Kennedy Nyakundi v Powerhive East Africa Limited [2021] KEELRC 555 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the Petitioner was still on probation at termination
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
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.
Whether termination was lawful and fair
Unfair under Section 45(2) of the Employment Act; Sections 41 and 43 requirements not observed
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.
Availability of judicial review remedies in private-law employment disputes
Certiorari not available for breach of a statutory provision in a contractual relationship; court offered remedies as if a memorandum of claim
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.
Legal principles established
#- 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
#- 1.Payment in lieu of notice of Kshs.150,000
- 2.Compensation of three months' salary at Kshs.450,000
- 3.Judgment entered for the Petitioner in the total sum of Kshs.600,000
- 4.Respondent to pay Petitioner's costs of the suit
- 5.Interest at court rates from the date of judgment
- Jurisdiction invoked
- Article 162(2) Constitution / Employment and Labour Relations Court Act, Section 12(3)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.