 2nd September 2022 did not materialize. As such, the discussion regarding her performance did not take place on that day or on a subsequent date. However, the Respondent contends that the meeting of 2nd September 2022 was rescheduled to 23rd September 2022.

41. There is evidence that the Respondent’s officers called the Petitioner for a meeting on 23rd September 2022. The Petitioner contends that she was notified about this meeting on the same day. She says that the Respondent’s Managing Director ambushed her with a demand that she joins him and other officers for the meeting at the Respondent’s Human Resource Officer’s office. She avers that when she got into the room, she was informed that her employment with the Respondent had been terminated and that she would receive her letter of termination in due course.

42. On the other hand, the Respondent denies that the meeting was an ambush. It contends that it (the meeting) was a continuation of the adjourned session that was meant for 2nd September 2022.

43. When the Respondent’s witness was questioned regarding how the Petitioner was notified of the meeting of 23rd September 2022, she said it was done through oral communication. However, she was unable to cogently demonstrate that the session was a continuation of the collapsed meeting that was meant for 2nd September 2022.

44. Under sections 43 and 45 of the Employment Act, the obligation to justify the decision to terminate an employee’s services lies with the employer. As such, it is up to the employer to demonstrate that he complied with both the substantive and procedural requirements in the journey that resulted in the closure of an employee’s employment.

45. The Respondent did not provide cogent evidence to rebut the Petitioner’s contention that she was informed about the meeting of 23rd September 2022 on the same day. It did not provide persuasive evidence to demonstrate that the Petitioner received notice for the meeting in good time in order for her to prepare her defense, if at all.

46. At the same time, the Respondent did not provide cogent evidence to demonstrate that the Petitioner was notified that what was to be discussed in the meeting of 23rd September 2022 was the same matter that was to have been considered in the collapsed session of 2nd September 2022. As such, there is no evidence to demonstrate that the Petitioner was made aware beforehand that her performance, if at all, was the reason why the meeting of 23rd September 2022 was convened. That being the case, it is implausible to think that the Petitioner would have walked into the said meeting whilst prepared to defend herself against the accusations of poor performance.

47. Unfortunately, the Respondent did not tender in evidence the minutes of the session of 23rd September 2022. When cross-examined about this lapse, the defense witness contended that no minutes were prepared for the session because the Petitioner walked out of it thus causing the meeting to abort.

48. This explanation was unconvincing. The Respondent contended that after the Petitioner walked away from the session, its officers recommended that her services should be terminated on account of poor performance. How was this possible without deliberations by the officers who were present at the session?

49. The fact that the officers purportedly reached consensus that the Petitioner be relieved of her duties and purportedly made recommendations in that regard suggests that they held some discussions on the matter, the Petitioner’s absence notwithstanding. As such, one would have expected that there would be minutes for the session.

50. The failure to produce and show the court minutes of whatever deliberations that took place on 23rd September 2022 therefore symbolizes one of the following two things: either that there was a meeting which resolved to terminate the Petitioner’s contract but the minutes for the session have been withheld for undisclosed reasons; or that there was no meeting and the decision to terminate the Petitioner’s contract was conjured.

51. The fact that no minutes of the meeting were tendered in evidence makes it is difficult to discern what was deliberated at the session. As such, it will be speculative to hold that the Petitioner’s performance was the subject of the meeting.

52. As noted earlier, the obligation to justify the validity of the decision to terminate an employee’s employment lies with the employer. Consequently, it was necessary for the Respondent to have provided the minutes for the session of 23rd September 2022, if at all, to demonstrate: that the Petitioner was informed about the purpose of the session and asked to offer her response; that in reaction, the Petitioner walked out; and that despite her walking out, the panel proceeded to make recommendations that her contract be terminated on account of poor performance. This was not done.

53. Having regard to the foregoing, I arrive at the conclusion that the Respondent has not demonstrated that it acted in accordance with justice in terminating the Petitioner’s employment. As such, I find that it (the Respondent) terminated the Petitioner’s contract of service unfairly.

