In January 2026 the Court of Appeal agreed that AMREF had good reason to be unhappy with one of its senior managers. It still found the termination unlawful. A few months earlier, the Employment and Labour Relations Court upheld Safaricom's termination of a senior manager who had claimed more than KSh 210 million.
Both employers had a real performance problem. What separated them was what each had done in the months before the letter, and whether it could show it.
Two questions to ask first
Before you decide that someone is underperforming, ask two questions. Did they know what was expected? And did the business give them a reasonable chance to deliver it?
The courts ask the same things. In the Safaricom case the judge set out what an employer needs: deliverables both sides agreed, a way of measuring them, evidence the targets were missed, and a chance to improve that didn't work. In the AMREF case the Court of Appeal put the second question plainly: an employee can't be guilty of underperforming where they lack the support to perform.
In our work with founder-led businesses, one of these two questions is often where the real problem sits. The targets were only ever said out loud. The new sales rep was given a territory but no transport budget. The accounts assistant missed month-end because the documents she needed arrived late from another department. If that's the situation, the fix is in how the work is set up, and a warning letter won't help. We've written more about this in staff who look like poor performers but are actually unsupported.
If the honest answer to both questions is yes, the rest of this article is about doing it properly.
The employer that lost
Dr Kennedy Manyonyi led one of AMREF's projects. His appraisal for April to October 2012 came back with a C (Fair) rating, and his managers had concerns about how the project was being run. In March 2013 he was given a verbal warning, with a witness present, as AMREF's own procedure required.
The next step in that procedure was specific. If performance didn't improve, the supervisor had to interview the employee and give a written warning setting out the problem, what had to change, the review period, and the training or support the employee would get. When concerns came up again in May 2013, that didn't happen. AMREF's HR manager accepted in evidence that the warning wasn't given. He was redeployed, and his employment was terminated on 1 July 2013.
The Court of Appeal decided the case in January 2026 ([Manyonyi v African Medical and Research Foundation 2026] KECA 101). It found the reason for termination was justified and that he'd been given support and a reasonable chance. But AMREF had signed up to a procedure and then cut it short, so the termination was unlawful. He was awarded two months' gross salary, with interest running from November 2018.
Two things are worth noticing. Your own procedure binds you: if your policy promises a written warning, a review period or an appeal, a court will expect to see that it happened. And these cases take a long time. This one ran for more than twelve years, which means someone has to find old documents and explain decisions made by managers who may have left long ago.
The employer that won
Francis Mwaura was a senior manager at Safaricom earning about KSh 811,000 a month when his employment ended in March 2021. He claimed more than KSh 210 million.
Here is what Safaricom could show the court ([Mwaura v Safaricom Limited 2025] KEELRC 2431). His objectives had been set through its performance system. After a below-average appraisal, he was put on a three-month improvement plan from June 2020. When that didn't resolve things, the plan was extended to December, and he agreed to the extension in an email. The targets for the extended plan were agreed, and there were review sessions along the way. He scored 60%. He had rated himself at 132%, and the judge said a self-assessment counts only once the line manager has validated it. He was then invited in writing to a hearing, told he could bring a colleague and warned that he could lose his job. He attended, was terminated, and his internal appeal was dismissed.
In September 2025 the court found the termination lawful and refused his claims, apart from allowing him to access the pension benefits that had built up by the date he left. He has since appealed, and in February 2026 the Court of Appeal gave him more time to serve his notice of appeal, so the dispute may not be over. What the first decision shows is how much weight a court gives to a clear record of agreed targets, reviews and a hearing.
You don't need Safaricom's HR department
A founder with 20 staff could read that and conclude it's out of reach. It isn't. In the AMREF case the Court of Appeal said an employer's framework for measuring performance "need not be elegant or elaborate".
You don't need Safaricom's HR department to manage performance fairly. You do need clear expectations, regular conversations, evidence of the support you gave, and a process your managers actually follow.
What the Employment Act asks of you
Section 41 of the Employment Act applies when you're considering terminating someone for poor performance. You have to explain the reason to the employee in a language they understand, allow them to have a fellow employee or a shop floor union representative present, and hear what they have to say before you decide.
Section 43 puts the burden on you. If the employee challenges the termination, you have to prove the reason.
Section 45 makes a termination unfair if the reason wasn't valid and fair, or if the procedure wasn't fair. Under section 49, a court can award up to twelve months' gross wages.
So a strong reason doesn't make up for a weak process. You need both.
The process to follow
This is what a defensible process looks like in a growing business. Where your own policy asks for more, follow your policy.
- Make sure the standard was written down. The employee should have known what was expected before anyone judged them. If the targets only ever existed in conversation, write them down now and give the person time to meet them.
- Tell them in writing where they're falling short. Use dates and examples. "Three of the last five month-end reports arrived after the 5th" is something a person can respond to. "Your attitude to deadlines is poor" isn't.
- Give them a fair chance to improve. Agree an improvement plan with clear targets, the support you'll give and a review date. The time has to suit the job. If someone's main output is a monthly report, two weeks tells you very little.
- Hold the reviews and record them. Meet on the dates you agreed. Note what improved, what didn't and what support was actually given.
- If it still hasn't improved, call a hearing. Give the reason in writing beforehand, tell them they can bring a colleague or union representative, listen to their side and take notes.
- Decide and put it in writing. The letter should state the reason and match the file. If your policy has an appeal, offer it.
One common gap is the second step. A manager talks to the person several times, everyone in the office knows there's a problem, and nobody writes it down. Courts do hear witnesses, but years later a conversation nobody recorded comes down to one person's memory against another's. A dated note makes your account much easier to believe.
Check the file before anyone signs the letter
Ask someone who wasn't involved in managing the employee to read the file. They should be able to answer these questions:
- Does the evidence support the reason in the letter? If the letter says poor performance, the file should be about performance. Don't add a misconduct allegation at the last minute because the performance case looks thin.
- Did we follow sections 41, 43 and 45?
- Did we follow our own contract, handbook and performance policy?
- Could an outsider understand why this happened from the documents alone?
If the honest answer to the last question is "you had to be there", stop and fix the file first. The judge won't have been there either.
Fair termination starts months earlier
Look again at what the courts checked in these two cases: written expectations, regular reviews, notes of what was said, the support that was given. Every one of those is something a manager does in a normal week. Our guides to what managers should own each week and turning business goals into clear expectations for staff cover how to build those habits.
Most founders already know this. The difficulty is getting it to happen every month, with every manager, when the founder isn't watching. In many growing businesses, expectations get written down when the founder pushes, check-ins happen when things are quiet, and notes get kept by the one careful supervisor. Then a performance problem reaches the point of termination and the business finds out what's missing from the file.
Waiting has a cost too. A person who can't do the job costs you every month, and the rest of the team notices that the standard doesn't seem to apply. The courts don't expect you to keep a poor performer forever. They expect you to show how you got to the decision.
If you're facing a termination decision 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. 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.