Nyaga v Bomi E & C Consortium (Employment and Labour Relations Cause E015 of 2024) [2026] KEELRC 1533 (KLR) (5 June 2026) (Judgment)

Nyaga v Bomi E & C Consortium (Employment and Labour Relations Cause E015 of 2024) [2026] KEELRC 1533 (KLR) (5 June 2026) (Judgment) Neutral citation: [2026] KEELRC 1533 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Machakos Employment and Labour Relations Cause E015 of 2024 JW Keli, J June 5, 2026 Between Zippy Gacheri Nyaga Claimant and Bomi E & C Consortium Respondent Judgment 1.The claimant had been employed as a Human Resource Officer by the respondent on the 28th August 2023. She alleged unfair termination on the 25th April 2024 and filed a statement of claim dated 16th May 2024, seeking for the following relief-a.A Declaration that the Claimant’s employment was unlawful, un-procedural and irregular.I. Unfair Termination Kshs. 82,000/= x 12 Months = Kshs 984,000/=II. Salary In Lieu Of Notice Kshs. 82,000/=III. Prorated Leave Kshs. 14,000/=Total Kshs. 1,080,000/=b.Issue an order that certificate of service be issued to the Claimant.c.Interest from the date of filing this suit till payment in full.d.Costs of the suit plus interest thereon.e.Any other relief that this Honourable Court may deem just and fit to grant. 2.The Claimant’s claim was accompanied by her list of witnesses dated 16th May 2024; witness statement of the same date; and list of documents of the same date with the bundle of documents attached. 3.In response to the claim, the Respondent entered an appearance through the law firm of G&A Advocates LLP on 6th October 2024, and filed a statement of response dated 11th October 2024. In support of his response, the Respondent filed a witness statement of SHEM OMONDI MUGA dated 20th March 2025; a witness statement of STANELY NJUGUNA KIARIE dated 30th October 2025; and a list of documents with the bundle of documents attached dated 30th July 2025. Hearing and evidence 4.By consent of the parties, the matter proceeded under Rule 59 of the Employment and Labour Relations Court (Procedural Rules ) 2024, to wit:- ’59. Determination by documentary evidenceThe Court may, either by an agreement by all parties, or on its own motion, proceed to determine a suit before it on the basis of pleadings, affidavits, documents filed and submissions made by the parties.’ The parties filed submissions. The Claimant’s case in summary 5.The Claimant’s case is that she was employed by the Respondent as a Human Resource officer working in Machakos County from 28th August 2023 at a gross monthly salary of Kshs. 82,000/=, and was issued with an Employment contract to that effect. On 25th April 2024, the Respondent un-procedurally terminated her employment on the basis of poor performance. The Claimant’s grievance against the Respondent is that it acted in breach of the parties’ Employment Contract and the law by failing to provide the Claimant with a valid reason for termination arising from a known contravention of the terms of her Employment Contract, as required by clause 7.2 of the Employment Contract. Further, there was no evidence of a positive appraisal done by the respondent on 5th March 2024, and the reason given for the termination of employment is not in tandem with the cited appraisal on the claimant. 6.The Claimant further complains that she was never issued with warning letters or notices with regard to any breach of contract or gross misconduct, a notice to show cause letter or an invitation to a disciplinary hearing prior to her termination from employment on the basis of gross misconduct. She states that during the entire period that she worked for the Respondent, she was also not engaged verbally or in writing on the issue of her performance, or given a performance check list, for purposes of improvement or otherwise. 7.The Claimant’s case is that her dismissal from employment was biased and discriminatory, unlawful, unprocedural, unjustified and malicious. Respondents’ case in brief 8.The Respondent admits that the Claimant was its employee, having been engaged as a Human Resource Manager, on a one-year contract commencing on 28th August 2023. Upon her employment, the Claimant was provided with a job description detailing her key result areas and performance expectations. Her duties included overseeing human resource operations and resolving workplace issues efficiently. 9.According to the Respondent, the Claimant failed to meet the expected standards of performance as outlined in her job description by failing to address workers’ absenteeism effectively and failing to resolve minor workplace disputes at the shop floor level, leading to frequent industrial unrest. On 5th March 2024, the Claimant was invited to a performance review meeting where she was required to explain her poor performance, and subsequently granted a one-month period within which she was required to improve her performance. There was, however, minimal improvement in her performance, which forced the Respondent to issue the Claimant with a termination letter citing poor performance as the reason for her dismissal on 25th April 2024. 