Ann Njeri Njagi v Comitato Internazionale Per Lo Sviluppo Dei Popoli (Cisp East Africa) [2021] KEELRC 404 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the Claimant was on a probationary contract at termination
The Claimant was not on probation; the purported appraisal of 27 June 2016 was ineffectual and the extension of probation had no legal effect.
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.
Whether the termination was wrongful, unfair and unlawful
The termination was unfair for want of both a valid and fair reason and fair procedure.
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.
Whether the Claimant was terminated because of her pregnancy
The Claimant failed to establish that the termination was actuated by pregnancy.
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.
Compensation for unfair termination
The Claimant was awarded the equivalent of two months' salary (Kshs.200,000) under Section 49(1)(c).
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.
Legal principles established
#- 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
#- 1.Judgment entered for the Claimant in the sum of Kshs.200,000 being two months' salary as compensation for unfair termination
- 2.Costs of the suit to the Claimant
- 3.Interest at court rates from the date of judgment till payment in full
- Jurisdiction invoked
- First-instance employment and labour relations jurisdiction (Industrial Cause); no specific jurisdictional provision stated in the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.