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ELRCPartially AllowedCause No. 601 of 2014· [2018] KEELRC 1566 (KLR)

Bennah Namaemba Kilwake v Avic International Real Estate Kenya [2018] KEELRC 1566 (KLR)

Employment and Labour Relations Court
28 June 2018
HWHellen S. Wasilwa
1,021 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 employees fired during probation aren't entitled to a hearing, but their employer must still pay notice.

What this practically means

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Executive summary

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The Claimant, employed as a Public Relations Manager by the Respondent under a contract dated 2nd September 2013 at a basic salary of Kshs. 108,750 per month, sued for damages for unlawful termination and unpaid dues after receiving a termination letter dated 29th November 2013 (which she said she received by email) on grounds of non-performance, absenteeism, lack of medical report and late reporting. She alleged the termination breached the Employment Act, no notice was given, and she sought six months' pay (Kshs. 652,500), general damages of Kshs. 500,000, and relocation-related expenses. The Respondent admitted the employment and salary but asserted she was still on probation and lawfully terminated with sufficient notice under the contract and the Employment Act. The court found that under Clause 5 of the contract, the three-month probation ran to 2nd December 2013, and the termination on 2nd December 2013 fell on the last day of probation. Section 42(1) of the Employment Act exempts probationary terminations from the Section 41 hearing requirements, so no disciplinary hearing was required. However, the Respondent failed to give the contractual notice or pay in lieu, and the court awarded one month's salary (Kshs. 108,750) as notice pay. The broader damages claims were rejected. The court also awarded the Claimant costs of the suit and ordered issuance of a Certificate of Service. Judgment delivered on 28th June 2018 by Hellen S. Wasilwa J.

Key legal issues

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01

Whether the Claimant was terminated during probation and therefore exempt from Section 41 procedural protections

Holding

Yes - termination on 2/12/2013 fell on the last day of the three-month probation period, so Section 42(1) applied and no disciplinary hearing was required

Reasoning

The contract dated 2.9.2013 provided for a three-month probation ending 2.12.2013. The termination date fell on the last day of probation. Under Section 42(1) of the Employment Act, the procedural protections of Section 41 do not apply to probationary contracts. The Claimant's contention that a disciplinary hearing was required therefore failed; the only lapse was the want of the contractual/notice payment.

p. 2
02

What notice was the Claimant entitled to

Holding

The 7-day notice clause applied only to termination within the first month; the Claimant was instead entitled to one month's salary in lieu of notice, which the court awarded

Reasoning

Clause 5 of the contract required seven days' written notice only if termination occurred during the first month of employment. Since the Claimant was terminated at the end of the probation period, the court treated her as entitled to one month's pay in lieu of notice, quantified at Kshs. 108,750, being her basic salary. No other damages were warranted.

p. 2

Legal principles established

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  • Section 41 procedural requirements (hearing) do not apply to termination of a probationary contract, per Section 42(1) of the Employment Act
  • An employee terminated during probation is entitled only to the notice or pay in lieu of notice provided by contract and Section 42 of the Employment Act

Court orders

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  1. 1.Award of one month's salary in lieu of notice (Kshs. 108,750)
  2. 2.Costs of the suit to the Claimant
  3. 3.Issuance of a Certificate of Service to the Claimant

Authorities

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Legislation

  • Employment ActSection 42
  • Employment ActSection 42(1)
  • Employment ActSection 41

Cases cited (2)

  • David Namu Kariuki Vs Metal Crowns Limited
    (2013) eKLR
  • James O. Oloo Vs Tana and Athi River Development Authority
    (2016) eKLR
Jurisdiction invoked
Employment and labour relations jurisdiction of the Employment and Labour Relations Court (Cause No. 601 of 2014, claim for unfair termination and unpaid dues)

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, "Bennah Namaemba Kilwake v Avic International Real Estate Kenya [2018] KEELRC 1566 (KLR)", Case Analysis (2018). Cause No. 601 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1566/eng@2018-06-28

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.