54. Even if the Respondent had evidence pointing to poor performance on the part of the Petitioner, there is no evidence to demonstrate: that the parties had jointly set the Petitioner’s performance targets; that after the Petitioner failed to fulfil the targets, she was offered not just the opportunity but also the assistance to improve; and that after she failed to improve, her release from employment was processed in accordance with fair procedure. As such, I declare that the Petitioner’s contract of service was unlawfully terminated.

55. The Petitioner has raised claims regarding inhumane treatment whilst at work. She avers that the Respondent’s management ridiculed her due to her dress code and her physical appearance.

56. These accusations were vehemently disputed by the defense. The defense contended that it has a dress code and all that the management asked of the Petitioner was that she complies with the code.

57. The Respondent produced a copy of its Employee Handbook containing the dress code. The Handbook requires all members of staff to dress smartly and discretely at all times when the Respondent has guests in residence. It further requires members of staff to wear appropriate uniform.

58. The Respondent further contended that the Handbook has a grievance reporting mechanism which the Petitioner should have invoked to report the alleged harassment and discrimination. However, she did not.

59. When cross-examined on the matter, the Petitioner admitted that the issue of her mistreatment was not reported to the Respondent in terms of its grievance handling procedure. She admitted that she did not put her complaint in writing.

60. The Petitioner asserted that she did not report the matter because it involved her immediate seniors. Yet, the reporting process required that one reports such matters to his immediate supervisor before escalating it further.

61. I do not agree with the Petitioner’s contention that because the grievance was against some of her seniors, she was prevented from reporting the matter. From her testimony, she appears to have zeroed on the General Manager as the individual who was ridiculing her about her dressing. If this was the case, why did she not take up the matter with the other members of management of the Respondent?

62. After carefully evaluating the evidence on record, I am unable to arrive at the conclusion that the Respondent’s officers subjected the Petitioner to uncivil treatment. As such, her claim that she was disgraced and discriminated fails.

63. The last matter to be addressed relates to whether the Petitioner is entitled to the reliefs she seeks in the Petition. Having found that her contract of service was unfairly terminated, it is apparent that she is entitled to compensation for the unfair termination of her employment.

64. By virtue of section 49 of the Employment Act, the court is required to consider a number of factors whilst assessing the quantum of compensation to award to an aggrieved former employee. In this case, I note that the parties had a two year fixed term contract of service. At the time the contract was terminated, the Petitioner had served for slightly over one year. As such, she had less than one year to serve.

65. It is thus apparent that the Petitioner had not been in the Respondent’s employment for long when the contract between them was terminated. At the same time, the balance of her term was less than one year. In the premises, I award her compensation for unfair termination of her contract that is equivalent to her salary for three months, that is to say Ksh. 350,000. 00 x 3 = Ksh. 1,050,000. 00. This amount is subject to the applicable statutory deductions.

66. The Petitioner did not demonstrate that her rights against degrading treatment, freedom of expression and discrimination were infringed. As such, the court does not make any award of damages in this respect.

67. The Petitioner has prayed for house allowance of Ksh. 630,000. 00. However, a perusal of the Petition which anchors her case in court demonstrates that the claim for house allowance is not impleaded in the main body of the Petition. It only appears in the reliefs section of the Petition.

68. A look at the affidavit in support of the Petition also demonstrates that the Petitioner did not speak to this claim. She only alluded to it in the supplementary affidavit whilst responding to the Respondent’s assertion that her house allowance formed part of her consolidated salary. Similarly, during the Petitioner’s oral testimony, she did not speak to the matter except when she was being cross examined on whether her salary was consolidated to include house allowance.

69. Having regard to the foregoing, I do not think that the claim for house allowance was properly pleaded and proved. It (the claim) ought to have been specifically set out in the main body of the Petition to anchor the prayer in respect of it in the reliefs section. Further, the Petitioner ought to have spoken to the claim in her evidence in chief and not merely in response to the Respondent’s rebuttals. As such, I decline to award the request for the foregoing reasons.

