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ELRCDismissedMemorandum of Claim dated 22nd July, 2020· [2021] KEELRC 1106 (KLR)

Kelvin Gitonga Kinyua v Kenya Methodist University [2021] KEELRC 1106 (KLR)

Employment and Labour Relations Court
26 July 2021
DMD.K. NJAGI MARETE
1,133 words in judgment
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The bottom line

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Kenya's Employment Court confirmed employers can terminate probationary employees without full section 41 procedures, so long as they follow section 42's lighter rules.

What this practically means

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Executive summary

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The Claimant, employed as a Human Resource Officer by the Respondent on 1st April, 2020, had his services terminated on 9th June, 2020, within the six-month probationary period provided in his letter of appointment. He claimed the termination was unprocedural, unilateral, malicious and in breach of natural justice, contending he resigned from previous employment and incurred relocation costs in reliance on the new job during the Covid-19 pandemic. He sought reinstatement or, alternatively, relocation costs of Kshs. 357,000/=, damages for unlawful termination, costs and interest. The Respondent defended the claim, stating it conducted due diligence with the Claimant's previous employer, the Technical University of Mombasa, received an adverse report, deemed him untrustworthy, and lawfully terminated under section 42 of the Employment Act, 2007, which excludes section 41 procedures for probationary contracts. The parties agreed to determination by written submissions. The court framed three issues: whether the termination was wrongful, unfair and unlawful; entitlement to relief; and costs. Relying on authority that lesser standards apply to probationary terminations and that section 41 does not incorporate into probation cases, the court found the termination lawful, as the reasons fit the Respondent's circumstances and were communicated to the Claimant. The Claimant, having lost on the unlawfulness question, was disentitled to all reliefs. The claim was dismissed with costs to the Respondent. Judgment delivered at Nyeri on 26th July, 2021 by D.K.Njagi Marete, Judge.

Key legal issues

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01

Whether termination of the Claimant during probation was wrongful, unfair and unlawful

Holding

The termination was lawful. The Claimant was on a six-month probationary contract under the letter of appointment, and section 42 of the Employment Act, 2007 excludes the section 41 procedural requirements from probationary terminations. The Respondent acted on an adverse report from his previous employer, found him unsuitable, communicated this, and terminated within the probation period.

Reasoning

The court applied section 42 of the Employment Act, 2007, which provides that section 41 does not apply to termination of a probation contract and that a probationary contract may be terminated on not less than seven days' notice or payment in lieu. Although the Claimant relied on authority that section 45 protections apply during probation, the court preferred the line of authority holding that lesser standards apply to probationary terminations. The adverse reference report from the Technical University of Mombasa furnished a valid reason for termination, which was communicated to the Claimant before termination ensued. The termination therefore fitted the statutory probation framework and was neither wrongful nor unfair.

p. 3
02

Whether the Claimant is entitled to the reliefs sought

Holding

Not entitled. Having failed to establish unlawful termination, the Claimant is disentitled to all reliefs, including relocation costs, damages, and interest.

Reasoning

The reliefs claimed (relocation compensation of Kshs. 357,000/=, damages for unlawful termination, costs and interest) were all premised on a finding of unlawful termination. The court having found the termination lawful, the foundation for the reliefs fell away. The claim was accordingly dismissed in its entirety with costs to the Respondent.

p. 3

Legal principles established

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  • Section 41 of the Employment Act does not apply to termination of probationary contracts; section 42 governs such terminations with lesser procedural standards.
  • An employee terminated during probation for unsuitability established on adverse findings is lawfully terminated where the reasons fit the circumstances found by the employer.

Court orders

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  1. 1.Dismissal of the claim
  2. 2.Costs of the claim awarded to the Respondent

Authorities

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Legislation

  • Employment ActSection 42
  • Employment ActSection 41
  • Employment ActSection 45(1) and (2)
  • Regulation of Wages Act

Cases cited (3)

  • Mercy Njoki Karingithi versus Emrald Hotels Resorts and Lodges Limited
    2001
  • Patrick Korir Rotich versus Unilever Tea Kenya Limited
  • Joan Muthomi Mathiu versus Mastermind Tobacco (K) Ltd.
    2018 Eklr
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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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, "Kelvin Gitonga Kinyua v Kenya Methodist University [2021] KEELRC 1106 (KLR)", Case Analysis (2021). Memorandum of Claim dated 22nd July, 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1106/eng@2021-07-26

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