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ELRCPartially AllowedCause No 965 of 2013· [2018] KEELRC 1416 (KLR)

Zadarack Oyaro Achoki v Kenya Railways Corporation [2018] KEELRC 1416 (KLR)

Employment and Labour Relations Court
20 July 2018
2,492 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 probation cannot be extended without the employee's agreement, and firing without notice or hearing was unfair.

What this practically means

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Executive summary

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The claimant, engaged as Corporation Secretary by letter of appointment dated 12.10.2011, served on a contractual three-month probation that lapsed around 06.03.2012. On 26.06.2012 the respondent's Board terminated his services citing poor performance during probation, bringing the office into disrepute, and failure to hold a practising certificate. The respondent relied on a memo of 28.03.2012 purporting to extend probation, and on section 42 of the Employment Act. The court framed three issues: whether the termination was of probationary service; whether it was unfair; and what remedies were due. It held that the parties had elected probation terms better than section 42 and never agreed to an extension; the purported extension was null and void and the probation had lapsed before termination. Consequently, the respondent was bound to give notice and a hearing under section 41 before terminating on alleged misconduct or poor performance; none was given, rendering the termination procedurally unfair and the reasons invalid under sections 43 and 45. On remedies, reinstatement was surrendered, the Kshs.6,000,000 discrimination claim failed for want of proof, and considering the short service and condonation of the extension, only one month's pay (Kshs.346,000) was awarded under section 49. Judgment of Kshs.446,000 inclusive of partial costs fixed at Kshs.100,000 was entered, payable by 01.09.2018, with interest at court rates on default.

Key legal issues

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01

Whether the termination was of probationary service

Holding

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

Reasoning

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.

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02

Whether the termination was unfair

Holding

Yes - the procedure was unfair as the claimant received no notice or hearing, and the reasons were therefore not valid under section 43

Reasoning

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.

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03

Whether the claimant was entitled to the remedies prayed for

Holding

Partially - reinstatement was surrendered; the discrimination claim failed; only one month's pay (Kshs.346,000) was awarded as compensation under section 49

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 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. 2.Failing payment, interest to run at court rates from the date of judgment till full payment
  3. 3.Respondent to pay claimant's partial costs of the suit fixed at Kshs.100,000.00 only

Authorities

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Legislation

  • Employment Act, 2007section 42 (including section 42(2))
  • Employment Act, 2007section 45
  • Employment Act, 2007section 43
  • Employment Act, 2007section 41
  • Employment Act, 2007section 49
  • Public Officer Ethics Actnot specified (cited in termination letter)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (employment dispute)

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, "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.