We successfully acted for Safaricom PLC, the Respondent in Mwaura v Safaricom Limited [2025] KEELRC 2431 (KLR) where the Employment and Labour Relations Court (ELRC) affirmed the legal principles for terminating employment on account of poor performance and found that Safaricom had complied with both substantive and procedural requirements.

The Claimant challenged his dismissal which was on account of poor performance, alleging it was unfair. The Court dismissed the claim and upheld the dismissal, finding that it was lawful, reasonable, and fairly executed in accordance with the Employment Act and judicial precedent.

Key takeaways from the judgment

1. Fair termination for poor performance requires a structured process
   The Court restated the principles laid out in Jane Samba Mukala v Ol Tukai Lodge Ltd [2013] KEELRC 794 (KLR):

   An employer must have a policy for assessing good and poor performance

   There must be a support mechanism (like a PIP) to help a poorly performing employee improve

   The employee must be given a hearing before termination of employment.

   The Court found that Safaricom complied with all these steps. It set clear performance targets, conducted evaluations, placed the employee on a PIP, and finally afforded him a chance to be heard before termination.

2. An employee’s self-appraisal is not conclusive
   The Claimant relied on his own rating of 132% during a PIP cycle to argue that he had met the targets. However, the Court held that an employee’s self-assessment must be validated by the line manager. In this case, the line manager had revised the score to 60 percent, and the Court accepted that this downward revision was valid and consistent with the Company’s policy.

   Participation in PIP goal setting does not require necessarily require an employees’ full concurrence.

   Court found that the Claimant was consulted during the setting of PIP objectives, as demonstrated by email exchanges. While he may have expressed reluctance to endorse the goals, the Court held that his involvement in discussions satisfied the requirement for consultation.

   This finding suggests that an employee’s participation does not require their full concurrence for the process to be deemed fair.

3. Standard of proof is balance of probabilities, not certainty
   The Court reiterated that the employer is not required to prove poor performance to a criminal law standard. It cited Kenya Revenue Authority v Reuwel Waithaka Gitahi & 2 others [2019] eKLR, confirming that an employer may terminate employment if they genuinely believe, based on sufficient data, that poor performance exists. The standard is on a balance of probabilities, not beyond reasonable doubt. The Court found that the performance data held by Safaricom was sufficient to support such belief and declared the termination lawful and procedurally fair.