10.The Respondent is categorical that it acted in accordance with Clause 8.1 of the Claimant’s employment contract and Section 44(4) of the Employment Act, 2007, which allows for summary dismissal for poor performance. The termination process complied with statutory requirements for procedural fairness in that the Claimant was informed of her shortcomings; given an opportunity to improve before termination; and her terminal dues for days worked paid. 11.The Respondent denies that the Claimant is entitled to payment in lieu of notice or pro-rata leave as her dismissal was lawful and justified, and procedural fairness was observed throughout the termination process. Determination Issues for determination 12.The court having perused the pleadings of the parties and read the submissions was of the considered position that the issues for determination in the suit were-a.Whether the claimant’s employment contract was terminated unlawfully and unfairly.b.Whether the claimant is entitled to the relief sought. Whether the claimant’s employment contract was terminated unlawfully and unfairly 13.The threshold for determination of fairness of termination of employment is according to the provisions of section 45 (2) of the Employment Act to wit:- ‘45(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; or(ii)based on the operational requirements of the employer; and(c)that the employment was terminated in accordance with fair procedure.’’ To pass the fairness test, the termination of the employment contract must meet the substantive (in terms of reasons) fairness (section 43 and 45) and the procedural fairness under section 41 of the Employment Act (Walter Ogal Anuro v Teachers Service Commission [2013] eKLR). 14.The claimant alleged unfair termination. The prove of fairness of the termination is in accordance with section 47(5) of the Employment Act to wit-‘(5) For any complaint of unfair termination of employment or wrongful dismissal the burden of proving that an unfair termination of employment or wrongful dismissal has occurred shall rest on the employee, while the burden of justifying the grounds for the termination of employment or wrongful dismissal shall rest on the employer.’ 15.The claimant was issued with a letter of termination of services as follows: -'To: Zippy Nyaga ID No:30383989 Date: 25th April 2024 SUBJECT: Termination of Employment with Bomi Engineering Dear Zippy. We, Bomi Engineering & Construction Co. regret to inform you that your employment contract with us has been terminated effective immediately on 25th April 2024. The reason for your termination is poor performance as per our company standards. You will be paid for the days worked. Please acknowledge receipt of this letter by signing and returning a copy to Hr. Department. Yours sincerely Mr. YONG CHOI Administration Manager I acknowledge receipt of this letter on 25th April 2024. Name: ZPPH NYAGA Id number: 30383989.’ The claimant stated that she was not heard before the termination, she was not appraised on performance and no notice was issued. 16.The court noted the reason for termination was as follows: ‘The reason for your termination is poor performance as per our company standards’ 17.The burden to prove the validity of the reason for termination lies with the employer according to section 43 of the Employment Act, to wit- ‘43. Proof of reason for termination(1)In any claim arising out of termination of a contract, the employer shall be required to prove the reason or reasons for the termination, and where the employer fails to do so, the termination shall be deemed to have been unfair within the meaning of section 45.(2)The reason or reasons for termination of a contract are the matters that the employer at the time of termination of the contract genuinely believed to exist, and which caused the employer to terminate the services of the employee.’’ 18.The respondent relied on documents and pleadings as well as submissions. The respondent’s documents were the letter of termination (outlined above) and a salary voucher dated 30th April 2024. The respondent and filed and replied to the witness statement of Stanley Njuguna Kiarie dated 30th October 2025. The statement justified the termination as follows- ‘the Claimant, Zippy Gacheri Nyaga, was engaged by the Respondent as a Human Resource Manager on a one-year contract commencing on 28th August 2023. Upon her employment, the Claimant was provided with a job description detailing her key result areas and performance expectations. The Claimant’s role required her to oversee human resource operations and resolve workplace issues efficiently. Performance Issues During her tenure, the Claimant failed to meet the expected standards of performance as outlined in her job description. Specifically- She was unable to address workers’ absenteeism effectively. She failed to resolve minor workplace disputes at the shop floor level, leading to frequent industrial unrest. Despite these shortcomings, the Respondent endeavored to accommodate her weaknesses and focus on her strengths. Performance Review and Termination -on 5th March 2024, the Claimant was invited to a performance review meeting where she was required to explain her poor performance. Following this meeting, the Respondent granted her a one-month period to improve her performance. However, despite this opportunity, there was minimal improvement in her performance. Consequently, on 25th April 2024, the Claimant was issued with a termination letter citing poor performance as the reason for her dismissal. Compliance with Employment Laws -The Respondent acted in accordance with Clause 8.1 of the Claimant’s employment contract and Section 44(4) of the Employment Act, 2007, which allows for summary dismissal for poor performance. The termination process adhered to procedural fairness: -The Claimant was informed of her shortcomings. She was given an opportunity to improve before termination. The Respondent also ensured that all dues for days worked were paid directly into the Claimant’s account. 