Twiga Food to Pay Ex-Employee Ksh.1 Million for Unprocedural Termination

The Employment and Labour Relations Court has found that Twiga Foods Limited unlawfully terminated the employment of one of its sales representatives, citing serious procedural and substantive flaws in how the dismissal was handled.

Maxton Duke Kibira was dismissed on December 13, 2018 after a letter from Twiga Foods said he had performance below set expectations, including unbanked revenue and low sales realisation rates.

Twiga Foods asserted that Mr Kibira had persistently under‑performed, and that the deductions from his salary were justified as part of a bonus system and for unbanked revenues.

The court found two major categories of failings, including substantive unfairness, in which Twiga failed to provide the employee’s job description, objective performance metrics or any proper performance‑improvement process.

“The Respondent’s witness was unable to point out any proof of poor performance the Claimant’s job description was not availed,” said Justice Linnet Ndolo, in that it was unclear how Twiga had assessed the employee’s performance, making the dismissal untenable.

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The second category was procedural unfairness. Twiga only recorded one documented meeting weeks before termination, rather than giving the employee a full performance‑improvement plan spanning two or three months, as required under Kenyan labour law.

Further, the court criticised Twiga for deducting Ksh.426,000 from Mr Kibira’s salary for alleged unbanked revenues without his input and without any documentation to show how the figures were reached.

The court said such surcharges require a fair hearing under Section 41 of the Employment Act, and the decision to deduct and dismiss on the same grounds violated the rule against double jeopardy.

While the court declined to award overtime payment claims, finding insufficient proof, it upheld the claims around unlawful deductions and flawed termination.

The Outcome

Twiga Foods was ordered to pay Mr Kibira Ksh.1 million in compensation, comprising six months’ salary plus refund of the unlawful deductions.