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ELRCPartially AllowedIndustrial Court Cause (Memorandum of Claim dated 2nd December 2009, filed 7th December 2009)· [2015] KEELRC 786 (KLR)

John Ochieng Odie v Kenya National Examination Council [2015] KEELRC 786 (KLR)

Industrial Court of Kenya
3 March 2014
3,355 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled an employee labelled 'probationary' was actually permanent, making his dismissal unfair because he was never given a hearing.

What this practically means

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Executive summary

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The claimant, employed by the respondent on 1st December 2008 as Deputy Secretary in charge of Administrative Services, sued for declarations and extensive terminal benefits after his employment was terminated by letter dated 22nd May 2009 following accusations of insubordination and poor performance. The respondent asserted the claimant was on a one-year probationary period and that termination was lawful, notice having been paid. The court framed three issues: whether the claimant was on probation, whether termination was fair, and entitlement to remedies. It held the appointment letter's 'observation for one year' clause did not constitute probation, matching neither the respondent's Terms and Conditions of Service (2-year probation) nor the Employment Act's 6-month cap. The claimant was therefore on permanent and pensionable terms and entitled to the Section 41 procedure, which was not followed, rendering the termination unfair under Section 45. The court awarded one month's notice pay (already paid) and 8 months' salary as compensation under Section 49(1)(c), totalling Kshs 1,430,000 based on a salary of Kshs 178,850. All future-earnings claims (salary, house, medical, responsibility and commuter allowances, insurance to retirement) were dismissed following Menginya S. Salim V KRA and Marete V TSC. Pension claims were dismissed for want of jurisdiction under the Retirement Benefits Act; loan arrears, career prospects and general damages claims were also dismissed. Costs and interest from judgment were awarded to the claimant.

Key legal issues

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01

Whether the claimant was on probation

Holding

He was not on probation; he was on permanent and pensionable terms with transfer of pensionable service from the public service

Reasoning

The appointment letter stated permanent and pensionable terms with one year 'observation'. The respondent's own Terms and Conditions of Service (2003) provide a 2-year probation, while the Act caps probation at 6 months extendable by 6 months. The one-year observation clause matched neither, so the respondent could not retrospectively characterise the employment as probationary.

p. 5
02

Whether the termination was fair

Holding

Termination was unfair because the Section 41 procedure was not followed

Reasoning

Since the claimant was not on probation, he was entitled to the Section 41 procedure (notification and hearing). The respondent relied on authorities on probationary employees, which the court held inapplicable. The failure to subject the claimant to Section 41 made the termination unfair under Section 45, and no hearing was held before the SAC or full council.

p. 5
03

Remedies

Holding

One month's notice pay (already paid) and 8 months' salary as compensation under Section 49(1)(c), totalling Kshs 1,430,000; all future-earnings and other heads dismissed

Reasoning

Taking into account Section 49(4) factors and the claimant's May 2009 salary of Kshs 178,850, the court awarded 8 months' salary. Future salary, allowances and insurance to retirement, pension claims, loan arrears, career prospects and general damages were all refused as either beyond the Act, speculative or outside the court's jurisdiction.

p. 5

Legal principles established

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  • An employee whose terms are permanent and pensionable, and not on probation, is entitled to the procedure under Section 41 of the Employment Act; failure to follow it renders termination unfair under Section 45
  • A letter providing for 'observation for one year' does not constitute a probation period where the statute caps probation at six months renewable for a further six months
  • Future earnings beyond statutory or contractual compensation are not awardable in employment disputes

Court orders

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  1. 1.Declaration that termination of the claimant's employment was unfair (entitlement to Section 41 procedure; failure rendered termination unfair under Section 45)
  2. 2.Payment of 1 month's salary in lieu of notice (already confirmed paid)
  3. 3.Compensation of 8 months' salary under Section 49(1)(c), i.e. Kshs 1,430,000
  4. 4.Dismissal of claims for future salary, house, medical, responsibility and commuter allowances and insurance cover to retirement
  5. 5.Dismissal of the claim for loss of pension rights
  6. 6.Dismissal of the claim for KCB loan arrears and interest of Kshs 609,490.93
  7. 7.Dismissal of the claim for loss of career and promotional prospects
  8. 8.Dismissal of the general claim for damages
  9. 9.Costs of the suit to the claimant
  10. 10.Interest at court rates from the date of judgment

Authorities

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Legislation

  • Employment ActSection 45
  • Employment ActSection 41
  • Employment ActSection 42
  • Employment ActSection 49(1)(c) and 49(4)
  • Employment ActSections 10(3)(b), 35 and 44
  • Retirement Benefits Act(mechanisms for pension disputes; Tribunal)
  • Constitution of KenyaArticle 50
  • Kenya National Examinations Council Terms and Conditions of Service (2003)Probation period; paragraph 6.0 termination clause

Cases cited (10)

  • Jane Wairimu Macharia V Mugo Waweru & Associates
    Industrial Court Cause No. 621 of 2012
  • KSRITAWU V Stanley Kinyanjui and Magnate Ventures Limited
    Industrial Court Cause No. 273 of 2010
  • KADAMAS V Municipality of Kisumu
    [1985] KLR 954
  • Leeson V General Council of Medical Education
    43 CHD 379
  • Mercy W. Kinyua V Westlife Construction Company Ltd
    [2013] eKLR
  • David Mutegi Njue V Tanathi Water Services Board & Another
    [2013] eKLR
  • Simon P. W. Kirimi V KCB Ltd and Another
    HCC No. 998 of 2001
  • Addis V Gramaphone
    (1909) AC 483
  • Menginya S. Salim V KRA
  • Banking Insurance & Finance Union (Kenya) V Kipsigis Teachers Sacco Society Limited
    [2013] eKLR
Jurisdiction invoked
Employment and labour relations jurisdiction under the Employment Act (first-instance industrial cause)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "John Ochieng Odie v Kenya National Examination Council [2015] KEELRC 786 (KLR)", Case Analysis (2014). Industrial Court Cause (Memorandum of Claim dated 2nd December 2009, filed 7th December 2009). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/786/eng@2015-03-03

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