Anthony Kavinguha v Erica Krug & another [2014] KEELRC 31 (KLR)
The bottom line
#Kenya's Employment Court awarded a manager nearly KShs. 2.9 million because his employer fired him without valid reasons or fair procedure.
What this practically means
#Executive summary
#Key legal issues
#Whether the termination was fair as to validity of reason and fair procedure
The termination was unfair both procedurally and substantively; the reasons were never presented to the claimant beforehand, were ambiguous and amounted to witch-hunting, and the employer failed to follow section 41 of the Employment Act and its own disciplinary procedure
Section 41 of the Employment Act requires an employer to explain reasons for termination and consider representations before terminating for poor performance. There was no letter setting out specific shortcomings, no invitation letter to the review meeting, no evidence of prior performance targets or warnings, and the respondent breached the staged disciplinary procedure in its own handbook. The accusations were ambiguous and some dated back months, constituting an unfair labour practice.
Whether the extension of the claimant's probation was valid
The extension was invalid and unlawful; it was based on the respondent's recruitment challenges and failure to set objectives, not on the claimant's performance
Probation serves to assess suitability for a position. An employer may place an employee promoted to a new senior position on probation, but this does not create a probationary contract where the employee has already served probation on initial employment. The letter extending probation cited the employer's own recruitment challenges and untimely setting of objectives, showing the extension was not attributable to poor performance and was therefore unlawful.
Whether the claimant was entitled to payment in lieu of notice
Yes; two months' salary in lieu of notice awarded at Kshs.598,254/= as the claimant was not on a probationary contract and had over two years' continuous employment
The claimant was promoted, not re-engaged, and his previous contract was never terminated or paid terminal benefits. He had served over two years continuously. As he was not on a probationary contract, the respondent's offer of one week's pay in lieu was inadequate and two months' salary was awarded.
Whether the claimant was entitled to accrued annual leave
Yes; two years' leave at 25 days per year awarded at Kshs.498,662/=; the employer failed to disprove the claim having not kept the records required by sections 10 and 74
Sections 10 and 74 of the Employment Act oblige employers to keep leave records; under section 10(7) failure to produce them places the burden of proving or disproving the alleged term on the employer. The respondent's carry-forward policy of 5 days was not produced and contravened section 26 because leave can only be forfeited after 18 months under section 28(4). The claimant's email showed he had been denied leave three times.
What compensation is payable for unfair termination
Compensatory damages equivalent to six months' salary (Kshs.1,795,182/=) awarded under section 49 of the Employment Act
General damages for wrongful termination are not contemplated by the Employment Act, which instead provides compensatory damages capped at 12 months' salary. Considering the circumstances of termination and the factors in section 49(4), six months' salary was held reasonable. Payment for the unexpired contract term was refused as the law presumes mitigation.
Legal principles established
#- An employee promoted within the same organization, having already served probation on initial employment, is not placed on a probationary contract by a fresh probation on the new position
- An extension of probation not based on the employee's poor performance but on the employer's own shortcomings is unlawful
- An employer cannot forfeit accrued leave before the expiry of the 18-month period prescribed by section 28(4) of the Employment Act; a policy purporting to do so offends section 26
- Simple employment matters sufficiently covered by legislation should not be elevated to the constitutional platform
Court orders
#- 1.Award of Kshs.598,254/= being two months' salary in lieu of notice
- 2.Dismissal of the prayer for severance pay
- 3.Award of Kshs.498,662/= being 2 years leave at 25 days per year
- 4.Dismissal of the prayer for payment for the remaining 14 months of the contract
- 5.Award of Kshs.1,795,182/= being 6 months' salary as compensation for unfair termination
- 6.The Respondent to pay the Claimant's costs of the suit
- 7.Interest on the decretal sum at court rates from date of judgment to payment in full
- Jurisdiction invoked
- Employment and labour relations jurisdiction under the Employment Act (specific article not stated in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Mildred Mudany v Jhpiego Corporation (Kenya) [2019] KEELRC 2264 (KLR)[2019] KEELRC 2264 (KLR)15 Feb 2019
Cite this brief
#Cite this brief
Caselaw, "Anthony Kavinguha v Erica Krug & another [2014] KEELRC 31 (KLR)", Case Analysis (2014). Cause No 72 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/31/eng@2014-12-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.