A sprayer on a flower farm was given verbal and written warnings about his work. Later he was found to have skipped lines while spraying pesticide. He had a hearing with a representative present, signed the record, and his employment was ended. In court he said he'd been forced to sign the warnings. The Employment and Labour Relations Court in Nakuru noted that he had never appealed them or protested in writing, and upheld the termination ([Kamau v Maridadi Flowers Limited 2019] KEELRC 365).
Compare a personal banker terminated after a performance review. The court found the targets had been issued late and that he had no warning of what the exercise could lead to. In the judge's words, he was "merely ambushed with a letter of termination of employment". He was awarded ten months' pay as compensation ([Cheruiyot v The Co-operative Bank of Kenya Ltd 2024] KEELRC 451).
The farm could show it had told the employee, more than once, and that he'd had a chance to respond. The bank couldn't.
What the law says, and what it leaves to you
The Employment Act doesn't set a number of warnings, distinguish verbal from written ones, or say how long a warning lasts. It does say this.
Section 45(5) lists what the court considers when deciding whether a termination was fair. Two of the items are "the existence of any previous warning letters issued to the employee" and your previous practice in dealing with similar situations.
Section 74(1)(l) requires you to keep a record of warning letters on each employee's file.
Section 12 requires a written statement of disciplinary rules, and who the employee can go to if they're unhappy with a disciplinary decision. Under section 12(3) this applies only to employers with fifty or more employees when the person starts work. If you have a procedure in a handbook or contract anyway, you'll be expected to follow it. In the AMREF case, covered in our guide to terminating for poor performance, the Court of Appeal found a termination unfair because AMREF skipped the written warning its own procedure required.
A warning doesn't replace the hearing. If you later consider terminating for poor performance, section 41 still requires you to explain the reason, allow a colleague or union representative to attend, and hear the employee out.
When to give one
A warning for poor performance should come after the standard was clear, the gap was raised with the person, and they'd had some support and a fair chance to improve. In [Jane Samba Mukala v Ol Tukai Lodge Ltd 2013] KEIC 634, the court described the sequence it expected: an appraisal, targets with a time plan, a follow-up review, and then a warning if the person was still below standard.
The warning often goes with a performance improvement plan: the plan sets the targets and support, and the warning makes clear what's at stake. Don't make a warning the first time someone hears there's a problem.
Verbal or written
A verbal warning can be a reasonable first step. AMREF's procedure, for example, required one with a witness present. But it only helps you later if it was recorded. Write a dated note of what was said, who was there and what the person was asked to change, and put it on the file.
For poor performance, a written warning that names the consequence is much easier to rely on if a termination is ever challenged.
How many
There's no legal number. If your policy or a collective agreement sets one, follow it. Many employers use a first written warning and then a final written warning before starting the termination process.
The count matters less than the content. Each warning should be about the same shortfall, with enough time between warnings for the person to show a change, and the last one should say plainly that the next step may be termination.
What the letter should say
- The date, the employee's name and their role.
- The standard expected, in numbers or observable terms.
- The shortfall, with dates and figures.
- What was discussed before, and what support was given.
- What must improve, by when, and how it will be measured.
- The support you'll give from now on, and the review date.
- Whether this is a first or final warning, and what may happen if things don't improve.
- An invitation to respond in writing, and how to appeal if your policy allows it.
Here's a short example. (This is an illustrative example, not a client.)
Dear Otieno, >First written warning: sales performance >Your target as sales representative for the Kisumu and Siaya route is KSh 1.8 million in sales a month. Your sales for July, August and September were KSh 1.1 million, KSh 1.0 million and KSh 1.2 million. We discussed this on 4 August and 1 September. Since 1 September your motorbike has been back from repair and you've had a weekly route plan agreed with your supervisor. >We now need sales of at least KSh 1.5 million in each of October and November, and KSh 1.8 million from December. Your supervisor will meet you every Monday to review the week's orders. We'll review your performance on 5 December. >If your sales don't reach these levels, the company may begin the process of considering whether to end your employment on grounds of poor performance. That process would include a meeting where you can respond, with a colleague of your choice present. >If you disagree with anything here, please reply in writing within five working days, and we'll keep your reply on file with this letter.
Underneath, add a line for the employee to sign confirming they received it, and say on the form that signing confirms receipt and doesn't mean they agree.
Delivery, and what to do when they won't sign
Hand the letter over in a private meeting and talk it through.
If the employee won't sign, don't argue. Note it on your copy, and have a witness who wasn't involved in the dispute record the date and what happened. Or send the letter to their work email, or to an address given in their contract, and keep proof that it was sent. Record only what you know. If they took the letter without reading it, don't write that they read it.
The invitation to reply matters here. In the Maridadi Flowers case, the court gave weight to the fact that the employee had never challenged his warnings at the time. An employee who was offered a clear way to disagree, and didn't use it, may find it harder to say later that the warning was unfair.
The opposite also happens. In the Ol Tukai Lodge case, a warning letter only appeared after the employee had filed her claim and given evidence, and she said it was unsigned. The court found no system for assessing her performance and ruled the termination unfair.
Performance warnings and misconduct warnings are different
A misconduct warning is about a rule someone chose to break: lateness, rudeness, ignoring an instruction. A performance warning is about a standard someone hasn't met, often while trying. One is a sanction. The other tells the person what has to change and what help they'll get.
The line can blur. Section 44(4)(c) treats wilful neglect, or careless and improper work, as possible grounds for summary dismissal, which is why the Maridadi Flowers case reads partly as misconduct. Decide which one you're dealing with and keep the warning, the hearing and the termination letter consistent with that choice.
Old warnings about other things won't rescue a thin performance case. In [Lukania v Cotes Du Rhone Ltd 2023] KEELRC 1798, the employee had received warning letters going back years. The court noted they weren't part of the reasons given for his termination, found no evidence that he'd been told of his poor performance or heard on it, and ruled the termination unfair.
How long a warning stays relevant
The Act doesn't say. Some handbooks and collective agreements set a period, such as six or twelve months, after which a warning is disregarded. If yours does, follow it. If you have no rule, a warning from years ago about a different task is unlikely to carry much weight. Set a period in your procedure and apply it to everyone, since section 45(5) lets the court look at how you've handled similar cases.
A warning is only as good as the record behind it
Every point above depends on what happened before the letter. Most founders know that. The difficulty is getting managers to write down expectations, hold check-ins and keep notes as routine, so the facts exist when they're needed. In many growing businesses that happens only when the founder pushes. Our guide to turning business goals into expectations for staff is a place to start.
If you're dealing with a live dispute, take advice from an employment lawyer on that case. Our work is with the routine that comes before it: building a way of managing performance where expectations, check-ins and records happen without you chasing 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.