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Court of AppealDismissedCivil Appeal No 68 of 2016· [2025] KECA 96 (KLR)

Red Lands Roses Ltd v Mugo (Civil Appeal 68 of 2016) [2025] KECA 96 (KLR)

Court of Appeal of Kenya
24 January 2025
JMJ. M'InotiHOH. A. OmondiGNG. W. Ngenye-Macharia
5,499 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal confirmed that employers must follow fair procedures even when firing staff on probation, because the law shielding probationary terminations is void.

What this practically means

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Executive summary

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This Court of Appeal judgment (M'Inoti, Omondi and Ngenye-Macharia, JJAA) concerned the termination of Rosemary Wambui Mugo's employment by Red Lands Roses Ltd within her three-month probationary period. The ELRC (Mbaru, J.) had held that section 42 of the Employment Act, which ousts the procedural protections of section 41 for probationary employees, was inapplicable, and awarded the respondent Kshs 131,000, with each party bearing its own costs. On appeal, the appellant argued that probationary contracts are governed solely by section 42 and the probation clause, relying on ELRC authority that employers owe no hearing or reasons obligation to probationary employees. The Court traced the deeply divided ELRC jurisprudence, from Samuel G. Momanyi in the High Court through the conflicting lines of Rika, Nzioki wa Makau, Radido and Ndolo, JJ., to the 2021 three-judge decision in Monica Munira Kibuchi & 6 others v Mount Kenya University & Another, which declared section 42(1) unconstitutional to the extent it excludes probationary employees from section 41. Noting that no appeal has been lodged against that decision and that the Supreme Court has confirmed the ELRC's power to invalidate statutes, the Court held the provision to be of no legal effect and incapable of enforcement. The appeal was accordingly dismissed, with each party bearing its own costs. The Court also apologised for the delay in delivering the judgment.

Key legal issues

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01

Applicability of section 42 of the Employment Act to termination during probation

Holding

The appeal failed because the provision the appellant sought to enforce, section 42 of the Employment Act, had been declared null and void by the ELRC and that declaration stands unchallenged; the Court could not enforce it even if it agreed with the appellant.

Reasoning

The Court traced the conflicting ELRC jurisprudence on probationary terminations and noted that the appellant argued the appeal on the footing that section 42 was valid. However, since the appeal was filed, a bench of three ELRC judges in Monica Munira Kibuchi declared section 42(1) unconstitutional to the extent that it excludes probationary employees from section 41. That decision has not been appealed or reversed, and the Supreme Court has confirmed the ELRC's power to invalidate statutory provisions. Accordingly the provision is of no legal effect and cannot ground the appeal.

p. 10
02

Status of the ELRC decision in Monica Munira Kibuchi & 6 others v Mount Kenya University & Another

Holding

The ELRC decision declaring section 42(1) unconstitutional represents the law, being unchallenged, and binds within the ELRC's constitutional mandate.

Reasoning

The Court observed that the Monica Munira Kibuchi decision was rendered by an expanded bench of three ELRC judges acting within the jurisdiction conferred by Article 162(2)(a) of the Constitution and section 12(1) of the Employment & Labour Relations Court Act. No appeal has been preferred against it and it was not the subject of the present appeal. The Court reinforced this with the Supreme Court's recent confirmation of the ELRC's power to declare statutes unconstitutional.

p. 9

Legal principles established

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  • The decision of the ELRC in Monica Munira Kibuchi & 6 others v Mount Kenya University & Another, declaring section 42(1) of the Employment Act unconstitutional to the extent that it excludes employees on probation from section 41, represents the law and has not been challenged or reversed
  • The ELRC, as a superior court with jurisdiction over employment and labour relations disputes, is not precluded from declaring the constitutional validity (or invalidity) of a statute or a provision of a statute
  • A court cannot enforce a statutory provision that has been declared null and void by a court of competent jurisdiction and not overturned on appeal

Court orders

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  1. 1.The appeal is dismissed
  2. 2.No order on costs (each party to bear its own costs)

Authorities

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Legislation

  • Employment Actsection 42(1)
  • Employment Actsection 42(4)
  • Employment Actsection 41
  • Employment Actsection 43
  • Employment Actsection 45(1) and (2)
  • Employment Actsection 45(3)
  • Employment Actsection 44(4)
  • Employment Actsection 47
  • Employment Actsection 49
  • Employment Actsection 5
  • Constitution of Kenya, 2010Article 41
  • Constitution of Kenya, 2010Article 41(1)
  • Constitution of Kenya, 2010Article 42
  • Constitution of Kenya, 2010Article 24
  • Constitution of Kenya, 2010Article 47
  • Constitution of Kenya, 2010Article 162(2)(a)
  • Constitution of Kenya, 2010Articles 10, 25, 27, 28, 40, 43, 48, 50 and 50(1)
  • Employment & Labour Relations Court Actsection 12(1)
  • Environment and Land Court ActNot specified

Cases cited (14)

  • Danish Jalang'o & another v. Amicabre Travel Services Ltd
    [2014] eKLR
  • John Muthomi Mathiu v. Mastermind Tobacco (K) Ltd
    [2018] eKLR
  • Samuel G. Momanyi v. Attorney General & Another
    [2012] eKLR
  • Carole Nyambura Thiga v. Oxfam
    [2013] eKLR
  • Onesmus Kilonzo v. Nation Media Group Ltd.
    [2014] eKLR
  • Mercy Njoki Karingithi v. Emrald Hotels Resorts & Lodges Ltd
    [2014] eKLR
  • Vitalis Opondo Adhere v. Longhorn Kenya Ltd
    [2015] eKLR
  • Dixon Amdama v. Amani Tiwi Beach Resort
    [2015] eKLR
  • Evans Kiage Onchwari v. Hotel Ambassadeur Nairobi
    [2016] eKLR
  • Nation Media Group Ltd. v. Onesmus Kilonzo
    [2017] eKLR
  • Onesmus Kilonzo v. Nation Media Group Ltd
    [2019] eKLR
  • John Muthomi v. Mastermind Tobacco Ltd
    [2018] eKLR
  • Monica Munira Kibuchi & 6 others v. Mount Kenya University & Another
    [2021] eKLR
  • Kenya Tea Growers Association & 3 others v the National Social Security Fund Board of Trustees & 13 Others
    [2024] KESC 3 (KLR)
On appeal from
Employment & Labour Relations Court
Not stated in the judgment
Jurisdiction invoked
First appellate jurisdiction of the Court of Appeal over the ELRC (the judgment does not state the specific provision)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (6)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Red Lands Roses Ltd v Mugo (Civil Appeal 68 of 2016) [2025] KECA 96 (KLR)", Case Analysis (2025). Civil Appeal No 68 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/96/eng@2025-01-24

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.