Silas Otieno Okumu v Kenya Medical Research Institute [2022] KEELRC 465 (KLR)
The bottom line
#A Kenyan court confirmed that ending probation is lawful if the employer evaluates performance properly and acts within a reasonable time.
What this practically means
#Executive summary
#Key legal issues
#Whether the claimant's appointment was confirmed by effluxion of time
No - the appointment letter made confirmation conditional on a performance evaluation after the 3-month probation, and the appraisal conducted about one and a half months after probation ended was within a reasonable time
The appointment letter required completion of the 3-month probation and a subsequent performance evaluation before confirmation. The appraisal took place on 21st March 2014, past the 11th February 2014 probation end. The court held that confirmation does not kick in automatically at the end of probation where an evaluation is pending; the reasonableness of the time taken to evaluate and communicate is the proper test, which was met here.
Whether section 45(3) of the Employment Act barred the claimant's unfair termination claim given less than 13 months' service
No - section 45(3) was declared unconstitutional in Samuel Momanyi vs SDV Transami and ceased to have legal effect
The respondent argued that under section 45(3) only employees with at least 13 months' continuous service may complain of unfair termination. The court held the respondent's proposition not viable because Lenaola J had declared section 45(3) unconstitutional for inconsistency with Articles 28, 41(1), 47, 48 and 50(1) of the Constitution, so it had no legal effect from 18th May 2012. The claimant could therefore bring the unfair termination claim despite short service.
Whether the respondent had substantive justification for the termination
Yes - poor performance established through the probation appraisal, prior supervisory emails and the supervisor's recommendation constituted valid and fair reasons
Under sections 43(1) and 45(2) the burden lies on the employer to prove reasons for termination. The respondent produced an End of Probation Appraisal in which the supervisor rated the claimant 2 out of 5 in key areas, prior emails showed dissatisfaction with his performance, and the immediate supervisor recommended termination. The court found the claimant's performance unsatisfactory and the probationary termination justified.
Whether the claimant was accorded procedural fairness
Yes - the three-stage appraisal process, including the claimant's participation and his request for review considered by two reviewers, satisfied section 41 requirements
Although section 42(1) excluding probationary employees from section 41 was declared unconstitutional in Monica Munira Kibuchi, requiring a fair hearing even for probationers, the court found procedural fairness satisfied. The appraisal involved self-appraisal, supervisor appraisal and review by two independent persons who upheld the recommendation after the claimant sought review. Following KRA vs Menginya Salim Murgani, a fair hearing need not be oral.
Entitlement to reliefs
All reliefs declined - compensation and service pay fail because termination was fair; leave and gratuity unproved; per diem claim time barred under section 90 of the Employment Act
Having found the termination lawful, compensatory damages and service pay were unavailable. Leave and gratuity were not proved, the claimant having been paid Kshs 47,500 for commuted leave. The per diem claim, being a continuing injury, was caught by section 90's 12-month limitation from cessation on 30th April 2014, and the suit filed 3rd November 2016 was outside that period, ousting jurisdiction.
Legal principles established
#- Serving beyond a probationary period does not automatically confirm employment where confirmation was subject to performance evaluation; the test is whether the employer took a reasonable time to evaluate and communicate
- An employee is entitled to a fair hearing despite being on probation, section 42(1) of the Employment Act having been declared unconstitutional
- A fair hearing need not be oral and may be achieved through written correspondence, including a performance appraisal process
Court orders
#- 1.The claimant's termination was found to be neither unfair nor unlawful and the claim is dismissed in its entirety
- 2.Each party shall bear its own costs
- Jurisdiction invoked
- Article 162(2) of the Constitution establishing the Employment and Labour Relations Court (employment and labour relations jurisdiction)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (3)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Cool Collection Limited v Murimi (Appeal E099 of 2024) [2025] KEELRC 1393 (KLR)[2025] KEELRC 1393 (KLR)5 May 2025
- Mutemi v KK Security; Attorney General (Interested Party) (Petition E088 of 2022) [2023] KEELRC 949 (KLR)[2023] KEELRC 949 (KLR)20 Apr 2023followed
- Olwande v Kenya Medical Research Institute & 2 others (Cause E056 of 2021) [2023] KEELRC 745 (KLR)[2023] KEELRC 745 (KLR)28 Mar 2023applied
Cite this brief
#Cite this brief
Caselaw, "Silas Otieno Okumu v Kenya Medical Research Institute [2022] KEELRC 465 (KLR)", Case Analysis (2022). Cause No 2248 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/465/eng@2022-03-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.