Mary Kemunto Oyugi v Canton Building & Construction Limited [2018] KEELRC 2322 (KLR)
The bottom line
#What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the termination of the Claimant's employment during probation was unlawful and unfair
- 2.Whether Section 41 of the Employment Act applied to a probationary contract
- 3.What salary the Claimant earned - Kshs. 15,000/- or Kshs. 18,000/- per month
- 4.Whether the Claimant was dismissed or deserted her employment
- 5.What dues, if any, the Claimant was entitled to
Key legal issues
#Whether Section 41 of the Employment Act applies to probationary contracts
It does not; the Claimant was not entitled to the Section 41 process while under probation
Following Rika J's reasoning in Danish Jalang'o v Amicabre, the court held that probation is a fitting period during which employer and employee assess each other. The employee may leave without ramifications and correspondingly dismissal may be effected without the strictures of Section 41. This disposes of the claim of unfair termination.
Whether the Claimant earned Kshs. 15,000/- or Kshs. 18,000/- per month
The court found the Claimant's Kshs. 18,000/- voucher was doctored and she was not candid
The court disbelieved the Claimant's evidence on remuneration, finding she produced a suspect payment voucher intended to mislead the court. Her testimony was characterised as deceitful. The court therefore proceeded on the basis of the Respondent's computation of dues.
Whether the Claimant was entitled to the dues for February and notice
She was entitled to February salary, pro rata leave and one month's notice pay as computed by the Respondent
Although the dismissal was not unfair under Section 41, the Claimant worked in February and was entitled to her dues. The court adopted the Respondent's computation: Kshs. 10,000/- February salary, Kshs. 6,750/- pro rata leave and Kshs. 15,000/- notice pay.
Legal principles established
#- Section 41 of the Employment Act does not apply to employees serving under probation; employers retain discretion whether to confirm or not confirm a probationary employee
- General damages are not available under a contract of service
- An employee on probation is nevertheless entitled to payment for days worked
Court orders
#- 1.Payment of February salary of Kshs. 10,000/-
- 2.Payment of pro rata leave of Kshs. 6,750/-
- 3.Payment of Kshs. 15,000/- as notice for the dismissal
- 4.Each party to bear their own costs of the suit
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original jurisdiction under the Employment Act (first-instance employment claim); no specific constitutional or statutory provision invoked in the judgment extract
Relief refused
#Compensation for unlawful termination
The Claimant was on probation and Section 41 did not apply; dismissal during probation could be effected without the strictures of Section 41
General damages
General damages are not available under a contract of service
Balance of the claim (any further compensation)
The balance of the claim failed
Costs
Each party will bear their own costs of the suit
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The Claimant was not entitled to the process under Section 41 of the Employment Act as she was under the cloud of probation which is a period when the employer and employee are undergoing a fitting process.
The Claimant could leave without ramifications during probation and in the same vein a dismissal could be effected without the strictures of Section 41 being engaged.
General damages are not available under a contract of service.
Each party will bear their own costs of the suit.
The Claimant though dishonest is to receive her February salary which was Kshs. 10,000/-, her pro rata leave of Kshs. 6,750/- and Kshs. 15,000/- as notice for the dismissal.
Issues in the judgment
#The names of the parties are not given in the judgment text; only 'Claimant' and 'Respondent' appear
The case number of the suit is not stated in the judgment text
The judgment is dated 20th December 2017 and signed by Nzioki wa Makau J but delivered on 17th January 2018 by Radido Stephen J
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mary Kemunto Oyugi v Canton Building & Construction Limited [2018] KEELRC 2322 (KLR)", Case Analysis (2017). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/2322/eng@2018-01-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.