In 2009 the Postal Corporation of Kenya charged its General Manager for Finance and Strategy with negligence of duty and mismanagement, and called him before its board. The invitation to that meeting was two lines: a date and a venue. It didn't say why he was being called or that he could bring a colleague. The forensic report behind the charges was never shown to him, and his appearance lasted less than five minutes. The Court of Appeal agreed the procedure was unfair ([Postal Corporation of Kenya v Tanui 2019] KECA 489 (KLR)).
That was a large state corporation. A business with 25 staff can make the same mistakes, for instance when the founder thinks the case is obvious and treats the meeting as a formality.
What section 41 asks of you
Section 41 applies before you terminate someone for misconduct, poor performance or physical incapacity. In the Tanui case the Court of Appeal said "four elements must thus be discernible" in the procedure:
- an explanation of the grounds, in a language the employee understands
- the reason you're considering termination
- the employee's right to have another employee, or a shop floor union representative, of their choice present
- hearing and considering what the employee and that person say
Section 45(5) adds that a court will look at the procedure you used, how you communicated the decision, and how you handled any appeal. Section 43 puts the burden of proving the reason on you.
A hearing comes at the end of a process. A good hearing won't make up for targets nobody wrote down or an improvement plan that never happened. Our guides to improvement plans, warning letters and lawful termination for poor performance cover what should already be on file.
What the invitation letter should say
- That you're considering terminating their employment for poor performance. Say it plainly, so they know what's at stake.
- The specific shortfalls, with dates and figures, and the standard they were measured against.
- Copies of the documents you'll rely on: the targets, review notes, the improvement plan and its results.
- The date, time and place, and who will chair. The Act doesn't set a minimum notice period, so give enough working days for them to read the documents and speak to whoever they want to bring.
- That they can bring a fellow employee or a shop floor union representative of their choice.
- That they can give their side in writing as well, bring documents, and name anyone they want you to hear from.
- Who to contact if they can't attend, and that if they don't attend without good reason, a decision may be made on the information available, including anything they send in writing.
If the employee works more comfortably in Kiswahili or another language, arrange the hearing in that language and say so in the letter. Keep proof that the letter was delivered.
Who should chair
Where you can, the person chairing should have the authority to decide and shouldn't be the employee's day-to-day manager, so the employee isn't arguing their case to the manager who raised the concerns. In a business of 15 people, that may have to be the founder. If so, let the line manager present the case, keep your own mind open until you've heard the reply, and arrange for someone else to hear any appeal, such as another director or a trusted senior person from outside the team.
Running the meeting
- Open. Introduce everyone, including the person taking notes. Confirm the employee received the documents, that they're comfortable with the language, and who they've brought.
- The manager explains the concerns, going through the documents one at a time.
- The employee responds, and their colleague or representative can speak. Let them finish. Ask questions to understand their side.
- Ask directly about support. Did they have the tools and information that were promised? If they didn't, that matters to the outcome. Our article on staff who look like poor performers but are actually unsupported explains why.
- Ask whether there's anything else they want you to consider.
- Close. Say that no decision will be made in the room, when they'll hear, and that they'll get a copy of the notes.
Minutes
Have someone other than the chair take notes. Record who attended, what each person said, which documents were discussed, and any request for more time. Send the notes to the employee and invite corrections. If they won't sign, write that down with the date.
This matters more than it looks. In a January 2026 judgment, an employer that ended an investment officer's contract by email at the end of his probation lost in part because it couldn't show it had told him termination was being considered, or heard him with a colleague present. The judge noted that "no minutes were produced in Court" ([Ambula v Inkomoko Limited 2026] KEELRC 39 (KLR)).
Adjournments
If the employee asks for more time for a reasonable cause, such as illness or documents arriving late, agree a short new date and confirm it in writing. If requests keep coming, set a final date and say in writing that you'll proceed on it and will consider anything they submit in writing.
If the employee doesn't come
Before you go ahead, check two things: that the invitation met section 41, and that you can prove it reached them. In [Igunza v Badar Hardware Limited 2024] KEELRC 2458 (KLR), a Mombasa truck driver was terminated after he didn't attend a hearing. The court found the employer hadn't proved he received the invitation, and that it didn't meet section 41 in any case. Even though he didn't dispute leaving his route with unauthorised passengers, he was awarded compensation and notice pay.
Where the invitation was proper and was received, the position is different. In [Chege v Timsales Ltd 2025] KECA 1660 (KLR), an employee who admitted receiving a notice to show cause didn't attend and sent a retirement notice instead. The Court of Appeal said he had "squandered the golden opportunity to defend himself".
If someone doesn't come, send a second dated invitation, record that they didn't attend, and consider any written response before you decide.
Deciding and the decision letter
Take time to weigh what the employee said. Ending the employment isn't the only option. You might extend an improvement plan, fix a support problem, or move the person to work that suits them.
If you do terminate, the letter should state the reason, matching the invitation and the file. It should say what the employee raised and why it didn't change the outcome, and set out the notice or pay in lieu, the final dues, and the certificate of service section 51 requires. Then explain how to appeal and by when.
The appeal
Section 41 doesn't require an internal appeal, but section 45(5) lets a court look at how any appeal was handled, and if your policy promises one, a court will expect to see that it happened. Have someone who wasn't involved hear it, and put the outcome in writing.
The hearing depends on the months before it
Look at what the courts checked in these cases: proper notice, documents shared, a colleague present, minutes, a considered decision. Most of the evidence a hearing relies on has to exist long before it, in written targets, regular check-ins and notes of support given. In many growing businesses those happen when the founder pushes and lapse when they don't.
If you're facing a dispute over a termination right now, take advice from an employment lawyer on that case. Our work is with the part that comes before: building a way of managing performance where expectations, check-ins and records happen as a normal part of your managers' work, without you having to chase them. The Performance Picture is a ten-working-day assessment of how performance is actually managed across your business. We hear from leadership and staff, look at the records, and show you where things break down and what to fix first. It doesn't assess one employee and it isn't legal advice. You can also start with the free three-minute Quick Picture.
This article gives general information on Kenyan employment law and performance management. It isn't legal advice for a specific case.