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ELRCDismissedNot stated in the judgment (Respondent's application dated 17th December, 2013 in the Claimant's suit founded on Memorandum of Claim dated 8th March, 2013)· [2014] KEELRC 1112 (KLR)

Leah Wakio Ngami v Optica Limited [2014] KEELRC 1112 (KLR)

Industrial Court of Kenya (Employment and Labour Relations Court)

26 June 2014

DMD. K. Njagi Marete

970 words in judgment

View original judgment Read on Kenya Law Watch case

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The bottom line

Kenya's employment court refused to strike out an unfair termination claim because disputed facts about probation must be tested at a full trial.

What this practically means

Executive summary

The Respondent (employer), as applicant, filed a Notice of Motion dated 17th December, 2013 seeking to strike out the Claimant's Memorandum of Claim dated 8th March, 2013 and to dismiss the suit, on grounds that the claim was frivolous, vexatious and an abuse of court process and disclosed no reasonable cause of action. The applicant contended that the claimant was engaged on 2nd October, 2012 on a contract dated 1st November, 2012 containing a three-month probationary clause, and that her services were terminated on 16th November, 2012 with one week's notice, invoking Section 42(1) of the Employment Act, 2007, which excludes Section 41 procedural guarantees for probationers. Counsel for the applicant relied on Carole Nyambura v Oxfam (Industrial Court Cause No. 1979 of 2013), where Rika, J. held that probationary employment is at-will and outside unfair dismissal protections. Mr. Obok, for the claimant, opposed the application, arguing that key grounds required evidence only obtainable at trial, that the annexed documents disclosed contradictions on dates, and that termination in fact arose from a protest against a salary reduction, rendering Sections 41 and 42 inapplicable. The court agreed that the parties' factual positions were irreconcilable and controverted, that the disputed issues - including the notice of termination and the true ground of termination - could not be determined at an interlocutory stage, and that the application was premature. The application was dismissed with costs to the claimant, allowing the claim to proceed to trial.

Key legal issues

Whether a claim founded on termination during alleged probation is suitable for striking out without trial

Holding

No - the application was premature because the material facts are contested, including whether termination was during probation and on what grounds

Reasoning

The applicant asserted the claimant was on a three-month probationary contract terminated with one week's notice, invoking Section 42(1) of the Employment Act. The claimant disputed this, contending termination arose from a protest against a salary reduction. The court found these competing factual assertions could not be resolved on affidavit material at an interlocutory stage and required full interrogation at trial.

p. 2

Applicability of Sections 41(1) and 42(1) of the Employment Act, 2007 to probationary contracts

Holding

Considered but not applied at this stage; the court found these provisions inapplicable on the contested facts, termination having allegedly been on grounds of protest against salary reduction

Reasoning

Counsel relied on Section 42(1), which excludes Section 41(1) procedural guarantees for probationers, and on Carole Nyambura v Oxfam. The claimant countered that termination was on grounds of a protest against reduction of salary, not poor performance, so the probation provisions did not squarely apply. The court accepted that these factual disputes precluded a determinative ruling on the statutory provisions at the interlocutory stage.

p. 2

Legal principles established

Disputed factual issues, including grounds of and notice of termination, cannot be resolved on a striking-out application and must be left for trial

Court orders

1.The Respondent's/Applicant's Notice of Motion dated 17th December, 2013 seeking to strike out the Claimant's Memorandum of Claim is dismissed
2.Costs of the application awarded to the Claimant

Authorities

Legislation

Employment Act, 2007Section 42(1)
Employment Act, 2007Section 41(1)
Employment Act, 2007Sections 41 and 42 generally

Cases cited (1)

Carole Nyambura Vs Oxfam
Industrial Court Cause No. 1979 of 2013

Jurisdiction invoked: Original employment and labour relations jurisdiction of the Industrial Court; no specific constitutional or statutory provision invoked in the judgment.

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Leah Wakio Ngami v Optica Limited [2014] KEELRC 1112 (KLR)", Case Analysis (2014). Not stated in the judgment (Respondent's application dated 17th December, 2013 in the Claimant's suit founded on Memorandum of Claim dated 8th March, 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/1112/eng@2014-06-26

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