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ELRCPartially AllowedNot stated in judgment· [2018] KEELRC 540 (KLR)

John Muthomi Mathiu v Mastermind Tobacco (K) Limited [2018] KEELRC 540 (KLR)

Employment and Labour Relations Court
8 November 2018
NMNzioki wa Makau
2,112 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court confirmed employers can end probation without reasons, but must still honour the contractual notice period.

What this practically means

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Executive summary

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The Claimant, an advocate employed as a senior legal officer from 28th April 2014, was dismissed verbally on 3rd September 2014 while recuperating in hospital. He claimed unpaid August salary, salary for days worked, bonus, notice pay, leave, NSSF and pension deductions, and general damages for unlawful, wrongful and unfair termination. The Respondent asserted the dismissal occurred during the 6-month probationary period, relying on Section 42(1) of the Employment Act, and contended that Sections 41, 43 and 45 do not apply to probationary contracts; it also alleged the Claimant failed to return USD 5,500 entrusted to him, causing loss of a business opportunity. The Claimant testified; the Respondent called no witness. The court, adopting Rika J's reasoning in Danish Jalang'o v Amicabre Travel Services Limited, held that Sections 43 and 45 of the Employment Act have no application to probationary contracts; Section 42 is a standalone provision and a reasonable limitation on Article 41 constitutional rights. However, the Claimant was entitled to contractual notice of 2 weeks, which was not given. The Respondent's allegation about the USD 5,500 failed for want of a counterclaim and evidence. The bonus claim failed as discretionary, and the days-worked claim was subsumed in the August salary. The court awarded Kshs. 320,000/- for August 2014 salary, Kshs. 160,000/- for 2 weeks' notice, costs of the suit, and interest at court rates from the date of judgment until payment in full. The claim succeeded only in part; general damages for unfair termination were refused.

Key legal issues

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01

Whether Sections 41, 43 and 45 of the Employment Act apply to probationary contracts

Holding

They do not; Section 42 is a standalone provision regulating probationary employment

Reasoning

The court adopted Rika J's reasoning that importing natural, procedural and substantive justice requirements into probationary contracts would nullify probation law and blur Parliament's intention in creating qualifying periods. Probation is a period for the employer and employee to assess each other, and Section 42 should be read as a reasonable limitation on Article 41 rights.

p. 3
02

Whether the dismissal without notice breached the probationary contract

Holding

Yes - the Claimant was entitled to 2 weeks' notice per the contract, which was not given

Reasoning

While the employer need not give reasons for terminating a probationary contract, the contract required 2 weeks' notice. None was given, so the Claimant was entitled to damages measured by the notice period, being 2 weeks' salary.

p. 3
03

Whether the Respondent's allegation of misappropriated funds (USD 5,500) avails it

Holding

No - the Respondent filed no counterclaim and called no witness or evidence on the alleged funds

Reasoning

The Respondent neither mounted a counterclaim for the funds allegedly lost nor presented any evidence that the Claimant was entrusted with them. The allegation therefore fell away and could not defeat the Claimant's claim.

p. 3

Legal principles established

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  • Sections 43 and 45 of the Employment Act do not apply to termination of probationary contracts; Section 42 is a standalone provision
  • An employee terminated during probation is still entitled to contractual notice
  • Remedy for breach of a probationary contract is contractual damages, not statutory compensation for unfair termination

Court orders

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  1. 1.Kshs. 320,000/- being salary for August 2014
  2. 2.Kshs. 160,000/- being the 2 weeks notice per contract
  3. 3.Costs of the suit
  4. 4.Interest on the sums in (a) and (b) at court rates from date of judgment till payment in full

Authorities

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Legislation

  • Employment ActSection 42(1)
  • Employment ActSection 41
  • Employment ActSection 43
  • Employment ActSection 45
  • Employment Act 2007Section 44(4)
  • Constitution of KenyaArticle 41
  • NSSF ActNot specified

Cases cited (8)

  • Christopher Kisia Kivango v Amicabre Travel Services Limited
    [2014] eKLR
  • Carole Nyambura Thiga v Oxfam Nairobi
    [2013] eKLR
  • Danish Jalang'o & Another v Amicabre Travel Services Limited
    [2014] eKLR
  • Nation Media Group Limited v Onesmus Kilonzo
    [2017] eKLR
  • Momanyi v SDV Transami
  • Mercy Njoki Karingithi
  • Samuel G. Momanyi
  • Catherine E. Nyawira Nyaga
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act and relevant labour law (not expressly cited in judgment)

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, "John Muthomi Mathiu v Mastermind Tobacco (K) Limited [2018] KEELRC 540 (KLR)", Case Analysis (2018). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/540/eng@2018-11-08

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