Omudeck v Oshwal Education and Relief Board (Cause 1958 of 2017) [2022] KEELRC 1415 (KLR)
The bottom line
#Kenyan employees on probation are entitled to fair procedures before termination—employers can no longer fire probationers without valid reasons and a hearing.
What this practically means
#Executive summary
#Key legal issues
#Whether the substantive and procedural safeguards in Sections 41, 43 and 45 of the Employment Act apply to employees on probation
Yes. Section 42(1) is null and void to the extent it excludes probationary employees from Section 41 safeguards; an employee on probation enjoys full employment rights under Article 41 of the Constitution
The court traced two conflicting schools of authority on probationary terminations, then followed the three-judge bench decision in Monica Munira Kibuchi declaring Section 42(1) unconstitutional, and Ndolo J's reasoning in Evans Kiage Onchwari. Since a probationer is still an 'employee' under Section 2 of the Act and labour rights are constitutional rights limitable only under Article 24, the Respondent was bound to afford procedural fairness before termination.
Whether the Claimant's termination during probation was lawful
No. The termination was procedurally flawed and consequently unfair because the Respondent neither evaluated performance, explained reasons, afforded a hearing nor considered representations
Beyond issuing the termination letter dated 1st August 2017, the Respondent conducted no performance evaluation, gave no explanation of reasons, did not invite the Claimant to a hearing or allow representations or accompaniment, and considered none before terminating. Payment of seven days' notice pay could not cure these omissions.
Whether the Claimant was discriminated against on account of race
No. The Respondent discharged its burden of proof under Section 5(7) of the Employment Act on a balance of probability
Under Section 5(7) the employer bears the burden of proving no discrimination. The Respondent's witness testified the recruitment policy was non-discriminatory and most Nairobi Campus employees were Kenyans of African origin. The Claimant admitted on cross-examination that the advertisement had no race specification and that he had no evidence of when or on what basis Punit Shah was hired, and tendered no particulars of any discriminatory policy.
What reliefs are available to the Claimant
Certificate of service under Section 51; two months' gross salary as compensation under Section 49(1); seven days' notice pay; compensation for the unexpired 22-month contract, one month's notice pay and damages for discrimination refused
Compensation for the remainder of the contract is a claim for anticipatory earnings unsupported by law per D. K. Njagi Marete v Teachers Service Commission, and is exclusionary of the Section 49(1)(c) claim. Notice pay was limited to seven days per the probation clause which the Claimant had declined. Section 49(4) factors — the two-month tenure, probationary status, clean record and contemplated contract duration — yielded the equivalent of two months' salary.
Legal principles established
#- Section 42(1) of the Employment Act is null and void to the extent that it excludes employees on probation from the procedural safeguards of Section 41(1), being inconsistent with Articles 41 and 47 of the Constitution (following Monica Munira Kibuchi & 6 others v Mount Kenya University)
- Termination of a probationary contract without performance evaluation, explanation of reasons, hearing or consideration of representations is procedurally flawed and consequently unfair
Court orders
#- 1.The equivalent of two (2) months' gross salary
- 2.Seven (7) days' notice pay
- 3.Costs of this suit
- 4.Interest at court rates from the date of judgment till payment in full
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under Article 162(2) of the Constitution and the Employment Act, 2007 (not expressly cited in the judgment text)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Omudeck v Oshwal Education and Relief Board (Cause 1958 of 2017) [2022] KEELRC 1415 (KLR)", Case Analysis (2022). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/1415/eng@2022-05-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.