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ELRCPartially AllowedCause No. 909 of 2017· [2022] KEELRC 657 (KLR)

Titus Githinji Nderitu v Consolidated Bank of Kenya Limited [2022] KEELRC 657 (KLR)

Employment and Labour Relations Court
15 February 2022
1,993 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The Claimant, employed by the Respondent as a Business Development Officer effective 4th January 2016, was kept on successive probationary extensions for over a year and terminated on 5th April 2017 effective 6th April 2017 for alleged poor performance. He sought a declaration that his termination was unlawful, twelve months' compensation of Kshs.1,620,000/=, damages for unfair labour practices, costs and interest. The Respondent maintained that the termination was procedural, based on unsatisfactory performance in a target-based position, and that all dues including one month's salary in lieu of notice were paid. The court framed three issues: whether the Claimant was still on probation at termination, whether the termination was lawful, and entitlement to reliefs. Relying on sections 2 and 42(2) of the Employment Act, the court held that probation may not exceed an aggregate of twelve months and extensions require the employee's consent; the Respondent's unilateral extensions were unfair labour practices and the Claimant was confirmed as a permanent employee by operation of law after twelve months. On fairness, applying sections 41 and 45 and the Walter Anuro fairness test, the court found the Claimant was given no hearing before termination, rendering the termination unfair. The claim succeeded: the court awarded four months' salary equivalent, Kshs.540,000/= with interest from the date of judgment, treating the award as also covering damages for unfair labour practices, and awarded costs to the Claimant. Judgment was delivered virtually under COVID-19 directions.

Key legal issues

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01

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

Holding

The Claimant was no longer on probation by 4th January 2017 and became a permanent employee by operation of law, the probation having exceeded the statutory maximum without his consent

Reasoning

The Employment Act defines a probationary contract as one of not more than twelve months, and section 42(2) caps probation at six months extendable only by a further six months with the employee's agreement. The Claimant was kept on probation from January 2016 to April 2017 with no evidence of consent to the extensions. Repeated unilateral extensions amounted to unfair labour practice, and by operation of law he was confirmed after twelve months.

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02

Whether the termination was substantively and procedurally fair

Holding

The termination was unfair: the Respondent neither proved a valid reason through due process nor accorded the Claimant a hearing before termination

Reasoning

Sections 45 and 41 of the Employment Act require the employer to prove a valid and fair reason and to explain the reasons for termination to the employee in the presence of another employee or union representative. The Claimant received a termination letter on 5th April 2017 effective the next day, with no notice to show cause or opportunity to respond to the poor-performance allegation, failing both the substantive and procedural fairness test.

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What remedies the Claimant is entitled to

Holding

Four months' salary equivalent (Kshs.540,000/=) with interest, plus costs, the award also covering damages for unfair labour practices

Reasoning

In exercising discretion on compensation the court took into account the Claimant's short service of one year and three months. The awarded compensation was treated as sufficient to also cover the pleaded damages for unfair labour practices, with interest at court rates from the date of judgment until final payment and costs following the event.

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Legal principles established

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  • A probationary period under the Employment Act may not exceed an aggregate of twelve months, and extension of probation beyond six months requires the employee's consent; without consent the employee is confirmed by operation of law
  • Termination of employment must satisfy both substantive justification and fair procedure, including giving the employee an opportunity to be heard in the presence of a representative of choice

Court orders

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  1. 1.Judgment entered in favour of the Claimant for unfair termination
  2. 2.Award of 4 months' equivalent salary totalling Kshs.540,000/= with interest at court rates from the date of judgment until final payment, the award being regarded sufficient to also cover damages for unfair labour practices
  3. 3.Claimant awarded costs of the suit

Authorities

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Legislation

  • Employment ActSection 2
  • Employment ActSection 37
  • Employment ActSection 41
  • Employment ActSection 42(2)
  • Employment ActSection 45
  • Civil Procedure RulesOrder 21 Rule 1
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48
  • Civil Procedure ActSection 1B

Cases cited (5)

  • Frank Zawadi Wanjala Mudibo and 5 Others v Zircon Group Limited
    (2016) eKLR
  • Peris Nyambura Kimani v Dalbit Group Limited
    Petition No. 63 of 2014
  • Ascrat Giami v Chael World Gabriel
    (2015) eKLR
  • Kenfreight EA Limited v Benson Nguti
    (2016) eKLR
  • Walter Anuro v Teachers Service Commission
    (2013) eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (court established under Article 162(2) of the Constitution; specific provision not stated in the judgment)

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, "Titus Githinji Nderitu v Consolidated Bank of Kenya Limited [2022] KEELRC 657 (KLR)", Case Analysis (2022). Cause No. 909 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/657/eng@2022-02-15

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