Elizabeth Mwikali Mwendwa v Kenya Investment Authority [2018] KEELRC 216 (KLR)
The bottom line
#A Kenyan court ruled you cannot fire someone as a 'probationer' after 12 months — this employer paid nearly KShs 1 million for doing just that.
What this practically means
#Executive summary
#Key legal issues
#Whether the Claimant was still on probation when terminated on 02/09/2011
The claimant was not on probation at termination; the statutory maximum probation of 12 months had expired on 08/08/2011
She was employed on 06/08/2010 on six months' probation. Section 42(2) caps probation at six months, extendable by a further six months with the employee's agreement, i.e. a maximum of 12 months. She was never terminated or informed of extended probation by 08/08/2011, and the court found no express communication of any deferment of confirmation. By 02/09/2011 she had passed the statutory maximum and could not be deemed on probation.
Whether the termination was lawful
The termination was unfair and unjustified because no valid reason was proved and no hearing was accorded
Having ceased to be on probation, the claimant was entitled to the protections of Sections 41 and 45 of the Employment Act. There was no indication she was invited to a disciplinary hearing or informed of the reasons the respondent was considering terminating her services. Under Section 45, an employer must prove a valid and fair reason and fair procedure; the respondent failed to do so, having instead relied on non-confirmation of a probationary contract that had legally expired.
Whether the claimant was entitled to the remedies sought
The court awarded notice pay and six months' salary as compensation for unlawful termination, plus costs and interest, but did not award the damages for downgrade/demotion or general damages sought
Relying on the statutory remedies framework, the court limited the award to one month's salary in lieu of notice and six months' salary as compensation for unlawful termination, computed on her Grade 7 salary of 137,040/=, with costs and interest from the date of judgment. The heads claiming damages for demotion, garnished salary and general damages were not addressed in the final orders.
Legal principles established
#- A probationary period may not exceed six months, extendable by a further six months only with the employee's agreement; after the maximum 12 months the employee cannot be deemed to be on probation.
- An employee who is no longer on probation cannot be terminated without the due process under Section 41 of the Employment Act, including an opportunity to be heard and make representations.
- Termination is unfair where the employer fails to prove a valid and fair reason and that fair procedure was followed, under Section 45 of the Employment Act.
Court orders
#- 1.Payment of 1 month's salary in lieu of notice = Kshs 137,040
- 2.Payment of 6 months' salary as compensation for unlawful termination = 6 x 137,040 = Kshs 822,240 (total award Kshs 959,280)
- 3.Respondent to pay costs of the suit plus interest at Court rates with effect from the date of the judgment
- Jurisdiction invoked
- Employment and labour relations jurisdiction over a claim of unfair downgrade and unfair termination of employment (Employment Act 2007)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Kennedy Nyakundi v Powerhive East Africa Limited [2021] KEELRC 555 (KLR)[2021] KEELRC 555 (KLR)5 Nov 2021followed
Cite this brief
#Cite this brief
Caselaw, "Elizabeth Mwikali Mwendwa v Kenya Investment Authority [2018] KEELRC 216 (KLR)", Case Analysis (2018). Cause No. 1659 of 2011 (Memorandum of Claim dated 15/09/2011). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/216/eng@2018-12-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.