Kirichu v Legend Hotels Limited (White Rhino (Appeal E008 of 2021)  KEELRC 13174 (KLR) (31 October 2022) (Judgment)
Neutral citation:  KEELRC 13174 (KLR)
Republic of Kenya
Appeal E008 of 2021
DKN Marete, J
October 31, 2022
David Maina Kirichu
Legend Hotels Limited (White Rhino
1.This matter is originated by way of a memorandum of appeal dated July 26, 2021 and comes out as follows;
2.The respondents case is that at all times, the contract of employment was a fix term contract. This was not renewed with notice to the appellant.The issues for determination therefore are;1.Whether the appeal is sustainable in law and facts.2.Whether the appellant is entitled to the relief sought.3.Who bears the costs of this appeal.
3.The 1st issue for determination is whether the appeal is sustainable in law and facts. The parties hold diametrically oppose position on this. The appellant, in his written submissions dated April 28, 2022 spelt out a case in support of the appeal. It is the submission that the contract inter partes was one of a renewal contract of employment. This was not renewed due to poor performance apparent in poor stock taking and lack of proper planning leading to poor service delivery.
4.The appellant’s further case and submission is that instead of warning on poor performance, the respondent reacted rashly and terminated his employment without a hearing.
5.He again buttresses his case by relying on the authority of Kenya Service Research International Technical and Allied Workers Union v Stanley Kinyanjui and Magnate Ventures Cause No 273 of 2010, where the court held that before a termination can be said to be unlawful, the employee must be given a chance to be heard, and his or her representations on poor performance must be considered.
6.Again, he further sought to rely on the authority of Liberata Njau Njioka v Magadi Soda Company Limited  eKLR, where the claimant’s employment was terminated on grounds of poor performance but without giving any warning or offering the employee a chance to make representations on the issue of poor performance.
7.Further in Walter Olal Anuko v Teachers Service Commission  eKLR, the court held that if the procedure followed in the termination of employment contract, no justification whatsoever can be entertained.
8.It is the appellants penultimate submission that the respondent failed to demonstrate a valid reason for the appellant conduct, incapacity or operational requirement as is required under section 45 of the Employment Act, 2007. She should have demonstrated the criteria for assessing poor performance and rating him as a poor performer.
9.The respondent in a written submissions dated March 28, 2022 comes out thus;
10.The respondent case and submission is that the appellant was on a fixed term contract of employment which lapsed through effluxion of time on September 14, 2016. He was notified of the intent not to renew his contract in writing and thereafter paid all his terminal dues.
11.The learned trial magistrate captured and analysed the respective cases of the parties and came up with a conclusion of lawful termination of the employment of the appellant. This was through a thorough and distinguished analysis of the evidence and data availed in support and defence of the case.
12.Having looked at the proceedings, evidence and judgment of the lower court, I find that the learned trial magistrate cannot be faulted for the outcome and results of the case. She rightly addressed herself to all the issues, evidence and facts of the case and came up with a conclusion of dismissal of the claim. The matter comes out as clear as daylight.
13.I am therefore inclined to dismiss the appeal with orders that each party bears their costs of the same.
DATED AND DELIVERED AT NYERI THIS 31ST DAY OF OCTOBER 2022.D K NJAGI MARETEJUDGEappearances1. Mr Makoro instructed by Gori, Ombongi & Company Advocates for the appellant.2. Mr Kilonzo instructed by Kilonzo Anthony & Company Advocates for the respondent.