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ELRCPartially AllowedNot stated in judgment (Employment and Labour Relations Court cause, referred to only as the Claimant's Memorandum of Claim)· [2015] KEELRC 1204 (KLR)

Isaac Ochieng Odul v Pan Africa Express Transport Ltd [2015] KEELRC 1204 (KLR)

Employment and Labour Relations Court of Kenya
22 January 2015
NMNzioki wa Makau
1,716 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ruled that probationary employees get full unfair dismissal protection, and an employer must still follow the law even when theft is alleged.

What this practically means

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Executive summary

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The Claimant, a courier employed by the Respondent from around March 2012 under successive contracts ending 29 June 2012, sued for payment in lieu of notice, June 2012 salary, accrued leave, and a certificate of service after his services were terminated amid allegations of theft of a client's goods. The Respondent defended the suit on the basis that the Claimant was a probationary employee summarily dismissed for grave misconduct, dishonesty, theft and corrupt dealings, contending that under Sections 41(1) and 42(1) of the Employment Act procedural fairness did not apply to probationary contracts, citing Danish Jalang'o v Amicabre Travel Services Ltd. The court declined to follow that position, aligning instead with Mercy Njoki Karingithi v Emerald Hotels and Samuel G. Momanyi v Attorney General, holding that protections against unfair dismissal under Sections 43 and 45 apply in full to probationary employees and that procedural fairness cannot be discarded merely because an employee is on probation. The court found the Claimant had proved his case on a balance of probabilities: he was never informed his contract had ended until the Respondent wrote to his advocate, and the Respondent's own witness had no evidence that he stole the goods. Notice pay and June 2012 salary were awarded. However, the claim for accrued leave failed, the court accepting that the Claimant had not earned any leave. He was also found entitled to a certificate of service under Section 50 of the Employment Act. Judgment was entered for the Claimant with costs of the suit.

Key legal issues

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01

Whether procedural fairness applies to termination of probationary contracts

Holding

Yes. The court declined to follow the proposition that employers need not observe procedural fairness for probationary employees, holding that an employer must at least notify the employee of termination.

Reasoning

The Respondent relied on Rika J.'s decision in Danish Jalang'o v Amicabre Travel Services Ltd that substantive grounds need not be proved for probationary contracts. The court disagreed, aligning instead with Radido J. in Mercy Njoki Karingithi v Emerald Hotels and the dictum of Lenaola J. in Samuel G. Momanyi v Attorney General declaring Section 45(3) unconstitutional for denying employees with less than 13 months' service legal redress. The court reasoned that limiting protection by length of service could defeat redress for all short contracts, and that the least an employer can do is inform the employee that the contract has been terminated.

p. 3
02

Whether the Claimant proved unfair termination despite the theft allegation

Holding

Yes, on a balance of probabilities. The termination failed to accord with the law because the Claimant was never informed his contract was at an end.

Reasoning

The Claimant testified he was never formally accused before a panel, received no reply to his email to Human Resources, and learned of the termination only from a letter the Respondent wrote to his advocate. The Respondent's witness conceded she had no evidence that the Claimant took the goods and that the police investigation was still ongoing. The court held the theft allegation did not matter where the statutory termination procedure was not followed, and awarded notice pay and salary for days worked.

p. 3
03

Entitlement to accrued leave

Holding

The claim for accrued leave failed because the Claimant had not earned any leave.

Reasoning

The Claimant himself conceded in cross-examination that he had not earned any leave as at the date of his arrest, having worked only 29 days on the new contract. The Respondent's witness likewise testified he was not entitled to leave as he had not earned it. On this evidence the court found the claim unsustainable.

p. 3
04

Entitlement to a certificate of service

Holding

The Claimant is entitled to a certificate of service as a statutory requirement under Section 50 of the Employment Act.

Reasoning

The Claimant claimed a certificate of service, which the court noted is a requirement of the law under Section 50 of the Employment Act. It therefore directed that the certificate be issued strictly in terms of the statutory provisions.

p. 3

Legal principles established

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  • Procedural fairness applies to employees on probation; an employer must at least inform the employee that the contract is being terminated
  • Sections 43 and 45 protections under the Employment Act are available in full to employees on probation
  • An allegation of theft does not excuse non-compliance with the termination procedures prescribed by law

Court orders

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  1. 1.Judgment entered for the Claimant against the Respondent for notice pay of Kshs. 21,500/-
  2. 2.Kshs. 20,784.30 for days worked in June 2012
  3. 3.Costs of the suit to the Claimant

Authorities

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Legislation

  • Employment ActSection 41(1)
  • Employment ActSection 42(1)
  • Employment ActSection 43
  • Employment ActSection 45
  • Employment ActSection 45(3)
  • Employment ActSection 50

Cases cited (4)

  • Danish Jalang'o & Another v Amicabre Travel Services Ltd
    Cause [2014] eKLR
  • Mercy Njoki Karingithi v Emerald Hotels and Resorts Limited
    [2014] eKLR
  • Samuel G. Momanyi v The Attorney General & Another
    [2012] eKLR
  • Onesmus Musyoki Kilonzo v Nation Media Group
    Cause 2355 of 2012 (unreported)
Jurisdiction invoked
Original employment and labour relations jurisdiction (Employment Act; claim for unlawful/summary dismissal of a probationary contract)

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, "Isaac Ochieng Odul v Pan Africa Express Transport Ltd [2015] KEELRC 1204 (KLR)", Case Analysis (2015). Not stated in judgment (Employment and Labour Relations Court cause, referred to only as the Claimant's Memorandum of Claim). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/1204/eng@2015-01-22

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