David Otieno v Kisumu Water & Sewerage Co. Ltd [2015] KEELRC 1631 (KLR)
The bottom line
#A Kenyan employer cannot put a long-serving worker on probation or fire them without following the Employment Act's fair procedure.
What this practically means
#Executive summary
#Key legal issues
#Whether the Claimant was in employment before the date of the written contract
Yes; the Claimant was in employment before the contract date, as evidenced by his testimony corroborated by the certificate of excellence issued 21st December 2012, which was not controverted.
The Claimant testified he was employed as a casual from July 2009 and received a certificate of excellence in December 2012, months before the contract of 26th February 2013. The Respondent's witness doubted the certificate's authenticity but could not disprove it, and confirmed the Respondent does issue such certificates. The evidence stood uncontroverted, so probation from the contract date was unlawful.
Whether the termination was unfair
Yes; the termination was unfair because the Claimant should not have been on probation and was not accorded the Section 41 procedure, and because by 1st October 2013 he was no longer on probation.
Since the Claimant was already in employment, placing him on probation was unlawful and the summary process under Section 42 was unavailable. He was entitled to the Section 41 process, which was not followed. Further, the Respondent could not prove when the termination letter was served, so the Claimant's evidence of service on 1st October 2013 stood uncontested, meaning he was not on probation then.
Whether the Claimant is entitled to the remedies sought
Partially; the court awarded notice pay, unpaid salary for August and September 2013, and 3 months' salary as compensation, with costs and interest, but did not grant reinstatement or general damages.
Having found the termination unfair, the court exercised its discretion to award the specific monetary remedies: one month's salary in lieu of notice (Kshs.31,151), salary for August and September 2013 (Kshs.62,302), and 3 months' salary as compensation (Kshs.93,453), plus costs and interest. Reinstatement and general damages were not granted.
Legal principles established
#- An employee already in employment cannot lawfully be subjected to probation from the date of a later contract of employment.
- Termination of employment must comply with the fair procedure under Section 41 of the Employment Act.
- A party bears the consequences of failing to prove the date and manner of service of a termination letter.
Court orders
#- 1.Declaration that the termination of the Claimant's employment was unfair
- 2.One month's salary in lieu of notice awarded at Kshs.31,151
- 3.Salary for August and September 2013 awarded at Kshs.62,302
- 4.Compensation of 3 months' salary for unfair termination awarded at Kshs.93,453
- 5.Respondent to pay the Claimant's costs of the suit
- 6.Decretal sum to attract interest at court rates until payment in full
- Jurisdiction invoked
- Industrial Court of Kenya jurisdiction over employment and labour relations disputes (Employment Act; Industrial Court established under the Industrial Court Act)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "David Otieno v Kisumu Water & Sewerage Co. Ltd [2015] KEELRC 1631 (KLR)", Case Analysis (2015). Industrial Cause No. 315 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/1631/eng@2015-07-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.