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ELRCPartially AllowedPetition dated 4th May 2020· [2021] KEELRC 555 (KLR)

Kennedy Nyakundi v Powerhive East Africa Limited [2021] KEELRC 555 (KLR)

Employment and Labour Relations Court
5 November 2021
5,123 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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Kenya's Employment Court confirmed that probation cannot be extended twice, so the employee was deemed permanently employed and won Kshs.600,000 for unfair termination.

What this practically means

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Executive summary

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The Petitioner, employed as Sales and Marketing Manager from 30th April 2019 on a six-month probation extendable by a further six months, had his probation extended by consent for three months on 14th October 2019. After that extension lapsed without communication, the Respondent wrote on 2nd March 2020 purporting to extend probation by a further month with performance targets, which the Petitioner signed on 5th March 2020. By a letter dated 31st March 2020 the Respondent terminated the 'probation'. The Petitioner petitioned, seeking a declaration of breach of Articles 27, 28, 41, 48 and 50, certiorari to quash the probation extension, one month's salary in lieu of notice, and Kshs.16,200,000 being salary to retirement. The court held that Section 42(2) of the Employment Act permits only one further probation extension, so the Petitioner's probation lapsed on expiry of the three-month extension and he was confirmed by operation of law; he was consequently not on probation at termination. Following Evans Kiage Onchwari, Samwel G. Momanyi and Monica Munira Kibuchi, the court found the termination, effected without the procedural and substantive fairness safeguards of Sections 41 and 43, unfair under Section 45(2). The court agreed the matter was a pure employment claim misframed as a petition but, invoking Section 12(3) of the ELRC Act and Article 159, granted remedies as if on a memorandum of claim: Kshs.150,000 in lieu of notice and three months' salary (Kshs.450,000) as compensation, totaling Kshs.600,000, with costs and interest. The constitutional declaration, certiorari and salary-to-retirement prayers failed.

Key legal issues

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01

Whether the Petitioner was still on probation at termination

Holding

Probation lapsed on expiry of the three-month extension; the second (one-month) extension was not provided for by law; Petitioner was confirmed by operation of law

Reasoning

The contract provided six months' probation extendable by a further six months. The initial extension of three months exhausted the statutory allowance. Section 42(2) allows only one further period, not piecemeal extensions. The Petitioner's signature accepting the 2nd March 2020 letter could not override the statutory provision. Probation therefore lapsed at the expiry of the three-month extension.

p. 6
02

Whether termination was lawful and fair

Holding

Unfair under Section 45(2) of the Employment Act; Sections 41 and 43 requirements not observed

Reasoning

Relying on decisions holding that probationary employees' Article 41 rights may only be limited per Article 24, the court found that termination without the procedural and substantive fairness safeguards of Sections 41 and 43 was unfair. The single judge noted that limitation of labour rights by reason of length of service does not meet Article 24's threshold.

p. 6
03

Availability of judicial review remedies in private-law employment disputes

Holding

Certiorari not available for breach of a statutory provision in a contractual relationship; court offered remedies as if a memorandum of claim

Reasoning

The court agreed the suit was a pure employment matter that should have been filed as a claim rather than a petition. Citing Section 12(3) of the ELRC Act and Odunga J's holding that misframing does not oust jurisdiction, the court treated the lapse as procedural and granted the statutory employment remedies.

p. 7

Legal principles established

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  • Probation cannot be extended more than once; Section 42(2) permits only one further period of not more than six months
  • An employer-employee relationship crystallizes by operation of law where the probation period runs out and the employer fails to confirm the employee
  • The ELRC may grant remedies under Section 12(3) of the ELRC Act notwithstanding the framing of the matter as a petition

Court orders

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  1. 1.Payment in lieu of notice of Kshs.150,000
  2. 2.Compensation of three months' salary at Kshs.450,000
  3. 3.Judgment entered for the Petitioner in the total sum of Kshs.600,000
  4. 4.Respondent to pay Petitioner's costs of the suit
  5. 5.Interest at court rates from the date of judgment

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 24, 27, 28, 41, 47, 48, 50, 159(2)(d)
  • Employment Act, 2007Sections 40, 41, 42(1), 42(2), 43, 44, 45, 46, 49
  • Fair Administrative Action Act, 2015Section 4
  • Employment and Labour Relations Court ActSection 12(3)
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B

Cases cited (13)

  • Narry Philemons Onaya-Odeck v Technical University of Kenya (Formerly, the Kenya Polytechnic University College)
    [2017] eKLR
  • Elizabeth Mwikali Mwendwa v Kenya Investment Authority
    [2018] eKLR
  • Dinah Musindarwezo v African Women's Development And Communication Network (FEMNET)
    [2012] eKLR
  • Kelvin Gatembo Kariuki & 4 others v Office of the Auditor-General & 2 others
    [2021] eKLR
  • Republic v Kenya Ordinance Factories Corporation Ex Parte Anne Gichimo
    (2014) eKLR
  • Engineer Francis N. Gachuri v Energy Regulatory Commission
    [2013] eKLR (Industrial Cause No. 203 of 2011)
  • Evans Kiage Onchwari v Hotel Ambassadeur Nairobi
    [2016] eKLR
  • Danish Jalang’o & another v Amicabre Travel Service Ltd
  • Dixon Andama v Amani Tiwi Beach Resort
  • Samwel G. Momanyi v The Attorney General & Another
  • Monica Munira Kibuchi & 6 others v Mount Kenya University; Attorney General (Interested Party)
    [2021] eKLR
  • Martin Lemaiyan Mokoosio & Emmanuel Toyanka Mokoosio v Reshma Praful Chandra Vadera, Simon Joseph ole Karasha, Bindu Kumar Chhotalal Vadera & Ngong Matonyok Wholesalers Ltd
    [2021] eKLR
  • Menginya Salim Murgani v Kenya Revenue Authority
    [2008] eKLR
Jurisdiction invoked
Article 162(2) Constitution / Employment and Labour Relations Court Act, Section 12(3)

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, "Kennedy Nyakundi v Powerhive East Africa Limited [2021] KEELRC 555 (KLR)", Case Analysis (2021). Petition dated 4th May 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/555/eng@2021-11-05

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