Odhore v Longhorn Kenya Limited (Cause 752 of 2013) [2015] KEELRC 1659 (KLR)
The bottom line
#A Kenyan court confirmed that probationary employees enjoy full unfair dismissal protections and can be compensated when employers skip fair procedure.
What this practically means
#Executive summary
#Key legal issues
#Whether Section 41 procedural fairness applies to probationary contracts
The court adopted the view that protections under Sections 43 and 45 apply in full to probationers, and awarded compensation because the Claimant was notified of skill gaps but not given procedural fairness.
The Respondent argued, relying on Danish Jalang'o, that Section 41 does not apply to probationary contracts per Section 42(1). The court instead followed Mercy Njoki Karingithi v Emerald Hotels and Resorts, where Radido J held that the protections against unfair and unlawful dismissal under Sections 43 and 45 apply in full to employees on probation. Finding the Claimant was notified of skills gaps but denied the expected procedural fairness, the court awarded one month's salary as recompense, plus terminal dues.
Entitlement to terminal dues and leave
The Claimant was entitled to two weeks' salary in lieu of notice and salary for days worked in March 2013, but not pro rata leave.
It was common ground that the Claimant was entitled to two weeks' salary in lieu of notice. Leave, however, is only earned after one year of service, and the Claimant worked only about five months, so the claim for pro rata leave failed.
Legal principles established
#- Protections against unfair and unlawful dismissal under Sections 43 and 45 of the Employment Act are available in full to employees on probation, entitling an employee denied procedural fairness to compensation.
Court orders
#- 1.Judgment entered for the Claimant for one month salary as compensation
- 2.Two weeks salary in lieu of notice
- 3.Salary for days worked in March 2013
- 4.No order as to costs
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment disputes (Employment Act, Sections 41, 42(1), 43, 45 invoked)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Odhore v Longhorn Kenya Limited (Cause 752 of 2013) [2015] KEELRC 1659 (KLR)", Case Analysis (2015). Not stated in the judgment (Memorandum of Claim filed 22nd May 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/1659/eng@2015-04-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.