John Kahaguri Maina v Premier Tervan Hotel Limited & 2 others [2020] KEELRC 537 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the claimant was on probationary employment
The claimant was not on probation as no written probationary contract was produced; the probation plea was raised only in submissions and was never pleaded or part of the evidence.
Section 2 of the Employment Act requires a probationary contract to be in writing and to expressly state it is for a probationary period. The respondents produced no such written contract, so probation could not be presumed. Further, the plea of probation was raised for the first time in submissions and was absent from the Memorandum of Response and RW1's testimony, and could therefore not sustain the defence.
Whether the termination was unfair
The termination was unfair: it was verbal, without reason and without an opportunity to be heard, contrary to Section 41 of the Employment Act.
The claimant was called by the 2nd respondent while on his way to work and told not to report; RW1 confirmed the phone-call termination. No valid reasons were given or proved, and no hearing was accorded. Section 41 procedure was not complied with, and the employee having discharged his burden under Section 47(5), the termination was unfair.
Whether the agreed salary was Kshs.80,000 and the quantum of arrears
The court accepted the claimant's evidence of a Kshs.80,000 monthly salary, holding RW1's contrary evidence to be uncorroborated hearsay at variance with the pleadings, and awarded salary arrears.
Section 10(7) placed the burden on the employer, who failed to produce a written contract. RW1's evidence that the salary was agreed at Kshs.70,000 by his wife was hearsay since the 3rd respondent, who allegedly agreed and paid the salary, neither testified nor filed a witness statement. Her evidence was also at variance with the respondents' pleadings, so the court credited the claimant's account including the unreimbursed Kshs.3,000 paid to police.
Legal principles established
#- A probationary contract of employment must be in writing and expressly state that it is for a probationary period; probation cannot be presumed
- Where an employer fails to produce a written contract, the burden of proving or disproving an alleged term of employment rests on the employer
- Documents already filed and part of the court record need not be formally produced as exhibits; the court may determine a suit on pleadings, documents and submissions
Court orders
#- 1.Notice pay of Kshs.80,000
- 2.Compensation for unfair termination of Kshs.160,000 (two months' salary)
- 3.Salary arrears of Kshs.165,000
- 4.Refund of Kshs.3,000
- 5.Total judgment of Kshs.408,000 against the Respondents
- 6.Costs of the suit assessed at Kshs.50,000 all inclusive, with interest from the date of judgment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act and Labour Relations Act (not expressly cited in judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "John Kahaguri Maina v Premier Tervan Hotel Limited & 2 others [2020] KEELRC 537 (KLR)", Case Analysis (2020). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/537/eng@2020-08-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.