Naomi Njoroge & 2 others v Ole-Ken Hotel [2021] KEELRC 827 (KLR)
The bottom line
#A Kenyan court confirmed probationary employees can be sacked without a hearing, but only after 7 days' notice — the hotel had to pay for skipping that step.
What this practically means
#Executive summary
#Key legal issues
#Whether the claimants were on probationary contracts
Yes; the respondent admitted the claimants were employed on probation and all served less than 6 months
The respondent admitted employing the claimants on probationary terms. Under section 42(2) of the Employment Act, probation may run up to six months. Since each claimant served between one and four months, they were still on probationary appointment and subject to section 42(1), which excludes the procedural protections of section 41 for probationary contracts.
Whether notice was required before terminating probationary contracts
Yes; 7 days' notice was required, which was not given
Although probationary employees may be terminated without a hearing under section 41 being inapplicable, they remain entitled to 7 days' notice under section 42(4). The respondent asserted verbal notice was given but its witness had no documentation to prove payment of notice salary, so the court awarded payment in lieu of the notice period.
Entitlement to house allowance
Granted at 15% of basic salary for the period worked
The court held the salary paid was not inclusive of house allowance as the respondent contended, and applied the standard 15% formula to each claimant's salary for the months actually worked, awarding Kshs. 11,250, 9,000 and 6,750 respectively.
Whether failure to issue written contracts of employment was grievous
Not grievous for the 1st and 3rd claimants, who served under 3 months
Section 9(1) of the Employment Act requires a contract of service to be in writing only where it lasts three months or more. The 1st claimant served two months and the 3rd claimant one month, so the omission was not grievous, although the 2nd claimant served four months.
Legal principles established
#- Termination of a probationary contract is exempt from the procedural fairness requirements of section 41 of the Employment Act, and a probationary employee may be terminated upon 7 days' notice
- Probationary service may run up to 6 months, and employees who serve less than 6 months remain on probation
Court orders
#- 1.Payment of 7 days' salary in lieu of notice: 1st Claimant Kshs. 5,833; 2nd Claimant Kshs. 3,500; 3rd Claimant Kshs. 10,500
- 2.Payment of house allowance for the period worked: 1st Claimant Kshs. 11,250; 2nd Claimant Kshs. 9,000; 3rd Claimant Kshs. 6,750
- 3.Totals of Kshs. 17,083 (1st Claimant), Kshs. 12,500 (2nd Claimant) and Kshs. 17,250 (3rd Claimant), subject to statutory deductions
- 4.Respondent to pay costs of the suit plus interest at court rates from the date of judgment
- Jurisdiction invoked
- Original employment and labour relations jurisdiction under the Employment Act and Labour Institutions Act (specific provision not stated in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Naomi Njoroge & 2 others v Ole-Ken Hotel [2021] KEELRC 827 (KLR)", Case Analysis (2021). Cause No. 214 of 2017 (lead file, consolidated with two other causes filed 16 May 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/827/eng@2021-10-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.