Nelly Chelagat Malel v Board of Trustees Carolina for Kibera [2018] KEELRC 1505 (KLR)
The bottom line
#A Kenyan court ruled that firing an employee without proof of valid reasons or following the employer's own procedures makes the dismissal unlawful.
What this practically means
#Executive summary
#Key legal issues
#Validity of the extension of the probationary period
The purported extension of probation was done with malice and was therefore null and void; the claimant was not a probationary employee at termination.
The probation ended on 17 September 2013 but the extension was communicated some one and a half months later, after a probationary performance evaluation not provided for in the appointment letter, in which the claimant scored a satisfactory 61 points. Section 42(2) requires the employee's agreement to any extension. The claimant justifiably protested, and termination followed shortly thereafter for the same old reasons, allowing the court to read malice into the extension.
Validity of reasons for termination and procedural fairness
The respondent failed to prove and justify the reasons for termination, and did not follow the escalating disciplinary procedure in clause 11.13.6 of its own manual; the termination was unfair under section 45 of the Employment Act.
The termination letter cited insubordination and lack of respect for colleagues, but no new incident or complaint post-dated the performance improvement plan, which implied past incidents would not found disciplinary action. Clause 11.13.6 required escalating reprimands and suspensions before termination for insubordination, and there was no evidence this procedure was followed. The respondent thus failed to discharge its burden under sections 43 and 47(5).
Legal principles established
#- Under section 43(1) of the Employment Act, the employer bears the burden of proving the reason or reasons for termination, failing which the termination is deemed unfair.
- An employer must follow the disciplinary procedure set out in its own human resource manual before terminating employment.
Court orders
#- 1.One month's salary in lieu of notice (Kshs 105,000)
- 2.Seven months' salary as compensation for unfair termination of service (Kshs 735,000)
- 3.Cost of the suit
- 4.Statutory deductions to apply on items (a) and (b), and interest on the decretal sum at court rates from the date of judgment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act (sections 42(2), 43, 45 and 47(5) applied)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nelly Chelagat Malel v Board of Trustees Carolina for Kibera [2018] KEELRC 1505 (KLR)", Case Analysis (2018). Cause No 979 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1505/eng@2018-06-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.