Were v Kenafric Industries Ltd (Cause 1822 of 2016) [2021] KEELRC 918 (KLR)
The bottom line
#A Kenyan employer who stays silent after probation ends 'confirms' the employee, and can't then fire them without a fair hearing.
What this practically means
#Executive summary
#Key legal issues
#Status of the employee after expiry of probation without communication
The Claimant was deemed constructively confirmed on 1st May 2015 when the Respondent failed to communicate her probation status, gaining protections under sections 41, 43 and 45 of the Employment Act
The probation ran to 30th April 2015 after extension. The Respondent did not communicate confirmation or termination by that date. Following Benjamin Nyambati Ondiba v Egerton University, silence at the close of probation results in constructive confirmation. The Claimant therefore ceased to be a probationary employee and could not be terminated under the probation contract.
Lawfulness of the termination
Termination was substantively unproven and procedurally flawed; notice under section 35 was given but section 41 procedure was not followed
The ground of poor performance rested on a June 2015 evaluation whose grading system was never filed, so the ground could not be objectively verified under sections 43 and 45. Although notice under section 35 was given and conceded, there was no show cause, no hearing, and no right to be accompanied as required by section 41.
Effect of the discharge voucher
The settlement of Ksh 9,858 did not bar the claim because the parties mutually understood it to cover salary only
Applying Thomas De La Rue and Coastal Bottlers, the court evaluated the settlement's import and the parties' knowledge. Both sides understood the payment as covering the Claimant's salary, not compensation for unlawful termination, so the voucher was not a full and final release barring further claims.
Quantum of compensation
Eight months' salary awarded instead of twelve due to failure to mitigate
Under section 49 the court must consider relevant factors including mitigation. The Claimant adduced no evidence of efforts to mitigate. Balancing the unfair treatment against the duty to mitigate, the court discounted the award to eight months' gross salary of Ksh 24,200, totalling Ksh 193,600 plus leave dues.
Legal principles established
#- Where an employer remains silent at the close of the agreed probation period, the employee is deemed constructively confirmed
- A discharge voucher does not per se bar further claims; the court must assess its import and whether it was freely executed with full knowledge
- The mere existence of a pretrial settlement does not oust the court's jurisdiction to inquire into the lawfulness of a termination
Court orders
#- 1.The Respondent's termination of the contract of service between the parties to this action is declared unfair and unlawful
- 2.The Claimant is awarded Ksh. 213,389/= in damages
- 3.The Respondent to issue the Claimant with a Certificate of Service
- 4.The Claimant to be paid interest at court rates on the amount awarded in damages
- 5.The sums awarded to be subject to applicable statutory deductions if any
- 6.The Claimant awarded leave dues for the year 2013 at the rate of Ksh 19,789/=, her monthly salary then
- 7.The Respondent to pay costs of the Claim
- Jurisdiction invoked
- Original employment and labour relations jurisdiction of the Employment and Labour Relations Court under the Employment Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Were v Kenafric Industries Ltd (Cause 1822 of 2016) [2021] KEELRC 918 (KLR)", Case Analysis (2021). Cause No 1822 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/918/eng@2021-09-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.