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ELRCDismissedMemorandum of Claim dated 29th May 2014 (Employment and Labour Relations Court, Nairobi)· [2021] KEELRC 1464 (KLR)

Mathias Amata Mwalo v Kenya Wildlife Service [2021] KEELRC 1464 (KLR)

Employment and Labour Relations Court
21 April 2021
NMNzioki wa Makau
3,138 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court confirmed employers can terminate probationary employees without a hearing, so probationers enjoy fewer protections than confirmed staff.

What this practically means

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Executive summary

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Mathias Amata Mwalo sued the Kenya Wildlife Service for unlawful, unfair and wrongful termination of his employment as Lecturer II at its Naivasha Training Institute. He was employed on 20th December 2011 on a monthly gross salary of Kshs. 84,400 and reported on 10th January 2012. His employment was terminated after the Respondent received what it described as an unsatisfactory enquiry report from his previous employer, Wildlife Clubs of Kenya. The Claimant sought a declaration that the termination was unfair and wrongful, reinstatement or 12 months' salary in lieu, and costs. He argued that the Respondent breached Clause B5(ii) of its Human Capital Policy and Procedures Manual and Sections 41, 43 and 45 of the Employment Act by failing to disclose the negative report and to afford him an opportunity to respond, contrary also to Article 47 of the Constitution. The Respondent countered that the Claimant was still on probation, having served only 5 months and 16 days, that his employment had been secured by non-disclosure of warnings from his previous employer, and that Section 42(1) of the Employment Act, in mandatory terms, dispenses with the notification and hearing requirements of Section 41 for probationary contracts. It relied on authority holding that an employer terminating during probation need only comply with the contract and Section 42. The court accepted the Respondent's position, applying the Danish Jalang'o line of authority, held that the Claimant's rights were abridged in mandatory terms by Section 42, found the claim unmerited and not proved on a balance of probability, and dismissed it with no order as to costs. Judgment was delivered at Nairobi on 21st April 2021 by Nzioki wa Makau J.

Key legal issues

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01

Application of Section 42 of the Employment Act to termination during probation

Holding

The court accepted the Respondent's position that because the Claimant was on probation, Section 42 of the Employment Act in mandatory terms excludes the Section 41 notification and hearing requirements, and the claim was accordingly dismissed.

Reasoning

The Respondent's evidence was that the Claimant had worked only 5 months and 16 days and had not completed the six-month probation period. The Respondent relied on Section 42(1) of the Employment Act, contending it is couched in mandatory terms and provides that Section 41 shall not apply to termination of a probationary contract. The court, adopting the line of authority relied on by the Respondent, found the claim unproved and dismissed it.

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02

Whether the employer was obliged to disclose the negative reference and hear the probationary employee

Holding

The court accepted that on termination during probation the only obligation is that under the contract and Section 42, and there was no obligation to reveal the enquiry report or hear the Claimant.

Reasoning

The Respondent argued that the enquiry report was received in confidence as part of due diligence on an employee on probation, and that it paid the Claimant two months' notice. It relied on authority holding that an employee on probation cannot anticipate the same safeguards as a confirmed employee and need not be shown cause or heard. The court adopted this reasoning in dismissing the claim.

p. 3

Legal principles established

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  • A claim of unfair termination must be proved on a balance of probability

Court orders

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  1. 1.The Claimant's claim is dismissed
  2. 2.No order as to costs

Authorities

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Legislation

  • Employment ActSection 41
  • Employment ActSection 42(1)
  • Employment ActSection 43(1)
  • Employment ActSection 45(2)(a) and 45(2)(b)
  • Employment ActSection 49(1)(c)
  • Employment ActSection 50
  • Employment ActSections 3(6) and 26
  • Constitution of Kenya, 2010Article 47(1) & (2)
  • Constitution of Kenya, 2010Article 41

Cases cited (8)

  • Walter Ogal Anuro v Teachers Service Commission
    (2013) eKLR
  • Kenya University Staff Union & Another v Masinde Muliro University of Science and Technology
    [2018] eKLR
  • Wells Fargo Limited v Julius Ihomba Gatete
    [2018] eKLR
  • Shankar Saklani v DHL Global Forwarding (K) Limited
    [2012] eKLR
  • Kima International School of Theology v Ben Julius Achila
    [2014] eKLR
  • John Muthomi Mathiu v Mastermind Tobacco (K) Limited
    [2018] eKLR
  • Danish Jalang'o & Christopher Kisia Kivango v Amicabre Travel Services Ltd
    [2014] eKLR
  • Dede Esi Annie Amanor-Wilks v Action Aid International
    [2014] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over unfair and wrongful termination of employment claims (Employment Act; Employment and Labour Relations Court Act) as invoked in the Memorandum of Claim

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, "Mathias Amata Mwalo v Kenya Wildlife Service [2021] KEELRC 1464 (KLR)", Case Analysis (2021). Memorandum of Claim dated 29th May 2014 (Employment and Labour Relations Court, Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1464/eng@2021-04-21

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