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ELRCPartially AllowedCause No. 525 of 2015· [2018] KEELRC 1155 (KLR)

Fred Okotho Ndonji v Cummins Cogeneration Kenya Limited [2018] KEELRC 1155 (KLR)

Employment and Labour Relations Court of Kenya
24 September 2018
1,465 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 an employee whose probation expired without employer feedback is automatically confirmed, so terminating him without a hearing was unfair.

What this practically means

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Executive summary

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The Claimant, employed on 21 July 2013 as an on-site Project Supervisor on a six-month probation, claimed that the Respondent unlawfully extended his probation, deducted Kshs.22,116 from his March 2014 salary while he was unwell after a snake bite at employer-arranged accommodation, and terminated his employment on 8 August 2014 on grounds of poor performance without a hearing. He sought payment of the withheld salary and damages for breach of fair labour practices, discrimination and legitimate expectation. The Respondent filed a Response but failed to attend the hearing on 21 May 2018, and its case was closed without any witness, leaving the Claimant's case uncontroverted. Holding that Section 42(2) of the Employment Act caps probation at six months, extendable only by agreement, and that the employer's silence after January 2014 meant deemed confirmation (following David Namu Kariuki and Gichuki Kabukuru), the court found the July 2014 extension invalid and the Claimant a permanent employee from 20 January 2014. The termination, purportedly on probation terms, violated Sections 41 and 45 of the Employment Act for want of procedure and valid reasons. The court allowed the claim, awarding one month's salary in lieu of notice (Kshs.50,000), refund of Kshs.22,116, and twelve months' salary (Kshs.600,000) as damages for unfair termination, totalling Kshs.672,116, plus costs and interest from the date of judgment.

Key legal issues

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01

Validity of the purported extension of probation in July 2014

Holding

The extension was invalid; the Claimant was deemed a permanent employee from 20/1/2014 upon expiry of the initial six-month probation

Reasoning

Section 42(2) of the Employment Act caps probation at six months, extendable by a further six months only with the employee's agreement. The Respondent failed to communicate at the end of the initial period in January 2014 and only purported to extend probation in July 2014, without the Claimant's agreement. The court held this was done in bad faith, and that silence by the employer meant the employee was rightly confirmed. Following David Namu Kariuki and Gichuki Kabukuru, the Claimant was a permanent employee.

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02

Lawfulness of the termination

Holding

The termination was unfair and unlawful, effected without valid reasons or due process

Reasoning

Having been deemed a permanent employee, the Claimant could not be terminated under probation terms. Section 41 of the Employment Act required that he be afforded a hearing and allowed to call evidence and cross-examine witnesses; this was never done. The Respondent also failed to call any evidence, leaving the Claimant's case uncontroverted, so the requirements of Section 45(2) — valid reason, fair reason and fair procedure — were not proved.

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03

Lawfulness of the March 2014 salary deductions

Holding

The deduction of Kshs.22,116 for the month of March 2014 was unlawful and must be refunded

Reasoning

The Claimant was unwell following the snake bite and the Respondent deducted sums allegedly for days not worked, contrary to the contract and the law, despite email correspondence from his supervisor indicating he worked during March. The Respondent offered no explanation, having failed to appear at trial.

p. 3

Legal principles established

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  • An employee's probationary period cannot exceed six months, and any extension requires the employee's agreement
  • An employee is deemed confirmed in employment upon expiry of the probationary period where the employer remains silent
  • Termination of employment requires a valid reason and fair procedure including a hearing under Section 41 of the Employment Act

Court orders

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  1. 1.Payment of 1 month salary in lieu of notice of Kshs.50,000/=
  2. 2.Payment of Kshs.22,116/= deducted from the Claimant's salary during March 2014
  3. 3.Payment of 12 months' salary as damages for unfair and unlawful termination, Kshs.600,000/= (total award Kshs.672,116/=)
  4. 4.Respondent to pay costs of the suit plus interest at court rates from the date of judgment

Authorities

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Legislation

  • Employment ActSection 42(2)
  • Employment ActSection 41
  • Employment ActSection 45(2)

Cases cited (2)

  • David Namu Kariuki vs Commission for the Implementation of the Constitution
    (2015) eKLR
  • Gichuki Kabukuru vs Postal Corporation of Kenya
    (2012) eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (not expressly cited in judgment); claim filed as Memorandum of Claim under the ELRC's employment jurisdiction

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, "Fred Okotho Ndonji v Cummins Cogeneration Kenya Limited [2018] KEELRC 1155 (KLR)", Case Analysis (2018). Cause No. 525 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1155/eng@2018-09-24

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