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ELRCPartially AllowedNot stated in the judgment· [2016] KEELRC 134 (KLR)

Patrick Korir Rotich v Unilever Tea Kenya Limited [2016] KEELRC 134 (KLR)

Employment and Labour Relations Court
8 December 2016
DMD.K. Njagi Marete
2,143 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 that if your probation lapses without extension, you're automatically confirmed — and firing you without fair process is unlawful.

What this practically means

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Executive summary

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The claimant, employed as Legal Counsel for Unilever Tea East Africa Ltd on 18th July 2011 under a written contract with a six-month probation, alleged his employment was terminated on 31st May 2012 on probationary terms after the probation had lapsed, in breach of the Employment Act, 2007, the respondent's Human Resource Policy and Article 50 of the Constitution. He sought compensation of twelve months' salary, notice pay, leave, sick leave, house and fuel allowances, pension, bonus, declarations of unlawful termination, a certificate of service, general and punitive damages and costs. The respondent denied irregularity, contending the probationary contract was renewable by law under Section 42(2) and (3) and that termination was for poor performance. The parties agreed to determination by written submissions. The court framed four issues and found the probation had lapsed before termination; the employment was automatically confirmed by effluxion of time since the respondent never formally extended probation. Termination was therefore outside probation and wrongful, unfair and unlawful. However, on relief, the court noted the claimant had never pleaded his monthly salary or emoluments, frustrating computation of compensation, and applying Samuel Kipkoech Keter on the necessity of the letter of appointment and payslips, declined to award monetary compensation. The claim was allowed with costs to the claimant.

Key legal issues

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01

Whether the claimant was on probation at the time of termination

Holding

The claimant was not on probation; his six-month probation had lapsed and the employment was automatically confirmed by effluxion of time

Reasoning

The claimant was employed on 18th July 2011 on a six-month probation. The probation lapsed by January 2012 and the respondent never formally extended it under Section 42(2) of the Employment Act. Relying on Hebson Ngaruiya Waigi and David Namu Kariuki, the court held probation timelines are statutorily guarded and cannot be extended informally beyond the legal period. Termination on 31st May 2012 was therefore outside probation.

p. 4
02

Whether the termination was wrongful, unfair and unlawful

Holding

Having terminated outside the probation period and after automatic confirmation, the termination was irregular, wrongful, unfair and unlawful

Reasoning

Because the employment had been confirmed by effluxion of time, the respondent could not rely on the lighter probationary termination regime under Section 42. Termination of a confirmed employee without adherence to the fair-procedure and substantive-justification requirements of the Employment Act rendered the termination unlawful. The court found this issue settled by its answer to the first issue.

p. 4
03

Whether the claimant is entitled to the relief sought

Holding

The claimant was entitled to relief but not monetary compensation, since he never pleaded his monthly salary or emoluments

Reasoning

The court admitted the claimant was entitled to relief, but noted the pleadings nowhere indicated monthly salary or periodic emoluments, frustrating computation and calibration of compensation. Applying Samuel Kipkoech Keter, the letter of appointment and payslips are essential documents in unfair-termination claims; their absence left the court unable to award the monetary reliefs claimed.

p. 4

Legal principles established

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  • Once a probationary period lapses without extension or confirmation by the employer, the employee is deemed confirmed by effluxion of time and termination thereafter is subject to the full statutory protections against unfair termination
  • A claimant seeking compensation for unlawful termination must plead salary or periodic emoluments; the letter of appointment and payslips are essential documents in such claims

Court orders

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  1. 1.A finding that the termination of the claimant's employment was outside the probation period and therefore irregular
  2. 2.A finding that the termination was wrongful, unfair and unlawful
  3. 3.The claim allowed with costs to the claimant, save that monetary compensation was not awarded due to non-pleading of salary

Authorities

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Legislation

  • Employment Act, 2007Section 5
  • Employment Act, 2007Section 5(2)
  • Employment Act, 2007Section 28(1)
  • Employment Act, 2007Sections 42(2) and (3)
  • Employment Act, 2007Sections 49(1)(a) and (c) as read with Section 50
  • Constitution of Kenya, 2010Article 50

Cases cited (3)

  • Hebson Ngaruiya Waigi Vs. Equitorial Commercial Bank Ltd (2013) eKLR
    (2013) eKLR
  • David Namu Kariuki v Commission for the Implementation of the Constitution (2015) eKLR
    (2015) eKLR
  • Samuel Kipkoech Keter V County Government of Bomet & 3 Others (2016) eKLR
    (2016) eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007

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, "Patrick Korir Rotich v Unilever Tea Kenya Limited [2016] KEELRC 134 (KLR)", Case Analysis (2016). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/134/eng@2016-12-08

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