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ELRCPartially AllowedCause No 259 of 2017· [2021] KEELRC 404 (KLR)

Ann Njeri Njagi v Comitato Internazionale Per Lo Sviluppo Dei Popoli (Cisp East Africa) [2021] KEELRC 404 (KLR)

Employment and Labour Relations Court
18 November 2021
6,699 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~27 min to read original · ~4 min brief

The bottom line

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A Kenyan court awarded a dismissed employee two months' salary after finding her employer's 'probation' story and performance appraisal were too flawed to justify the termination.

What this practically means

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Executive summary

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The Claimant sued her former employer, CISP, alleging wrongful and unfair termination on 5th September 2016, claiming she was dismissed after the Respondent realised she was pregnant. She sought severance pay, notice pay, five months' salary arrears, loss of income for the unexpired contract, compensation for unfair termination, special damages, costs and interest. The Respondent defended the suit on the basis that the Claimant was on an extended probationary period, was appraised and found unsatisfactory, and was lawfully terminated with adequate notice. The court framed three issues: whether the Claimant was on probation at termination, whether the termination was wrongful and unfair, and entitlement to reliefs. The court found that the purported performance appraisal of 27th June 2016 was a one-sided briefing session conducted outside the Respondent's own designated appraisal form, and the extension of probation lacked a defined duration and proof of service on the Claimant, rendering it ineffectual. The Claimant was therefore not on probation at termination. The termination failed both substantive and procedural fairness: the notice was 25 days instead of the statutory 28, the letter gave three inconsistent reasons, no restructuring was pleaded or proved, and the only appraisal postdated termination. However, the pregnancy-motivation claim was not established. Compensation of two months' salary (Kshs.200,000) was awarded under Section 49 of the Employment Act, with costs and interest; all other heads of claim were declined for lack of evidence or want of legal basis.

Key legal issues

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01

Whether the Claimant was on a probationary contract at termination

Holding

The Claimant was not on probation; the purported appraisal of 27 June 2016 was ineffectual and the extension of probation had no legal effect.

Reasoning

The Respondent claimed the Claimant's probation was extended after a 27 June 2016 review, but the Claimant denied receiving the extension letter and no proof of service was adduced. The review notes were a one-sided briefing, signed by one person, silent on her responses, and the Respondent bypassed its own designated appraisal form. The appraisal of 31 October 2016 postdated termination. The purported extension, lacking a defined duration and employee agreement, was ineffectual, so probation could not have subsisted at termination.

p. 7
02

Whether the termination was wrongful, unfair and unlawful

Holding

The termination was unfair for want of both a valid and fair reason and fair procedure.

Reasoning

Not being on probation, the Claimant was entitled to 28 days' notice under Section 35(1)(c) but received only 25 days. The termination letter gave three reasons, of which non-performance was last, contradicting the plea that non-performance was the sole reason. No restructuring was pleaded or proved, and the only appraisal relied on was conducted after termination. No disciplinary hearing or notice of transgressions was given, contrary to Section 45.

p. 8
03

Whether the Claimant was terminated because of her pregnancy

Holding

The Claimant failed to establish that the termination was actuated by pregnancy.

Reasoning

The Claimant did not show when or how she disclosed the pregnancy to her supervisor, why she did not report it to Human Resource, or why the Respondent would wait from June to September 2016 to terminate if pregnancy was the motive. RW1 denied knowledge of the pregnancy until the hospital called after termination.

p. 8
04

Compensation for unfair termination

Holding

The Claimant was awarded the equivalent of two months' salary (Kshs.200,000) under Section 49(1)(c).

Reasoning

The Court exercised its discretion under Sections 49(1)(c) and 49(4), considering the short service of about five months, the absence of a valid reason for termination, and the defective 25-day notice, concluding that two months' salary was fair compensation.

p. 9

Legal principles established

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  • An employer relying on poor performance must place a valid performance evaluation system on record and demonstrate the measures taken; a bare assertion of poor performance suffices not.
  • Termination of employment must satisfy both substantive and procedural fairness.
  • Fair labour practices under Article 41 of the Constitution apply to all aspects of employment, including appraisal and probation decisions.
  • An employee is entitled to be heard and to have representations considered before termination, even on notice under the contract.

Court orders

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  1. 1.Judgment entered for the Claimant in the sum of Kshs.200,000 being two months' salary as compensation for unfair termination
  2. 2.Costs of the suit to the Claimant
  3. 3.Interest at court rates from the date of judgment till payment in full

Authorities

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Legislation

  • Employment ActSection 2 (definition of probationary contract)
  • Employment ActSection 42 (termination of probationary contracts)
  • Employment ActSection 35(1)(c) (termination notice)
  • Employment ActSections 40, 41, 43, 44, 45 and 47
  • Employment ActSection 40(1)(g) (severance on redundancy)
  • Employment ActSection 49(1)(c) and 49(4) (compensation)
  • Employment ActSections 5(8)(c) and 8 (as referred to in Jane Samba Mukela)
  • Constitution of Kenya, 2010Article 41 (fair labour practices)
  • Constitution of Kenya, 2010Article 159(2)(d)
  • Constitution of Kenya, 2010Article 48 (access to justice)
  • Civil Procedure ActSection 1B
  • Civil Procedure RulesOrder 21 Rule 1

Cases cited (13)

  • John Wanjala Wanyama v Wanandege Co-operative Savings Sacco and Credit Society
    [2016] eKLR
  • Peris Nyambura Kimani v Dalbit Petroleum Limited
    [2015] eKLR
  • John Muthomi Mathu v Mastermind Tobacco (K) Ltd
    [2018] eKLR
  • Danish Jalang'o & Another v Amicabre Travel Services Ltd
    [2014] eKLR
  • Jane Samba Mukela v Ol Tukai Lodge Ltd
    Industrial Cause No. 823 of 2010
  • Avril Elizabeth Home for the Mentally Handicapped v Commission for Conciliation, Mediation and Arbitration & others
    (2006) 27 ILJ 1644 (LC)
  • Walter Ogal Anuro v Teachers Service Commission
    [2013] eKLR
  • Kenfreight (E.A.) Limited v Benson K. Nguti
    [2016] eKLR
  • Le Mode Luggage cc t/a Pakwells Petje v Dunn and others
    Appeal Case No. SA 65/205
  • Hema Hospital v Wilson Makongo Marwa
    [2015] eKLR
  • D. K. Njagi Marete v Teachers Service Commission
    [2020] eKLR
  • Elizabeth Wakanyi Kibe v Telkom Kenya Limited
    [2014] eKLR
  • Engineer Francis N. Gachuri v Energy Regulatory Commission
    [2013] eKLR
Jurisdiction invoked
First-instance employment and labour relations jurisdiction (Industrial Cause); no specific jurisdictional provision stated in the judgment

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Ann Njeri Njagi v Comitato Internazionale Per Lo Sviluppo Dei Popoli (Cisp East Africa) [2021] KEELRC 404 (KLR)", Case Analysis (2021). Cause No 259 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/404/eng@2021-11-18

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