Josphat Ombalo Muyoga v Easytrains Limited [2020] KEELRC 1330 (KLR)
The bottom line
#A Kenyan court ruled that endlessly extending an employee's probation without their agreement makes them a regular employee entitled to full unfair-termination protection.
What this practically means
#Executive summary
#Key legal issues
#Whether the Claimant was on probation at termination
He was not; the Respondent's serial extensions of probation without the employee's agreement contravened Section 42 of the Employment Act.
The contract provided for a 3-month probation extendable by the Respondent. Section 42 caps probation at 6 months with an extension of not more than 6 months, but only with the employee's agreement. The Claimant denied agreeing to the extensions and the Respondent, which called no evidence, produced nothing showing agreement. The repeated extensions therefore did not keep the Claimant on probation at the time of the 17th June 2017 termination.
Whether termination was fair and for valid reason
Unfair under Sections 41, 43 and 45 of the Employment Act 2007 - no reason given and no hearing.
The Claimant was abruptly told by the Manager to hand over assets and leave on 17th June 2017. No reason was advanced to justify termination and the Respondent offered no evidence. In the absence of valid reason and fair procedure, the termination was substantively and procedurally unfair under Sections 41, 43 and 45 of the Employment Act.
Quantum of compensation for unfair termination
2 months' salary (Kshs. 70,000) awarded in lieu of the 12 months' sought, given the short length of service.
The Claimant worked about 11½ months. Although he bore no responsibility for the abrupt termination, a judicious exercise of discretion would not award the equivalent of 12 months' salary to an employee of such short service. The court fixed compensation at 2 months' salary, balancing length of service against the unfairness of the summary ejection.
Legal principles established
#- Probation under Section 42 of the Employment Act shall not exceed 6 months and may be extended by not more than another 6 months only with the employee's agreement; serial extensions without the employee's agreement take the employment outside probation.
- Where the employer offers no evidence, the court may conclude termination was without valid reason and unfair under Sections 41, 43 and 45 of the Employment Act.
Court orders
#- 1.Salary for 17 days worked in June 2017 awarded at Kshs. 22,884
- 2.One month's salary in lieu of notice awarded at Kshs. 35,000
- 3.Equivalent of 2 months' salary in compensation for unfair termination awarded at Kshs. 70,000
- 4.Certificate of Service to issue
- 5.No order on costs and interest
- 6.Claims for house allowance arrears, rest days and public holidays declined
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act 2007 (specific provision not stated in judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Josphat Ombalo Muyoga v Easytrains Limited [2020] KEELRC 1330 (KLR)", Case Analysis (2020). Cause No 109 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1330/eng@2020-03-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.