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ELRCPartially AllowedCause No 1035 of 2017· [2021] KEELRC 729 (KLR)

Daniel Mutuku Njuguna v Kenya Institute of Mass Communication [2021] KEELRC 729 (KLR)

Employment and Labour Relations Court
15 October 2021
OKOcharo Kebira
8,055 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~32 min to read original · ~4 min brief

The bottom line

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A Kenyan employer cannot keep an employee on probation past six months without an immediate extension, and must terminate only on grounds the employee was given a chance to answer.

What this practically means

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Executive summary

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The Claimant, a former career civil servant, was employed as Administration Manager by the Kenya Institute of Mass Communication with effect from 1 November 2015, subject to a six-month probation. His probation lapsed without evaluation or extension, he was positively appraised and recommended for confirmation in September 2016, yet the Respondent thereafter purported to extend his probation (October 2016) and place him on 'special probation' (January 2017) before terminating his employment in March/April 2017 on grounds of failure to improve performance and conduct. The Claimant sued for declarations of unfair termination, terminal dues, compensatory and exemplary damages totalling Kshs. 3,829,183. The court framed five issues and held that the Respondent's own Human Resource Policies and Procedure Manual governed; that under section 42(2) of the Employment Act any probation extension must commence immediately upon expiry of the initial period and cannot be staggered; that the belated extensions were nullities amounting to unfair labour practice; and that the Claimant stood confirmed upon successful appraisal. The termination was found both substantively unfair (no valid reason proved under sections 43 and 45; the negative evaluation of 20 March 2017 was void) and procedurally unfair (termination on grounds the Claimant was never invited to answer). Exemplary damages and allowances were refused for want of evidence. Judgment was entered for the Claimant with salary arrears, one month's pay in lieu of notice, 11 months' compensation under section 49(1)(c), leave pay, a certificate of service, interest and costs.

Key legal issues

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01

Whether the Claimant was confirmed into permanent and pensionable employment

Holding

The Claimant was deemed confirmed when the initial six-month probation lapsed without an immediate extension, and in any event upon his successful September 2016 appraisal and recommendation for confirmation

Reasoning

Section 42(2) permits only one continuous extension of probation. The purported extension by letter dated 12 October 2016, almost five months after the initial probation lapsed, lacked legal foundation and amounted to unfair labour practice. The further 'special probation' of January 2017 was null and void since the manual allowed only one maximum three-month extension.

p. 7
02

Whether the termination was substantively fair

Holding

The termination was substantively unfair; the Respondent failed to prove a valid reason under sections 43 and 45

Reasoning

The Respondent pleaded unsatisfactory performance, yet its own witness had appraised the Claimant positively and recommended confirmation, and the negative evaluation of 20 March 2017 was founded on a null and void evaluation. The court applied the reasonable employer test, finding no reasonable employer would terminate for an alleged failure to arrest a hand-cart owner, which was outside the Claimant's authority.

p. 8
03

Whether the termination was procedurally fair

Holding

The termination was procedurally unfair because the Claimant was terminated on grounds of poor performance which he was never invited to answer

Reasoning

The Claimant answered show-cause charges of insubordination and rudeness and appeared before the management board, which was procedurally correct. However, the termination letter cited failure to improve performance and conduct - grounds never put to him. Human resource policy provisions form part of the contract and were also flouted.

p. 9
04

Which human resource manual applied

Holding

The Respondent's own Human Resource Policies and Procedure Manual applied, not the Public Service manual

Reasoning

The Kenya Institute of Mass Communication Order, 2011 empowered the Council to prescribe terms and conditions of service and regulations. The Public Service manual only aids entities lacking their own specific manual. The Respondent had its own specific manual which governed.

p. 6

Legal principles established

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  • An extension of a probationary period must commence immediately upon expiry of the initial probation period and cannot be staggered
  • A successful probationer recommended for confirmation must be dealt with under disciplinary procedures for confirmed employees, not by extension of probation
  • Termination on grounds different from those the employee was invited to answer is procedurally unfair

Court orders

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  1. 1.A declaration that the termination of the Claimant's employment was substantively and procedurally unfair.
  2. 2.Respondent to pay the Claimant Kshs. 14,573, being salary for the 5 days worked in April 2017.
  3. 3.Respondent to pay the Claimant one month's salary in lieu of notice, Kshs. 142,770.
  4. 4.Respondent to pay the Claimant Kshs. 1,625,470 compensation pursuant to Section 49(1)(c) of the Employment Act, 2007.
  5. 5.Compensation for unpaid leave, Kshs. 199,360.
  6. 6.A certificate of service to issue pursuant to section 51 of the Employment Act, 2007, within thirty days from the date of judgment.
  7. 7.Interest on the sums awarded at court rates from the date of filing suit till full payment.
  8. 8.Costs of the suit to the Claimant.

Authorities

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Legislation

  • Employment Actsections 35(5)(c), 36, 41, 42(2)&(3), 43, 45(2)(c), 45(4)(b), 45(5), 49(1)(c), 51
  • State Corporation Actsection 3(1)
  • The Kenya Institute of Mass Communication Order, 2011 (Legal Notice 197 of 30th September 2011)sections 3(1), 5, 6, 7(1)(e)&(f)
  • Public Service Commission, Human Resource Policies and Procedures Manual for the Public ServiceClause B.16
  • Human Resource Policies and Procedure Manual for The Kenya Institute of Mass CommunicationClauses 2.9, 2.9.1, 2.13
  • Pensions ActNot specified
  • Constitution of Kenyaprovisions on the right to a fair hearing (not numbered)

Cases cited (10)

  • Narry Philemons Onaya-Odek =vs= Technical University of Kenya (Formerly known as the Kenya Polytechnic University College)
    (2017) eKLR
  • Justine Onwoyo Among'a =vs= Mount Kenya University
    [2016] eKLR
  • Peter Wangai vs Egerton University
    (2019) eKLR
  • Walter Ogal Anuro =vs= Teachers Service Commission
    [2013] eKLR
  • Dr. Ezekiel Okemwa =vs= Kenya Marine and Fisheries research Institute
  • Dinah Musindarwezo. =vs= African Women's Development and Communication Network (Femnet)
    [2012] eKLR
  • Katunge Kiilu v National Aids Control Council
    [2019] eKLR
  • Lydia Moraa Obara =vs= Tusker Mattresses Limited
    [2021] eKLR
  • L vs- British Columbia [interior Health Authority]
    2017 BSSC
  • British Leyland Uk Ltd vs- Swift
    [1981] 1 IRL
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (original employment claim; specific provision not stated)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (6)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Daniel Mutuku Njuguna v Kenya Institute of Mass Communication [2021] KEELRC 729 (KLR)", Case Analysis (2021). Cause No 1035 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/729/eng@2021-10-15

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