Fedelix Mwendwa Muli v Bamburi Cement Limited [2018] KEELRC 2336 (KLR)
The bottom line
#A signed job offer is a binding employment contract in Kenya, so an employer who changes its mind owes notice pay, though probationary staff can't claim unfair termination.
What this practically means
#Executive summary
#Key legal issues
#Whether offer and acceptance created a binding employment contract
Yes - a binding probationary contract was created on 22nd October 2014 when the Claimant signed acceptance, satisfying Sections 9(2) and 9(3) of the Employment Act
The Respondent fulfilled Section 9(2) by issuing an offer with all particulars of employment, and the Claimant fulfilled Section 9(3) by signing acceptance witnessed by a third party. The letter of offer itself stated that offer and acceptance constituted a binding contract, and mentioned no other contract to be executed later. The stated appointment date of 1st November 2014 was not the date the legal relationship was created.
Effect of withdrawal of the offer after acceptance
Withdrawal was ineffective; the Respondent should have terminated the probationary contract under its clause 2.1, paying notice, rather than purporting to withdraw from contractual obligations
Once the contract was concluded on acceptance, the Respondent was bound by its terms and the law. The adverse reference about sabotage should have been dealt with under the probation clause, which allowed the Respondent to monitor the Claimant's suitability. Clause 2.1 gave a 28-day notice period or pay in lieu, an improvement on the statutory minimum under Section 42, and the Respondent should have terminated under that clause.
Whether termination of a probationary contract amounts to unfair termination
No - Section 42 does not oblige an employer to give reasons for ending a probationary relationship, so the unfair termination claim fails
The Court, following Danish Jalang'o, held that Section 42 is a reasonable limitation on Article 41 rights. The Respondent was entitled to seek information from former employers and assess suitability without consulting the Claimant. The sole remedy available to the Claimant was notice pay under his probationary contract.
Legal principles established
#- An employment contract is created when the employee signs acceptance of the offer, not on the stated date of appointment
- An employer may not withdraw from a concluded employment contract without regard to its terms and governing law
- Section 42 of the Employment Act (probationary termination without reasons) is a reasonable limitation on constitutional rights under Article 41
Court orders
#- 1.The Respondent shall pay to the Claimant notice pay at Kshs. 81,144
- 2.No order on the costs
- 3.Interest granted at the rate of 14% per annum, from the date of Judgment till payment is made in full
- Jurisdiction invoked
- Article 41 of the Constitution and the Employment Act 2007 (first-instance employment dispute)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Ngure v Huawei Technologies (Kenya) Co Ltd (Cause 335 of 2018) [2023] KEELRC 3204 (KLR)[2023] KEELRC 3204 (KLR)5 Dec 2023
- Obage v Kenya Revenue Authority (Petition 84 of 2017) [2020] KEELRC 1859 (KLR)[2020] KEELRC 1859 (KLR)24 Jan 2020
Cite this brief
#Cite this brief
Caselaw, "Fedelix Mwendwa Muli v Bamburi Cement Limited [2018] KEELRC 2336 (KLR)", Case Analysis (2018). Cause No 136 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/2336/eng@2018-03-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.