Kwale International Sugar Company Ltd v Mbaya (Civil Appeal E059 of 2022) [2024] KECA 795 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that employers cannot extend probation by word of mouth, and payouts for unfair dismissal must match actual service length.
What this practically means
#Executive summary
#Key legal issues
#Whether the respondent was on probation at the time of termination
No. The appellant failed to prove an extension of probation as required by section 42(2); employment was effectively confirmed
The offer letter provided for six months' probation, lapsing in February 2016. The appellant claimed an oral six-month extension but adduced no evidence of extension due to poor performance or by agreement with the employee. Section 42(2) requires the employee's agreement for an extension of up to six months. Absent proof of such extension, the probation had lapsed and the employment was confirmed, meaning full procedural protections under the Act applied.
Whether the termination was unfair
Yes. The appellant did not comply with the mandatory procedural requirements of section 41 nor prove a performance evaluation system
Sections 41, 43 and 45 set out the procedure for termination. The respondent was not notified of the intended termination or given an opportunity to be heard. On poor performance, the employer bears a high evidential burden, must show a performance measurement policy and steps taken to address poor performance, none of which were adduced. The termination was therefore procedurally and substantively unjustified.
Whether the award of 10 months' compensation was manifestly excessive
Yes; reduced to 2 months' gross salary given the short two-year contract and remaining term
Section 49 remedies are discretionary and guided by the thirteen considerations in section 49(4), including length of service and the reasonable expectation of the contract's duration. The respondent had worked only 12 months of a two-year contract with about 10 months remaining. The judge's failure to weigh these relevant factors warranted appellate interference; two months' compensation was considered adequate.
Whether the appeal was competent (alleged late filing of record)
The objection failed; it was raised too late and without adherence to the 30-day requirement under rule 86
The respondent objected that the record of appeal was served over 80 days late contrary to rule 90(1). The Court held that nothing turned on the objection because it was raised so late in the day and without adherence to the 30 days requirement specified by rule 86 of the Court's rules. The appeal was therefore competent.
Legal principles established
#- A probationary period may only be extended in the manner prescribed by section 42(2) of the Employment Act - with the employee's agreement and for not more than a further six months; absent evidence of such extension, employment is deemed confirmed
- Termination on grounds of misconduct, poor performance or incapacity requires strict compliance with the mandatory procedural requirements of section 41 of the Employment Act, including notification and hearing of the employee
- An employer alleging poor performance bears a high level of proof and must demonstrate an evaluation system and measures taken to address poor performance
- Remedies under section 49 of the Employment Act are discretionary, to be guided by the considerations in section 49(4), including the length and unexpired term of the contract; appellate courts will interfere where an award is excessive for want of relevant considerations
Court orders
#- 1.The appeal fails with regard to the challenge on the trial court's finding that the respondent's employment was unfairly terminated
- 2.The order for 1 month's salary in lieu of notice is hereby upheld
- 3.The award of compensation at 10 months gross salary is set aside and substituted with an award of 2 months gross salary at the rate of the last salary paid
- 4.The appellant shall pay to the respondent the costs of the appeal
- On appeal from
- Employment and Labour Relations Court (trial court referred to as 'the learned judge')
- Not stated in the judgment
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Court of Appeal Rules (rule 31(1)(a) cited as to the appellate mandate)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (4)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Dakawou Transport Limited v Kithuku (Appeal E060 of 2024) [2025] KEELRC 1088 (KLR)[2025] KEELRC 1088 (KLR)3 Apr 2025applied
- Kamtix Clearners Limited v Midira (Appeal E218 of 2024) [2025] KEELRC 973 (KLR)[2025] KEELRC 973 (KLR)27 Mar 2025applied
- H Young & Co. (E.A) Ltd v Kobong (Appeal E10 of 2024) [2025] KEELRC 514 (KLR)[2025] KEELRC 514 (KLR)24 Feb 2025
- Dakawou Transport Limited v Kithuku (Appeal E060 of 2024) [2025] KEELRC 452 (KLR)[2025] KEELRC 452 (KLR)20 Feb 2025applied
Cite this brief
#Cite this brief
Caselaw, "Kwale International Sugar Company Ltd v Mbaya (Civil Appeal E059 of 2022) [2024] KECA 795 (KLR)", Case Analysis (2024). Civil Appeal No E059 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/795/eng@2024-07-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.