Stephen Were v Wamuti Distributors Limited [2020] KEELRC 1319 (KLR)
The bottom line
#A Kenyan court ruled an employer cannot quietly extend probation; once probation lapses, dismissal requires notice and a hearing.
What this practically means
#Executive summary
#Key legal issues
#Whether the probation period was validly extended
The extension was not proved; by operation of law under Section 42 of the Employment Act the Claimant completed his probation after 3 months
The court found the letter of 9th May 2017 was never demonstrated to have been received by the Claimant, who denied receipt and did not sign for it. The fact of extension had to be demonstrated by the employer and the notification had to be unequivocal. Having continued working past 3 months, the Claimant was deemed confirmed by operation of law.
Whether the summary dismissal was lawful and procedurally fair
The dismissal was illegal and unlawful as the Claimant was not notified or heard
Once the probation lapsed, termination had to follow Sections 35, 40, 41 or 44 of the Employment Act. The Claimant ought to have been notified of the intention to dismiss, heard, and dismissed only if his explanation was unsatisfactory. The Respondent admitted no hearing, no notice to show cause and no 7 days' notice were given.
Legal principles established
#- An employer alleging extension of a probationary period must demonstrate that the extension was notified to the employee, and such notification must be unequivocal
- Once an employee continues working after the lapse of the initial probationary period, termination must comply with Sections 35, 40, 41 or 44 of the Employment Act or be by mutual agreement
- An employer cannot retrospectively purport to extend probationary terms
Court orders
#- 1.One month's salary in lieu of notice – Kshs. 114,000/-
- 2.Compensation of 2 months salary – Kshs. 228,000/-
- 3.Costs of the suit
- 4.Interest at court rates on items 1 and 2 from the date of judgment till payment in full
- 5.Execution of the judgment automatically stayed for 14 days; any execution thereafter to be sanctioned by the Court
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over unfair termination claims (Employment Act, 2007)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Kibe v Kibo Africa Limited (Cause E107 of 2023) [2023] KEELRC 3322 (KLR)[2023] KEELRC 3322 (KLR)8 Dec 2023
Cite this brief
#Cite this brief
Caselaw, "Stephen Were v Wamuti Distributors Limited [2020] KEELRC 1319 (KLR)", Case Analysis (2020). Cause No 22 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1319/eng@2020-03-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.