19.The claimant submitted as follows- the Respondent mentioned that the Claimant failed to meet expected standards of performance as outlined in her job description but failed to produce and highlight the same as evidence from the claimant contract or any other document for that matter. The Respondent stated that the Claimant failed to address two specific things, namely the worker’s absenteeism and frequent industrial unrest. The Respondent has produced no evidence to support the Claimant's allegations regarding the workers' disciplinary issues. The question of industrial unrest is a constitutional right given to any employee as long as it is peaceful and does not infringe on any other person’s rights moreover resolving all these is a collective responsibility on the part of the entire management staff and cannot be tasked to only one individual, again no evidence was produced to support these allegations. The Claimant had the obligation to prove his case against the Respondent. Such duty was substantively discharged by the Claimant who in support of her case relied on a number of documents which proved the she was employed by the Respondent and she was subsequently dismissed in a manner not prescribed in the law. Proof is the foundation of evidence. As stated in the definition of “evidence” in section 3 of the Evidence Act, evidence denotes the means by which an alleged matter of fact, the truth of which is submitted to investigation, is proved or disproved. Averments are matters the truth of which is submitted for investigation. Until their truth has been established or otherwise, they remain unproven. The Respondent was accorded an opportunity to present and prove their case. However, they did not produce any to controvert the Claimant’s. In civil matters as the one at hand, the settled threshold for proof is on a balance of probability. The question as to what amounts to proof on a balance of probabilities was discussed by Kimaru, J in William Kabogo Gitau vs. George Thuo & 2 Others [2010] 1 KLR as follows: “In ordinary civil cases, a case may be determined in favour of a party who persuades the court that the allegations he has pleaded in his case are more likely than not to be what took place. In percentage terms, a party who is able to establish his case to a percentage of 51% as opposed to 49% of the opposing party is said to have established his case on a balance of probabilities. He has established that it is probable than not that the allegations that he made occurred.” It is our submission that the Respondent has failed to produce any documentation as evidence to prove the contents and acknowledgement of 5th March 2024 as alleged by the Respondent in clause 4 of his statement, again, the Respondent did not tender any evidence of minutes that may have emanated from such meeting or even a resolution to that regard. The Respondent has also admitted that the claimant was issued with a termination letter citing poor performance, which is clear that she was not given a one-month notice as captured in section 7.1 of the employment contract. The court should take note of the fact that the Claimant was first placed to work on probation for a period of 3 months prior to her confirmation as per the contract and as later confirmed by the Respondent, a clear testimony that she performed her duties satisfactorily. 20.The reason for the termination was poor performance. In Jane Samba Mukala v Ol Tukai Lodge Limited [2013] eKLR the court observed as follows;-“a.Where poor performance is shown to be reason for termination, the employer is placed at a high level of proof as outlined in section 8 of the Employment Act, 2007. The employer must show that in arriving at the 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.b.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 put in place. It will not suffice to just say that one has been terminated for poor performance as the effort leading to this decision must be established.c.Beyond having such an evaluation measure, and before termination on the ground of poor performance, an employee must be called and explanation on their poor performance shared where they would in essence be allowed to defend themselves or given an opportunity to address their weaknesses.d.In the event a decision is made to terminate an employee on the reasons for poor performance, the employee must be called again and in the presence of an employee of their choice, the reasons for termination shared with the employee.”