Olga Anyango Okello v Registered Trustees of the Sisters of Mercy (Kenya) t/a the Mater Hospital [2021] KEELRC 712 (KLR)
The bottom line
#Kenya's Employment Court ruled that even probationary employees who never started work are entitled to fair reasons and compensation when a job offer is cancelled.
What this practically means
#Executive summary
#Key legal issues
#Constitutionality of Section 42(1) of the Employment Act in excluding probationary employees from Section 41 protections
The court endorsed the three-judge bench decision in Monica Munira Kibuchi that Section 42(1), to the extent it excludes probationary employees from Section 41, is inconsistent with Articles 24, 41 and 47 of the Constitution, and found the Claimant's termination inconsistent with those provisions.
The court adopted the cited authority holding that removing probationary employees from fair hearing protections violates constitutional rights to fair labour practices and fair administrative action. It applied this to find that the Claimant, though terminated during probation and before assuming duty, was entitled to substantive fairness and could not simply be sent home without valid reasons.
Whether the Respondent's reasons for cancelling the Claimant's engagement were valid and fair
The Respondent's reasons (Trustees' cancellation of new recruitments and unsuitability following background checks) did not satisfy the substantive fairness threshold, warranting compensation of two months' salary.
The Claimant's employment was not revoked for misconduct, poor performance, incapacity or lack of qualifications but for factors for which the Respondent alone was responsible. The court found she was unfairly terminated, entitled to notice pay of one month's salary notwithstanding the probation clause, and two months' salary as compensation under Section 49.
Legal principles established
#- Termination of a probationary contract must still satisfy substantive fairness; an employer must prove valid and fair reasons even where the s.41 procedural requirements are ousted by s.42 of the Employment Act
- An employer who cancels a new engagement arbitrarily is liable in compensation even where the employee had not assumed duty
Court orders
#- 1.Payment of one month's salary as notice – Kshs. 200,000/-
- 2.Payment of two months' salary as compensation for unlawful termination – Kshs. 400,000/-
- 3.Costs of the suit to the Claimant
- 4.Interest on the notice pay and compensation at court rates from the date of judgment until payment in full
- Jurisdiction invoked
- Original jurisdiction of the Employment and Labour Relations Court over employment and labour relations disputes (Employment Act 2007; Articles 41, 47 of the Constitution invoked)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Olga Anyango Okello v Registered Trustees of the Sisters of Mercy (Kenya) t/a the Mater Hospital [2021] KEELRC 712 (KLR)", Case Analysis (2021). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/712/eng@2021-09-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.