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ELRCPartially AllowedMemorandum of Claim dated 4th October 2017 (ELRC)· [2021] KEELRC 1099 (KLR)

Gladys Chelimo Bii v Kenya Power and Lighting Company Limited [2021] KEELRC 1099 (KLR)

Employment and Labour Relations Court
13 August 2021
MOMaureen Onyango
8,437 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~34 min to read original · ~4 min brief

The bottom line

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Kenya Power lost an unfair termination case because an expired probation cannot be extended after the fact, and unproven poor performance claims fail.

What this practically means

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Executive summary

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The Claimant was employed by the Respondent as Deputy Director, Telecom Services on 10th February 2016 on six months' probation. She sought declarations that her termination was wrongful and unfair, reinstatement with confirmation, a car loan, or in the alternative a certificate of service and compensation including twelve months' salary, various allowances and reimbursement of car loan and insurance payments. The Respondent maintained she was still on probation, that her performance was poor, and that the termination was lawful. The Court framed three issues: her probationary status, the lawfulness of the termination, and remedies. It held that under Clause 3 of her contract and Section 42(2) of the Employment Act, any extension of probation had to be in writing and within limits; no written extension issued during the probation, and the Respondent's first extension attempt on 4th November 2016 came too late. The Claimant was therefore deemed confirmed by effluxion of time. On substance, the Respondent produced no performance appraisal or scores and failed to discharge the burden of proving poor performance, rendering the termination unfair. Reinstatement was nonetheless refused: the position had been abolished in a 2020 reorganisation, relations with her supervisor were strained, and her service was only 11 months. The Court declined to rule on the constitutionality of Section 12(3)(vii) of the Employment and Labour Relations Court Act since it was not specifically prayed for. The Court declared the termination wrongful, unfair and unlawful and awarded notice pay of Kshs.1,732,101, leave pay of Kshs.274,708, leave allowance of Kshs.124,867 and two months' compensation of Kshs.1,154,734, totalling Kshs.3,286,410, plus a certificate of service, costs and interest. Claims for airtime, electricity, mileage, January salary and car loan reimbursements were dismissed.

Key legal issues

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01

Whether the Claimant was still on probation at the time of termination

Holding

She was not; the probation lapsed on 10th August 2016 without written extension and she was deemed confirmed by effluxion of time

Reasoning

Clause 3 of the contract allowed extension of probation only in writing and by not more than three months. No written extension was issued during the six-month probation. The Respondent's first extension attempt on 4th November 2016 came roughly nine months after commencement, well outside the permissible period. The witness for the Respondent agreed there was no letter extending probation. Consequently the Claimant was confirmed by operation of law.

p. 12
02

Whether the termination was lawful and substantively justified

Holding

The termination was founded on invalid reasons and was unfair; the Respondent failed to discharge the burden of proving poor performance

Reasoning

Where poor performance is alleged, the employer bears the burden of proving it, and must show performance standards, appraisal records and measures taken to address poor performance. The Respondent produced no performance appraisal or scores, no proof of targets met or missed, and relied only on allegations of poor attitude and poor relations with juniors. The grounds were therefore invalid and the termination unfair both substantively and procedurally.

p. 13
03

Whether reinstatement should issue

Holding

Reinstatement refused although the termination was wrongful

Reasoning

Reinstatement is an order of specific performance granted only in exceptional circumstances under Section 49 of the Employment Act. Although the Claimant was not at fault, the position she held no longer existed after the Respondent's 2020 reorganisation, relations with her supervisor were strained, and she had served only 11 months, making reinstatement impracticable.

p. 14
04

What remedies flow from the unfair termination

Holding

Certificate of service, three months' notice pay, 22 leave days, leave allowance and two months' salary as compensation; monetary claims for airtime, electricity, mileage, January salary and car-loan reimbursements refused

Reasoning

Having found the termination unfair, the Court awarded two months' salary as compensation considering the short service of 11 months. Notice pay succeeded because the Claimant was no longer on probation. Leave claims succeeded because the Respondent failed to demonstrate the amounts owed against deductions. Claims proved to have been paid, or lacking proof of entitlement, were dismissed.

p. 14

Legal principles established

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  • Once a probationary period lapses without any word from the employer, the employee is deemed confirmed by effluxion of time; an attempted extension after the lapse is ineffective
  • The onus of proving poor performance lies on the employer, who must demonstrate performance standards, appraisal and efforts to support the employee
  • Reinstatement is a remedy of specific performance reserved for exceptional circumstances

Court orders

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  1. 1.A declaration that the termination of the Claimant's employment was wrongful, unfair and unlawful
  2. 2.Three months' salary in lieu of notice of Kshs.1,732,101/=
  3. 3.22 accumulated leave days awarded in the sum of Kshs.274,708/=
  4. 4.Leave allowance awarded in the sum of Kshs.124,867/=
  5. 5.Two months' salary as compensation in the sum of Kshs.1,154,734/= (total award Kshs.3,286,410/=)
  6. 6.The Respondent to issue the Claimant with a Certificate of Service forthwith
  7. 7.Costs to the Claimant together with interest at Court rates from date of judgment till payment in full
Jurisdiction invoked
Article 162(2) of the Constitution; Employment and Labour Relations Court Act, Section 12

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Gladys Chelimo Bii v Kenya Power and Lighting Company Limited [2021] KEELRC 1099 (KLR)", Case Analysis (2021). Memorandum of Claim dated 4th October 2017 (ELRC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1099/eng@2021-08-13

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