(Decision cited with approval by the Court of Appeal in National Bank of Kenya v Samuel Nguru Mutonya [2019] eKLR (Judges, RN Nambuye, GK Oenga, S ole Kanta JJAs). I applied the decision in measuring the validity of the reason for poor performance in the instant suit. 21.Whereas the witness statement of the respondent’s witness alleged the claimant performed below expected performance as outlined in her job description by failing to address workers’ absenteeism effectively and failing to resolve workplace disputes at the shop floor level leading to frequent industrial unrest, the respondent did not produce before the court any document to prove the poor performance or minutes of the alleged meeting where the performance was discussed. There was no evaluation of the performance. The court finds that the respondent did not discharge its burden to prove the validity of the reason for poor performance, applying the decision in Jane Samba Mukala v Ol Tukai Lodge Limited [2013] eKLR, which is upheld. The respondent ought to have placed before the court evidence of the poor performance. Before the court, there was only the termination letter, which did not even state there was a meeting before the termination. The letter stated the termination was with immediate effect. The court concluded there was no procedural fairness as per section 41 of the Employment Act, to wit –‘41. Notification and hearing before termination on grounds of misconduct(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.(2)Notwithstanding any other provision 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.’’ The court holds the termination was not based on a valid ground for lack of proof of the alleged reason of poor performance and lack of evidence of procedural fairness. The termination is held as unfair, Whether the claimant is entitled to relief sought 22.The claimant sought for the following relief-A.A Declaration that the Claimant’s employment was unlawful, un-procedural and irregular. The court returns in the positive, having held that the termination was unfair for lack of a valid reason and lack of procedural fairness. 23.The court on finding unfair termination, is called upon to consider remedies under section 49 of the Employment Act which includes compensation for unfair termination capped at the equivalent of 12 months' gross salary and in doing so to factor subsection 4 which states as follows- ‘49(4) A labour officer shall, in deciding whether to recommend the remedies specified in subsections (1) and (3), take into account any or all of the following—(a)the wishes of the employee;(b)the circumstances in which the termination took place, including the extent, if any, to which the employee caused or contributed to the termination; and(c)the practicability of recommending reinstatement or re-engagement;(d)the common law principle that there should be no order for specific performance in a contract for service except in very exceptional circumstances;(e)the employee’s length of service with the employer;(f)the reasonable expectation of the employee as to the length of time for which his employment with that employer might have continued but for the termination;(g)the opportunities available to the employee for securing comparable or suitable employment with another employer;(h)the value of any severance payable by law;(i)the right to press claims or any unpaid wages, expenses or other claims owing to the employee;(j)any expenses reasonably incurred by the employee as a consequence of the termination;(k)any conduct of the employee which to any extent caused or contributed to the termination;(l)any failure by the employee to reasonably mitigate the losses attributable to the unjustified termination; and(m) any compensation, including ex gratia payment, in respect of termination of employment paid by the employer and received by the employee.’’ In the instant case, there was no evidence that the claimant contributed to the termination, there was no fair hearing, and the claimant had worked for a short period of approximately 9 months. The claimant was a young person born in 1993. There was no reason advanced or apparent to the court why the claimant could not secure an equivalent or better job(taking advantage of time) in the market. The court, based on the foregoing reasons, finds the equivalent of 2 months’ salary to be adequate compensation for the unfair termination and awards the same.B.Salary in lieu of notice claim of Kshs. 82,000 - the notice is due as the termination was unfair. The same is granted under section 35 of the Employment Act for a salary of 1 month Kshs. 82,000.C.Prorated leave equivalent of Kshs. 14,000 - the claim for leave was not disputed and is awarded.D.Certificate of service - the same is due under section 51 of the Employment Act and is awardedE.Interest from the date of filing this suit till payment in full.- interest is awarded from judgment date.F.Costs of the suit plus interest thereon- costs follow the event and the same is awarded to the claimant. Conclusion 24.The court held that the termination was unfair both on the reason and procedure. The court enters judgment for the claimant against the respondent as follows-a.The court issues A Declaration that the Claimant’s employment was unlawful and un-proceduralb.Notice pay equivalent of 1 month salary - Kshs. 82,000c.Compensation equivalent of 2 months' salary – Kshs. 164,000d.prorated leave in lieu – Kshs. 14,000e.costs and interest at court rate from judgment date.f.Certificate of service to issue under section 51 of the Employment Act through the claimant’s advocates office within 21 days. 25.It is so ordered DATED, SIGNED, AND DELIVERED IN OPEN COURT AT MACHAKOS THIS 5th DAY OF JUNE, 2026.JEMIMAH KELI,JUDGE.In The Presence Of:Court Assistant: OtienoClaimant: MisigaRespondent: Achola