George Otieno Omollo v Medimart Healthcare Limited [2018] KEELRC 938 (KLR)
The bottom line
#Kenyan probationary employees cannot sue for unfair termination, but are still entitled to seven days' notice pay and prorata leave.
What this practically means
#Executive summary
#Key legal issues
#Whether a probationary employee can maintain a claim for unlawful termination
The claim has no basis in law; Section 42(1) of the Employment Act, 2007 excludes the Section 41 procedural guarantees for probationary contracts
The Claimant's appointment letter placed him on six months' probation, and he admitted still being on probation at termination. Section 42(1) provides that Section 41 does not apply to termination of a probationary contract. The Court found no legislative intent to distinguish between unfair termination and wrongful dismissal, as the Act's remedies apply across the board.
Entitlement to notice pay and leave for a probationary employee
Seven days' notice pay and prorata leave for four completed months of service
Section 42(4) of the Employment Act grants a probationary employee seven days' notice rather than one month. Leave entitlement accrues only for completed months of service, computed on the salary of Kshs. 30,000, yielding Kshs. 7,000 for each head, a total of Kshs. 14,000.
Legal principles established
#- The Section 42(1) limitation on probationary employees' claims applies regardless of whether the separation is labelled unfair termination or wrongful dismissal
- Probationary employees are entitled to seven days' notice under Section 42(4) of the Employment Act
Court orders
#- 1.Judgment entered in favour of the Claimant for 7 days' pay in lieu of notice (Kshs. 7,000)
- 2.Prorata leave pay for 4 months (Kshs. 7,000), total Kshs. 14,000
- 3.The amount to attract interest at court rates from the date of delivery of judgment until payment in full
- 4.Each party to bear their own costs
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "George Otieno Omollo v Medimart Healthcare Limited [2018] KEELRC 938 (KLR)", Case Analysis (2018). Cause No 1958 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/938/eng@2018-10-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.