Fred Okotho Ndonji v Cummins Cogeneration Kenya Limited [2018] KEELRC 1155 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Validity of the purported extension of probation in July 2014
The extension was invalid; the Claimant was deemed a permanent employee from 20/1/2014 upon expiry of the initial six-month probation
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.
Lawfulness of the termination
The termination was unfair and unlawful, effected without valid reasons or due process
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.
Lawfulness of the March 2014 salary deductions
The deduction of Kshs.22,116 for the month of March 2014 was unlawful and must be refunded
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.
Legal principles established
#- 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
#- 1.Payment of 1 month salary in lieu of notice of Kshs.50,000/=
- 2.Payment of Kshs.22,116/= deducted from the Claimant's salary during March 2014
- 3.Payment of 12 months' salary as damages for unfair and unlawful termination, Kshs.600,000/= (total award Kshs.672,116/=)
- 4.Respondent to pay costs of the suit plus interest at court rates from the date of judgment
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.