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ELRCPartially AllowedNot stated in judgment· [2020] KEELRC 207 (KLR)

Happiness Nyabonyi Maingo v Shreeji Chemicals Limited [2020] KEELRC 207 (KLR)

Employment and Labour Relations Court
23 November 2020
OMOnesmus N Makau
2,700 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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Kenyan employers cannot fire probationary employees without a valid, fair reason — probation does not give a free hand to terminate at will.

What this practically means

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Executive summary

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The Claimant, employed as an Accountant by the Respondent from 1.1.2016 on a one-year contract with a six-month probation period, had her probationary contract terminated on 3.3.2016 for allegedly ineffectual performance. She sued seeking a declaration that the termination was unlawful, unfair and void ab initio, plus compensation, salary in lieu of notice and salary for days worked totalling Kshs. 523,111, costs and interest. The Respondent defended the termination as lawful under section 42 of the Employment Act, relying on Danish Jalang'o v Amicabre Travel Services to argue that probationary terminations are exempt from the fairness requirements of the Act, and that 7 days' salary in lieu of notice was paid. The court framed two issues: whether the termination was unfair and unlawful, and whether the Claimant was entitled to the reliefs sought. It held that section 42 waives only the procedural disciplinary-hearing requirement, not the substantive obligation to have a valid and fair reason, and expressly declined to follow Danish Jalang'o. On the facts, the same HR Manager who signed the termination letter citing poor performance also issued a Certificate of Service describing the Claimant as hardworking, proficient and reliable; the unexplained contradiction led the court to find the cited reason untrue, rendering the termination unfair and unlawful under section 45. The court noted that section 45(3) had been declared unconstitutional in Samuel G. Momanyi, allowing employees with under one year of service to sue. Judgment was entered for the Claimant with a declaration of unfair termination and an award of one month's salary (Kshs. 40,000) as compensation, plus costs and interest, subject to statutory deductions; the balance of the compensation sought was refused as terminal dues of Kshs. 18,000 had already been paid.

Key legal issues

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01

Whether termination of a probationary contract is subject to the substantive fairness requirements of the Employment Act

Holding

Yes - section 42 waives only the section 41 procedural hearing requirement; the employer must still have a valid and fair reason under sections 43 and 45

Reasoning

The court held that section 42 relieves an employer only of the duty to conduct a disciplinary hearing before terminating a probationary contract. It does not license arbitrary termination. The employee retains the right under sections 43, 45 and 47(5) to challenge the substantive justification, and section 46 safeguards against discriminatory reasons apply regardless of probationary status. The court expressly declined to follow Danish Jalang'o, which had held the opposite.

p. 3
02

Whether the Respondent proved a valid and fair reason for terminating the Claimant's probationary contract

Holding

No - the termination letter citing poor performance was contradicted by the same officer's Certificate of Service describing the Claimant as hardworking, proficient and reliable

Reasoning

RW1 issued a termination letter citing ineffectual performance on 3.3.2016 and, on the same day, a Certificate of Service praising the Claimant's performance and recommending her to other employers. RW1 offered no explanation for the contradiction. The court found the cited reason untrue and unjustified, rendering the termination unfair and unlawful under section 45, cognisant that section 45(3) had been declared unconstitutional in Samuel G. Momanyi.

p. 4
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What remedies flow from the finding of unfair termination

Holding

Declaration of unfair termination plus one month's salary as compensation under section 49(1), given short service and the reasonable expectation of only four further months

Reasoning

Having found the termination unjustified, the court declared it unfair and unlawful as prayed and held the Claimant entitled to notice pay and compensation under section 49(1). Because Kshs. 18,000 had already been paid inclusive of 7 days' notice salary and days worked, only one month's salary (Kshs. 40,000) was awarded as compensation, considering the short service period and remaining probationary expectation.

p. 4

Legal principles established

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  • Section 42 of the Employment Act waives only the procedural requirement of a disciplinary hearing for probationary contracts, not the employer's obligation to have a valid and fair reason for termination
  • The obligations to justify termination under sections 43, 45 and 47(5) of the Employment Act apply equally to probationary contracts
  • Probationary employees remain entitled to protection from arbitrary and whimsical termination
  • Contradiction between a termination letter and a complimentary certificate of service can invalidate the cited reason for termination

Court orders

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  1. 1.Declaration that the termination of the Claimant's probationary contract was unfair and unlawful
  2. 2.Award of one month's salary as compensation (Kshs. 40,000) for the unfair termination under section 49(1) of the Employment Act
  3. 3.Costs of the suit to the Claimant
  4. 4.Interest on the award from the date of judgment
  5. 5.The award to be subject to statutory deductions

Authorities

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Legislation

  • Employment Actsection 41
  • Employment Actsection 42
  • Employment Actsection 43
  • Employment Actsection 44(4)
  • Employment Actsection 45
  • Employment Actsection 45(3)
  • Employment Actsection 46
  • Employment Actsection 47(5)
  • Employment Actsection 49(1)
  • Employment Actsection 51
  • Constitution of KenyaArticle 41
  • ELRC Procedure RulesRule 28(3)

Cases cited (2)

  • Danish Jalang'o & Another v Amicabre Travel Services Ltd
    [2014] eKLR
  • Samuel G. Momany v The Attorney General and Another
    [2012] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act (ELRC Procedure Rules referenced); first-instance employment claim

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Happiness Nyabonyi Maingo v Shreeji Chemicals Limited [2020] KEELRC 207 (KLR)", Case Analysis (2020). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/207/eng@2020-11-23

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