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ELRCPartially AllowedCause No 270 of 2016· [2018] KEELRC 2360 (KLR)

Saidi Mbogo Mwalimu v Pasta Enterprises Limited [2018] KEELRC 2360 (KLR)

Employment and Labour Relations Court
8 March 2018
2,344 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court confirmed probationers can't claim unfair termination compensation, but can win damages when employers breach their contracts.

What this practically means

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Executive summary

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The Claimant, employed as a Driver on 30th September 2015 at a monthly salary of Kshs. 29,000, was sent to Kampala in December 2015 to retrieve the Respondent's truck after the assigned driver died. The journey was fraught: fuel ran out repeatedly, the truck broke down, and the Claimant paid Kshs. 2,000 for security guards. On return, the Respondent dismissed him, alleging he had siphoned 240 litres of fuel, and paid him terminal dues of only Kshs. 1,795 after deducting the fuel and guarding costs. The Respondent contended the Claimant was a probationary employee whom it declined to confirm. The Court held the Claimant was on a lawful 6-month probation (Section 42, Employment Act) and thus could not claim compensation for unfair termination under Sections 41, 43 and 45; the unfair termination claim was rejected. However, the Respondent was bound to act reasonably even toward a probationer. It failed to facilitate the journey adequately, paying Kshs. 2,000 instead of the Kshs. 16,000 standard mileage allowance, and wrongfully deducted the fuel and guarding costs. The Court declared the termination a breach of the probationary contract and awarded contractual damages of Kshs. 40,000, notice pay of 7 days (Kshs. 5,384), mileage allowance of Kshs. 7,500, refund of Kshs. 18,439 (fuel) and Kshs. 2,000 (guards), totalling Kshs. 73,323, plus a Certificate of Service, costs to the Claimant, and interest at 14% per annum from judgment until payment in full.

Key legal issues

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01

Status of probationary employee and protection under Section 42

Holding

The Claimant was on a 6-month probation and had worked only 3 months, so was on probation at termination; the unfair termination claim fails but breach of contract claim succeeds.

Reasoning

Section 42 of the Employment Act caps probation at 6 months, extendable to 12 by agreement. The contract provided 6 months' probation and the Claimant worked 3 months. Probationary employees cannot claim statutory compensation for unfair termination, but an employer must nonetheless act reasonably; the Respondent's conduct in failing to facilitate the journey and deducting dues constituted breach of the probationary contract warranting contractual damages.

p. 3
02

Lawfulness of deductions for fuel and guarding costs

Holding

Deductions of Kshs. 18,439 (fuel) and Kshs. 2,000 (guards) were wrongful and must be refunded.

Reasoning

There was no evidence the Claimant siphoned fuel, and the Respondent could not attribute the loss of 240 litres to him. The Claimant engaged guards at the Operations Manager's direction for the benefit of the Respondent's property, so the cost should not have been deducted from his dues.

p. 4
03

Entitlement to mileage allowance and adequate facilitation

Holding

Mileage allowance of Kshs. 7,500 awarded; Respondent breached the contract by sending the Claimant with only Kshs. 2,000 instead of the Kshs. 16,000 standard allowance.

Reasoning

Charo confirmed drivers on Kampala journeys were paid Kshs. 16,000 mileage. The Claimant's claim of Kshs. 7,500 was reasonable given the Kshs. 2,000 paid and transport already catered for. The failure to facilitate the journey adequately and the deductions constituted breach.

p. 4

Legal principles established

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  • Probationary employees cannot claim compensation for unfair termination under Sections 41, 43 and 45 of the Employment Act, but may claim contractual damages for breach
  • Probationary period may not exceed 6 months, extendable by agreement up to an aggregate of 12 months under Section 42 of the Employment Act
  • Even a probationary employee is entitled to reasonable conditions of work and the employer must act reasonably
  • A probationary employee who has completed at least 4 consecutive weeks is entitled to a Certificate of Service

Court orders

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  1. 1.Declaration that termination was in breach of the Claimant's probationary contract
  2. 2.Respondent to pay 7 days' salary as notice pay at Kshs. 5,384
  3. 3.General damages for breach of contract at Kshs. 40,000
  4. 4.Mileage allowance at Kshs. 7,500
  5. 5.Refund of fuel deduction at Kshs. 18,439
  6. 6.Refund of guarding cost at Kshs. 2,000 (total Kshs. 73,323)
  7. 7.Certificate of Service to issue
  8. 8.Costs to the Claimant
  9. 9.Interest at 14% per annum from date of judgment until payment in full

Authorities

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Legislation

  • Employment ActSection 42 (including subsections 2, 3 and 4)
  • Employment ActSections 41, 43 and 45

Cases cited (2)

  • Carole Nyambura Thiga v. Oxfam
    [2013] e-KLR
  • Danish Jalang'o & Another v. Amicabre Travel Services
    [2014] e-KLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act 2007 (first-instance employment dispute)

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, "Saidi Mbogo Mwalimu v Pasta Enterprises Limited [2018] KEELRC 2360 (KLR)", Case Analysis (2018). Cause No 270 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/2360/eng@2018-03-08

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