Zadarack Oyaro Achoki v Kenya Railways Corporation [2018] KEELRC 1416 (KLR)
The bottom line
#A Kenyan court ruled that probation cannot be extended without the employee's agreement, and firing without notice or hearing was unfair.
What this practically means
#Executive summary
#Key legal issues
#Whether the termination was of probationary service
No - the agreed 3-month probation lapsed on 06.03.2012; the purported extension was not agreed and was null and void, so section 42 of the Employment Act did not apply
The contract fixed probation at 3 months ending around 06.03.2012. The respondent relied on a memo of 28.03.2012 extending probation, but the court found no agreement by the claimant to the extension. Where parties elect terms better than section 42's statutory minimum, the contractual clause applies strictly. The Staff Rules and Regulations were not exhibited to justify extension. The respondent's own reliance on clause 25 (post-probation termination notice) showed it knew the termination fell outside probation.
Whether the termination was unfair
Yes - the procedure was unfair as the claimant received no notice or hearing, and the reasons were therefore not valid under section 43
Parties incorporated the Employment Act into the contract. Under section 45, termination is fair only if reasons are valid and procedure fair. The claimant was given no notice or hearing before the termination letter. Instead of confirming him or terminating on performance/references as agreed, the respondent invented a probation extension. Having lapsed probation and terminated on alleged misconduct or poor performance, the respondent was bound by section 41 to give notice and a hearing; failure rendered the termination procedurally unfair.
Whether the claimant was entitled to the remedies prayed for
Partially - reinstatement was surrendered; the discrimination claim failed; only one month's pay (Kshs.346,000) was awarded as compensation under section 49
The reinstatement prayer was surrendered. The discrimination claim failed because the alleged differential treatment over practising certificates was not established. On compensation, the court weighed the short service of about six months, non-confirmation, condonation of the probation extension, and acceptance of three months' terminal pay, concluding one month's pay under section 49 met the ends of justice.
Legal principles established
#- A probationary period fixed by contract cannot be extended without the agreement of the parties; the contractual terms apply strictly over statutory defaults where the parties elected better terms
- A purported extension of probation outside the parties' contractual provision is null and void
- Once the probationary period lapses, termination requires valid reasons and a fair procedure including notice and hearing under sections 41, 43 and 45 of the Employment Act
Court orders
#- 1.Judgment entered for the claimant against the respondent for payment of Kshs.446,000.00 (being one month's pay of Kshs.346,000.00 as compensation for unfair termination plus partial costs of Kshs.100,000.00) by 01.09.2018
- 2.Failing payment, interest to run at court rates from the date of judgment till full payment
- 3.Respondent to pay claimant's partial costs of the suit fixed at Kshs.100,000.00 only
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (employment dispute)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Zadarack Oyaro Achoki v Kenya Railways Corporation [2018] KEELRC 1416 (KLR)", Case Analysis (2018). Cause No 965 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1416/eng@2018-07-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.