70. In their final submissions, the Respondent’s lawyers have urged the court to reject the Petitioner’s claim because she signed a discharge and release voucher confirming that the amount set out in the instrument was all that was due to her. The instrument was produced in evidence as an addendum to the letter of termination.

71. I have looked through the response to Petition filed by the Respondent and have not seen the foregoing defense pleaded as one of the defenses to be raised against the suit. There is no plea that since the Petitioner had signed the aforesaid instrument, she was estopped from instituting this suit.

72. This brings me to the question whether a litigant is entitled to advance a case or defense which is not anchored on his pleadings. The position has always been that parties must confine their cases to their pleadings. As such, they are not entitled to rely on un-pleaded matters to advance their case (Daniel Otieno Migore v South Nyanza Sugar Co. Ltd [2018] eKLR). For the forgoing reason, I decline the aforesaid defense by the Respondent.

73. However, assuming that the Respondent had included the foregoing defense in its response to the Petition, would it (the Respondent) have succeeded in dislodging the suit merely by demonstrating that the Petitioner had executed the voucher in question? Perhaps not.

74. I do not understand the law on the subject to be that merely because a discharge voucher is exhibited, the court should declare that the beneficiary of the payments in the voucher is barred from pursing further compensation. This can only be the case if the voucher in question irrevocably denounced the beneficiary’s right to pursue further compensation. As such, whether the beneficiary of such a voucher can maintain a fresh cause of action for further compensation is a matter that must be determined on case by case basis having regard to the true meaning and import of the voucher in question (Thomas De La Rue (K) Ltd v David Opondo Omutelema [2013] eKLR).

75. In the instant case, the instrument which the Respondent relies on to advance its argument is part of the letter of termination that was issued to the Petitioner. Therefore, to understand its intent and purport, one ought to evaluate it against the content of the letter of termination.

76. The instrument refers to the separation package which was allegedly due to the Petitioner ‘’in accordance with the terms of your employment contract and the applicable employment legislation’’. In my view and having regard to the foregoing, the voucher was concerned with the exit benefits for the Petitioner on the assumption that termination of her contract was lawfully executed. As such, it cannot be raised as a bar to a claim for damages for unlawful termination of the same contract. Similarly, it cannot be used as a shield against claims for alleged constitutional breaches, assuming that the Petitioner had succeeded in this respect.

77. The Petitioner is awarded interest on the amounts awarded at court rates from the date of this decision.

78. The Petitioner is also awarded costs of the case.

79. The Petitioner confirmed during cross-examination that the Respondent eventually issued her with a Certificate of Service. As such, the prayer for issuance of this certificate is deemed as having been abandoned.Summary of Findings and Determinationa. The court finds and declares that the Respondent terminated the Petitioner’s contract of service unfairly.b. In the premises, the court awards the Petitioner compensation for unfair termination of her contract of service that is equivalent to her salary for three months, that is to say Ksh. 350,000. 00 x 3 = Ksh. 1,050,000. 00. This amount is subject to the applicable statutory deductions.c. The court finds that the Petitioner did not demonstrate that her rights of freedom of expression, not to be discriminated and subjected to degrading treatment were infringed. As such, it (the court) does not make any award of damages in this respect.d. The court finds that the Petitioner did not properly plead and prove the claim for house allowance. As such, it is declined.e. The Petitioner is awarded interest on the amounts awarded at court rates from the date of this decision.f. The Petitioner is also awarded costs of the case.g. The Respondent having issued the Petitioner with a Certificate of Service before this case was concluded, the prayer for issuance of this certificate is deemed as having been abandoned. Accordingly, it is not granted.

DATED, SIGNED AND DELIVERED ON THE 27TH DAY OF MARCH, 2025B. O. M. MANANIJUDGEIn the presence of:…………. for the Petitioner………………for the RespondentORDERIn light of the directions issued on 12th July 2022 by her Ladyship, the Chief Justice with respect to online court proceedings, this decision has been delivered to the parties online with their consent, the parties having waived compliance with Rule 28 (3) of the ELRC Procedure Rules which requires that all judgments and rulings shall be dated, signed and delivered in the open court.B. O. M MANANI