John Gakuru Mbugua v Sameer Agriculture & Livestock (K) Ltd [2020] KEELRC 1408 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Probationary status of the Claimant
The probation clause in the 2015 contract was invalid and superfluous because the Claimant was a continuing employee from 1 October 2012 performing the same duties
The Certificate of Service issued by the Respondent showed commencement of employment on 1 October 2012. The Claimant testified that upon expiry of the first contract he was issued a new contract from 1 April 2015 performing the same duties. Following Carole Nyambura Thiga v Oxfam, the Court held a continuing employee cannot be placed on probation, rendering the probation clause invalid.
Fairness of the termination
The termination was unfair and unlawful because the Claimant was entitled to notice under section 35(1)(c) and a hearing under section 41 of the Employment Act, and even as a probationer he was entitled to 7 days' notice or pay in lieu under section 42(4) which was never given
Having found the Claimant was not on probation, sections 35(1)(c) and 41 applied. In the alternative, section 42(4) and clause 6 of the contract required 7 days' notice or pay in lieu. Only a suspension letter was issued; the Court held suspension pending investigations cannot substitute for notice.
Remedies: compensation and notice pay
Three months' gross salary (Kshs 76,698/-) awarded as compensation for unfair termination considering about 3 years of continuous service, plus one month's basic salary (Kshs 19,000/-) in lieu of notice
The Claimant served the Respondent continuously for about 3 years; in consideration of length of service, the equivalent of 3 months' salary was fair compensation. The basic salary for notice pay was Kshs 19,000/-.
Underpayment of wages
The claim for underpayment of Kshs 107,712/- failed for want of particulars and proof
The particulars of underpayment were raised only in submissions, not in pleadings or testimony. The Claimant produced only one pay slip for April/May 2015 and did not prove his wages from 2012 to 2015. His designation as Deliveryman could not be matched to an occupation in the Regulation of Wages (General)(Amendment) Orders.
Legal principles established
#- A continuing employee whose employment carries over into a new contract performing the same duties cannot be placed on probation; doing so constitutes an unfair labour practice
- Even for probationary contracts, termination under section 42(4) of the Employment Act requires 7 days' notice or 7 days' pay in lieu, failing which the termination is unfair and unlawful
- A suspension letter pending investigations cannot serve as the notice required before termination
- Underpayment of wages arises where the employer pays below prescribed minimum wages or contractually agreed rates, and must be pleaded with particulars and proved
Court orders
#- 1.Declared that the Claimant was not on probation at the time of termination of employment
- 2.Declared that the termination of the Claimant's employment was unfair
- 3.Awarded the Claimant compensation of Kshs 76,698/- (equivalent of 3 months' salary)
- 4.Awarded the Claimant pay in lieu of notice of Kshs 19,000/-
- 5.Total award of Kshs 95,698/-
- 6.Denied costs to the Claimant for filing submissions outside agreed timelines; each party to bear own costs by implication
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over unfair termination and breach of contract claims (Employment Act, 2007; Labour Relations Act)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "John Gakuru Mbugua v Sameer Agriculture & Livestock (K) Ltd [2020] KEELRC 1408 (KLR)", Case Analysis (2020). Not stated in the judgment (instituted 9 December 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1408/eng@2020-03-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.