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ELRCPartially AllowedCause 1405 of 2013· [2019] KEELRC 1235 (KLR)

Kingsford Mukiri Gitari & 5 others v Sintel Security Print Solutions Limited [2019] KEELRC 1235 (KLR)

Employment and Labour Relations Court
2 July 2019
HWHellen S. Wasilwa
1,277 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 ruled that once a six-month probation expires, employees are confirmed and cannot be fired without a fair hearing.

What this practically means

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Executive summary

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Six claimants employed by Sintel Security Print Solutions Limited between 2011 and 2012 sued for damages for unlawful termination. They alleged that in May 2013 their salaries were unilaterally reduced from Kshs. 35,000/= (or 30,000/=) to Kshs. 24,000/=, and that when they protested and sought reinstatement of their salaries, the Respondent terminated their services on 13th June 2013 on allegations of threatening senior managers. The Respondent admitted the employment relationship but contended the Claimants were probationary, had accepted a salary reduction, and were summarily dismissed under Section 44 of the Employment Act for insubordination and exposing the company to security risks; it denied liability for terminal dues, service pay and damages. The Respondent's own witness admitted no Notice to Show Cause was issued and no disciplinary hearing was conducted. The court held that the six-month probationary period had expired long before the June 2013 terminations, so the Claimants were confirmed employees who could not be dismissed without a hearing. The failure to conduct any disciplinary process contravened Section 41 of the Employment Act, rendering the terminations unfair under Section 45(2). The court awarded each Claimant Kshs. 286,000/= less statutory deductions, comprising eight months' salary as compensation, one month's notice pay, the May 2013 salary reduction and unpaid June 2013 salary, with costs and interest. Severance pay was refused as there was no redundancy. Claims for overtime and unpaid leave, though argued, were not awarded.

Key legal issues

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01

Whether the Claimants were probationary employees at termination

Holding

The probation period had ended; the Claimants were deemed confirmed employees.

Reasoning

The appointment letters provided a 6-month probation period. Termination occurred in June 2013, long after probation expired. Section 42(2) of the Employment Act caps probation at six months, extendable only by agreement. The Respondent could not insist the Claimants remained probationary, and silence meant non-confirmation.

p. 2
02

Whether the termination was fair and lawful

Holding

The termination was unfair and unjust under Section 45(2) of the Employment Act.

Reasoning

As confirmed employees, the Claimants could not be dismissed without a hearing. The Respondent admitted no Notice to Show Cause was issued and no disciplinary hearing was conducted. The allegation of rudeness and threatening managers was unsupported by evidence, breaching Section 41 of the Employment Act.

p. 3

Legal principles established

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  • A probationary period cannot extend beyond six months, and once expired the employee is deemed confirmed and cannot be terminated without a disciplinary hearing.
  • Termination of a confirmed employee without notice to show cause or a disciplinary hearing contravenes Section 41 of the Employment Act and is unfair under Section 45(2).

Court orders

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  1. 1.Payment of 8 months' salary as compensation for unlawful and unfair termination (Kshs. 240,000/=)
  2. 2.Payment of 1 month's salary in lieu of notice (Kshs. 30,000/=)
  3. 3.Payment of the reduction of salary from May 2013 (Kshs. 10,000/=)
  4. 4.Payment of unpaid June 2013 salary (Kshs. 6,000/=), all less statutory deductions, totalling Kshs. 286,000/=
  5. 5.Respondent to pay costs of the suit plus interest at court rates from the date of judgment

Authorities

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Legislation

  • Employment Act 2007Section 42(2)
  • Employment Act 2007Section 41
  • Employment Act 2007Section 45(2)
  • Employment Act 2007Section 44
  • Employment Act 2007Section 49
  • Evidence ActSection 107

Cases cited (1)

  • David Namu Kariuki vs Commission for the Implementation of the Constitution
    (2015) eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act 2007 over claims of unlawful termination

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, "Kingsford Mukiri Gitari & 5 others v Sintel Security Print Solutions Limited [2019] KEELRC 1235 (KLR)", Case Analysis (2019). Cause 1405 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1235/eng@2019-07-02

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