Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCAllowedCause No 979 of 2014· [2018] KEELRC 1505 (KLR)

Nelly Chelagat Malel v Board of Trustees Carolina for Kibera [2018] KEELRC 1505 (KLR)

Employment and Labour Relations Court of Kenya at Nairobi
29 June 2018
1,865 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

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

#
The claimant, employed on 18 March 2013 as a Monitoring and Evaluation and Learning Officer on a one-year renewable contract at Kshs 105,000 per month, sued the respondent for unfair termination following the termination of her employment on 11 November 2013 on grounds of insubordination, lack of respect for colleagues and failure to promote teamwork. The dispute turned on the validity of the extension of her six-month probationary period and the fairness of the termination. The court found that the probation expired on 17 September 2013, and that the purported extension communicated in late October 2013, after a probationary performance evaluation in which the claimant scored a satisfactory 61 points, was done with malice and was therefore null and void. Under section 42(2) of the Employment Act, any extension of probation requires the employee's agreement, which was absent here. The court further found that the respondent failed to prove and justify the reasons for termination as required by sections 43(1) and 47(5) of the Employment Act, and that it did not follow the escalating disciplinary procedure prescribed by clause 11.13.6 of its own Human Resources Manual, with no new incident or complaint recorded after the performance improvement plan. The termination was accordingly held unfair within the meaning of section 45 of the Act. The court awarded the claimant one month's salary in lieu of notice and seven months' salary as compensation for unfair termination, subject to statutory deductions, plus costs of the suit and interest at court rates from the date of judgment.

Key legal issues

#
01

Validity of the extension of the probationary period

Holding

The purported extension of probation was done with malice and was therefore null and void; the claimant was not a probationary employee at termination.

Reasoning

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.

p. 2
02

Validity of reasons for termination and procedural fairness

Holding

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.

Reasoning

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).

p. 2

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. 1.One month's salary in lieu of notice (Kshs 105,000)
  2. 2.Seven months' salary as compensation for unfair termination of service (Kshs 735,000)
  3. 3.Cost of the suit
  4. 4.Statutory deductions to apply on items (a) and (b), and interest on the decretal sum at court rates from the date of judgment

Authorities

#

Legislation

  • Employment Actsection 43(1)
  • Employment Actsection 47(5)
  • Employment Actsection 42(2)
  • Employment Actsection 45
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.