Winnie Chemutai Chepkony v Jamii Bora Bank [2022] KEELRC 984 (KLR)
The bottom line
#A Kenyan court ruled that a bank unfairly fired an employee because her probation could not be extended without her agreement, and she was never heard before dismissal.
What this practically means
#Executive summary
#Key legal issues
#Whether the claimant's probation was validly extended
The purported extension was ineffectual for lack of mutuality; the claimant stood confirmed upon lapse of the 3-month probationary period.
Section 42(2) of the Employment Act permits extension of probation beyond six months only with the employee's agreement. The claimant refused to sign the extension letter, and the respondent produced no evidence of follow-up communication or of the claimant's acceptance. The extension letter also made no reference to performance. The court inferred there was no agreement, so the claimant was confirmed by operation of law and was not on probation at termination.
Whether the termination was substantively justified
The respondent failed to prove valid and fair reasons; poor loan disbursement performance stemmed from the bank's operational/liquidity problems, not the claimant.
Under sections 43(1) and 45(2) of the Employment Act, the employer bears the burden of proving reasons for termination. The termination letter cited loan disbursement below 50%. Email evidence from the respondent's own Head of Medium Enterprise showed liquidity shortages and a lending slowdown affecting disbursements, showing the shortfall was not entirely attributable to the claimant. The respondent thus failed to justify the termination.
Whether fair procedure under section 41 was followed
No evidence that the claimant was accorded an opportunity to be heard on the non-performance allegations; procedure was unfair.
Section 41(1) requires an employer to explain to the employee, in a language they understand, the reasons for contemplated termination on grounds of poor performance, and to allow another employee or union representative present. There was no evidence this occurred; the termination letter did not respond to the claimant's explanation to the show cause letter. The court adopted the Jane Samba Mukala reasoning that an employee must be allowed to defend themselves before termination for poor performance.
Legal principles established
#- Extension of a probationary period requires the agreement of the employee; without evidence of mutuality, the employee stands confirmed upon lapse of the contractual probation.
- An employer must prove both valid reasons for termination and compliance with fair procedure; failure renders termination unfair.
Court orders
#- 1.Compensatory damages of Kshs 280,000/= (equivalent to 2 months gross salary)
- 2.One month's salary in lieu of notice of Kshs 140,000/=
- 3.10 days accrued leave of Kshs 46,667/=
- 4.Salary for 5 days worked in January 2016 of Kshs 23,333/=
- 5.Total award of Kshs 490,000/=
- 6.Claimant to have the costs of the suit
- 7.Interest on the total award at court rates from the date of judgment till payment in full
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment disputes (memorandum of claim under the Employment Act)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Winnie Chemutai Chepkony v Jamii Bora Bank [2022] KEELRC 984 (KLR)", Case Analysis (2022). Cause No 316 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/984/eng@2022-01-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.