Protus Wekesa Munialo v Nzoia Sugar Company Limited [2019] KEELRC 1725 (KLR)
The bottom line
#A Kenyan court ruled a manager's sacking was unfair because the employer never held a proper hearing or proved poor performance, awarding over Kshs.3.3 million.
What this practically means
#Executive summary
#Key legal issues
#Whether the claimant's probationary status subsisted at the time of termination
The promotion of the claimant three months into his probation effectively ended the initial probationary period, and no lawful extension followed; in any event, the claimant had been continuously employed for more than thirteen months, engaging Section 45(3)
The claimant was promoted to Human Resource Manager without applying, which the court held indicated the respondent was satisfied with his performance. The purported extension on 17th June 2016 was invalid as no probation subsisted. Alternatively, Section 42 does not apply to employees with over thirteen months' continuous service per Section 45(3), and the claimant had served over fifteen months.
Whether the termination was procedurally and substantively fair
The termination was both substantively and procedurally unfair under Section 45(2) as there was no hearing under Section 41 and no valid grounds
No evidence showed the claimant appeared before the Board; no invitation letter or minutes were produced. Poor performance requires a performance appraisal system and an opportunity to improve. The issues were first raised in the show cause letter of 27th January 2017 and no hearing followed before termination.
Whether the claimant is entitled to the remedies sought
Declaration granted; reinstatement declined; 6 months' salary compensation awarded; service pay declined; salary for days worked, notice pay, leave pay and leave travelling allowance awarded; certificate of service ordered
Reinstatement was impractical given the claimant's critical position and the circumstances of termination, and was not exceptional under Section 49(4)(d). Service pay was excluded by NSSF membership under Section 35(6). Six months' compensation was considered reasonable.
Legal principles established
#- A probationary period under the Employment Act cannot exceed 6 months, with a further extension of not more than 6 months with the employee's agreement
- An employee continuously employed for not less than thirteen months immediately before termination has the right to complain of unfair termination under Section 45(3)
- Before termination for misconduct, poor performance or physical incapacity, the employer must explain the reasons to the employee in the presence of a fellow employee or union official of the employee's choice and give them an opportunity to be heard
- An employer terminating for poor performance must demonstrate a performance enhancement programme with clear indicators over a defined period and provision of all necessary assistance before termination
Court orders
#- 1.Judgment for the claimant against the respondent as follows: Compensation Kshs.2,136,504.00
- 2.Salary for days worked Kshs.82,173.20
- 3.Pay in lieu of notice Kshs.356,084.00
- 4.Leave travelling allowance Kshs.256,084.00
- 5.Pay in lieu of 38 days annual leave not taken Kshs.520,430.50
- 6.Certificate of service
- 7.Costs of the claim to the claimant
- 8.Interest at court rates from date of judgment
- Jurisdiction invoked
- Original jurisdiction of the Employment and Labour Relations Court under the Employment Act, 2007
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Protus Wekesa Munialo v Nzoia Sugar Company Limited [2019] KEELRC 1725 (KLR)", Case Analysis (2019). Cause No 65 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1725/eng@2019-04-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.