Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCPartially Allowed· [2022] KEELRC 837 (KLR)

Anytime Limited v Fredrick Mutobera Omuraya [2022] KEELRC 837 (KLR)

Employment and Labour Relations Court
10 February 2022
CBChristine N. Baari
2,748 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

#

A Kenyan court ruled a short contract labelled 'probationary' was actually fixed term, and cut excessive termination awards down to three months' salary.

What this practically means

#

Executive summary

#
The Respondent, employed by the Appellant under a three-month contract headed 'Probationary Service Contract', was terminated in June 2020 ostensibly due to the Covid-19 pandemic. The Chief Magistrate's Employment and Labour Relations Court at Kisumu, on 26 February 2021, declared the termination unprocedural and granted all prayers in the statement of claim, including one month's salary in lieu of notice, two months' salary for the unexpired contract, 12 months' salary as damages for unfair termination, damages for loss of employment, exemplary damages, costs and interest. The employer appealed, contending the contract was probationary, that Section 42(4) notice was given, and that the awards were excessive and unjustified. The ELRC at Kisumu, on a first appeal, re-evaluated the evidence. It held that probation is a term within a contract and not a contract type; despite its heading, the agreement was a fixed term contract. The termination, attributed to Covid-19, was in substance a redundancy effected without following Section 40 procedure and without reasons, hence unlawful and unfair. However, the reliefs were excessive: notice pay was set aside (fixed term contracts are self-executing), the 12 months' compensation was reduced to three months' salary (Kshs. 45,000/-), salary for the unexpired term was set aside as unjust enrichment, loss of employment damages were struck out for lack of justification, and exemplary damages were set aside as the Rookes v Barnard grounds were not met. Trial court costs and interest were upheld based on the appeal awards; each party was ordered to bear its own costs of the appeal. The appeal substantially succeeded.

Key legal issues

#
01

Nature of the contract – probationary or fixed term

Holding

The contract was a fixed term contract, not a probationary one, despite being headed 'Probationary Service Contract'.

Reasoning

The Employment Act defines a probation contract as one of not more than twelve months expressly stating it is for a probationary period. Probation is a term within a contract, not a contract type itself. The entire three-month contract period could not be probationary; the contract should have specified the probation period within it as a prelude to intended renewal.

p. 3
02

Whether the termination was lawful and fair

Holding

The termination was neither procedural nor substantively justified and was unlawful and unfair.

Reasoning

The termination was attributed to the Covid-19 pandemic, which was in substance a redundancy. Section 40 of the Employment Act lays out redundancy procedure; no evidence showed redundancy procedures were contemplated, no reasons were given to the Respondent, and there was no notice, show cause or disciplinary process.

p. 3
03

Reasonableness of the reliefs granted by the trial court

Holding

Most awards were excessive or unjustified and were set aside; compensation reduced to three months' salary.

Reasoning

The 12 months' compensation was disproportionate given a 3-month fixed term contract with no legitimate expectation of longer service. Loss of employment damages had no justification and duplicated compensation. Notice pay was inapplicable to a self-executing fixed term contract, and unexpired term pay would unjustly enrich the Respondent.

p. 4
04

Role of a first appellate court

Holding

The court is to re-assess and re-evaluate the entire evidence and arrive at its own conclusions, considering the lower court's exercise of discretion.

Reasoning

The appeal is a first appeal, and the court's duty is to re-evaluate the evidence tendered before the trial court, guided by the principles in Musera vs. Mwechelesi & Another, while giving due regard to the trial court's findings of fact and law.

p. 2

Legal principles established

#
  • Probation is not a form of contract in itself but one of the terms and conditions of a contract; a fixed term contract labelled 'probationary' whose entire period is described as probation is not a probationary contract.
  • Courts must interrogate each prayer in a statement of claim and give reasons for the awards they make; a finding of fault against an employer does not automatically entitle a claimant to all reliefs sought.
  • Remedies for unfair termination are not meant to facilitate unjust enrichment of aggrieved employees but to redress economic injuries proportionately.

Court orders

#
  1. 1.The award of one month's salary in lieu of notice is set aside
  2. 2.The award of salary for the remainder of the contract is set aside in its totality
  3. 3.The award of damages for loss of employment is set aside in its totality
  4. 4.The award of 12 months' salary in compensation for unfair termination is set aside and replaced with 3 months' salary in compensation for unfair termination at Kshs. 45,000/-
  5. 5.The award of exemplary damages is set aside
  6. 6.The award of costs and interests in the Cause before the trial court is upheld, save that the same should be based on the awards in the appeal
  7. 7.Each party bears their own costs of the Appeal

Authorities

#

Legislation

  • Employment Act, 2007Section 42(4)
  • Employment Act, 2007Section 42(1)
  • Employment Act, 2007Section 36
  • Employment Act, 2007Section 40
  • Employment Act, 2007Section 49
  • Employment Act, 2007Definition of probation contract

Cases cited (10)

  • Danish Jalang'o & Another v Amicabre Travel Services Limited (2014) eKLR
    (2014) eKLR
  • Monica Munira Kibuchi & 6 Others v Mount Kenya University & Another (2021) eKLR
    (2021) eKLR
  • Caroline Waithira Kariuki v Mercy Corps (2021) eKLR
    (2021) eKLR
  • Godfrey Julius Ndumba Mbogori & Another v Nairobi City County (2018) eKLR
    (2018) eKLR
  • Rookes v Barnard (1964) AC 1129
    (1964) AC 1129
  • Ol Pejeta Ranching Limited v David Wanjau Muhoro (2017) eKLR
    (2017) eKLR
  • Musera vs. Mwechelesi & Another ([2007]) eKLR
    [2007] eKLR
  • Elizabeth Wakanyi Kibe v Telkom Kenya Ltd [2014] eKLR
    [2014] eKLR
  • D.K. Marete v Teachers Service Commission Cause No. 379 of 2009
    Cause No. 379 of 2009
  • Patrick Njuguna Kariuki v Del Monte Kenya Limited
    Cause 953 of 2011
On appeal from
Chief Magistrate's Employment and Labour Relations Court at Kisumu
Not stated
Jurisdiction invoked
First appeal from the Chief Magistrate's Employment and Labour Relations Court, re-assessment of evidence and law

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (14)

#

Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

#

Cite this brief

Caselaw, "Anytime Limited v Fredrick Mutobera Omuraya [2022] KEELRC 837 (KLR)", Case Analysis (2022). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/837/eng@2022-02-10

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