Poor performance rarely arrives unannounced. Missed targets, repeated errors and unmet deadlines leave a trail, and the employer’s response to that trail decides whether a later dismissal survives scrutiny. Terminating for poor performance in Kenya is lawful, but only with valid reasons and a fair procedure behind it. The file you build along the way is what protects you.
Can you dismiss an employee for poor performance in Kenya?
Yes, where the Employment Act 2007 requirements are met: the employer must be able to prove a valid and fair reason, and show that a fair procedure was followed. For performance cases, that means evidence of the shortfall, evidence that the employee knew what was expected, and evidence that the employer gave the employee a real opportunity to improve before termination was considered.
What documentation protects the employer?
- A written job description and agreed performance targets
- Appraisal records, signed by both parties
- Improvement plans with clear timelines and support offered, such as training
- Written warnings, each stating the consequence of a continued shortfall
- Minutes of performance meetings, recording the employee’s own explanations
- A record of the employee’s responses, including any objections
What does a fair process look like in practice?
Raise concerns early and in writing, hear the employee’s side, and consider reasonable alternatives such as redeployment or a revised role before dismissal. If dismissal becomes the decision, communicate it in writing with the reasons, pay all dues, and issue a certificate of service. Skipping the hearing stage, or dismissing at the end of a first conversation about performance, is where employers usually come unstuck.
If the employee challenges the dismissal
A claim at the ELRC turns on the file. The employer with consistent records can explain its decision; the employer without them argues from memory. Our dispute resolution team represents employers in ELRC proceedings, and our governance advisory work helps build the HR systems that make those files complete.
This article was written by Charles Muriu Mathenge, who advises businesses, HR directors and boards on corporate and commercial matters at CS Advocates LLP.
For guidance on your specific situation, contact CS Advocates LLP , call, WhatsApp, or book a confidential consultation at our Westlands, Nairobi office.