GICHUKI KABUKURU V POSTAL CORPRATION OF KENYA [2012] KEELRC 266 (KLR)
The bottom line
#Kenya's employment court ruled that probation cannot legally exceed 12 months, and firing without proving reasons makes a dismissal unfair.
What this practically means
#Executive summary
#Key legal issues
#Legality of extending probation beyond the statutory maximum
The extension of the 12-month probation by a further six months was unlawful; the probation ceased automatically and the Claimant became a permanent employee on 5th May 2010.
Section 42 of the Employment Act caps probation at six months, extendable once by up to six months with the employee's agreement, and prohibits employment under a probationary contract beyond that aggregate. The court held the wording mandatory, so the purported extension had no legal effect and the Claimant automatically converted to a permanent employee at the expiry of 12 months.
Whether the termination was unfair and unlawful
The termination was unfair and unlawful because the termination letter gave no reasons and the employer failed to prove the alleged poor performance, which was an afterthought contradicted by letters of commendation.
The 21st December 2010 letter merely referred to the earlier deferral of confirmation and terminated the probation appointment without explaining reasons. Under Section 43(1) the employer bears the burden of proving reasons; failing that, the termination is unfair under Section 45. A commendation letter from the Permanent Secretary dated 18th October 2010, two months before termination, contradicted the poor-performance justification.
Remedies for the unlawful termination
The dismissal was converted into a normal termination with one month's pay in lieu of notice at gross pay and the maximum 12 months' compensation, plus a certificate of service; the higher-duties pay claim failed for want of proof.
Having found unfair termination, the court awarded the difference between basic and gross pay for one month's notice (Ksh.38,500) and 12 months' gross salary as compensation (Ksh.1,111,560). The claim for higher-duties salary arrears failed because neither party evidenced the higher post's salary, and the court declined to speculate.
Legal principles established
#- Under Section 42 of the Employment Act, a probationary period shall not exceed six months, extendable by not more than six months with the employee's agreement, and the aggregate cannot exceed twelve months; the provision is mandatory.
- Where the employer fails to prove the reasons for termination, the termination is deemed unfair under Sections 43(1) and 45 of the Employment Act.
Court orders
#- 1.Payment of the difference in one month's notice pay in lieu of notice from basic pay to gross pay amounting to Ksh.38,500
- 2.Compensation equivalent to 12 months' salary for wrongful termination amounting to Ksh.1,111,560 (Ksh.92,630 x 12), grand total Ksh.1,150,060
- 3.Claimant to be issued with a certificate of service
- 4.Costs of the suit borne by the Respondent
- Jurisdiction invoked
- Jurisdiction of the Industrial Court over employment and labour relations disputes (Employment Act, Sections 42, 43 and 45 applied)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "GICHUKI KABUKURU V POSTAL CORPRATION OF KENYA [2012] KEELRC 266 (KLR)", Case Analysis (2012). Cause No 297 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2012/266/eng@2012-10-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.