Kamau v Kevian Kenya Ltd (Cause 467 of 2019) [2023] KEELRC 627 (KLR)
The bottom line
#A Kenyan court declared Kevian's termination of an employee unlawful but denied compensation because she had signed a discharge voucher accepting payment.
What this practically means
#Executive summary
#Key legal issues
#Whether the claimant was still on probation when her employment was terminated on April 12, 2019
No - the extended probation lapsed on March 1, 2019 and the respondent's failure to act, coupled with continued service, constructively confirmed her employment
The appointment letter provided a six-month probation with no extension clause, but the claimant accepted by signature a three-month extension to March 1, 2019. On that date the respondent neither confirmed nor terminated her, and she continued working until April 12, 2019. Relying on Ogembo's Employment Law Guide and Benjamin Nyambati Ondiba v Egerton University, the court held that inaction at the close of probation results in confirmation by operation of law, after which the employer cannot re-open the probation clause.
Whether the termination for poor performance was lawful
No - the respondent failed to prove agreed performance targets, evaluation instruments, or procedural fairness under sections 41, 43 and 45 of the Employment Act
Applying Philomena Kitony Paul and National Bank of Kenya v Samuel Nguru Mutonya, the employer bears the burden of demonstrating pre-set, objectively measurable performance goals, an opportunity to improve, notice of the accusation and a chance to respond. No targets, evaluation instruments, minutes of performance meetings or scorecards were produced, and the claimant was never served a notice to explain or subjected to a disciplinary session before termination.
Whether the discharge voucher bars the claimant's claim for compensation
Yes - the voucher was voluntarily executed and the claimant neither pleaded nor proved coercion or undue influence, so the court cannot re-open payments
A discharge voucher is equated to a contract with binding effect unless assailed on vitiating grounds. The claimant admitted receiving Ksh 543,977, signing the voucher, and reading and understanding it. The allegation of being 'ambushed' surfaced only in cross-examination, having never been pleaded. Where duress or undue influence is pleaded, it must be specifically proved to a heightened standard; this was not done, so the claimant is taken to have relinquished further reliefs.
Legal principles established
#- Where an employer neither confirms nor terminates an employee at the close of the probationary period and the employee continues in service, the contract is constructively confirmed by operation of law
- Termination for poor performance requires objectively agreed and measurable performance standards, an opportunity to improve, and procedural compliance under sections 41, 43 and 45 of the Employment Act
- A duly executed discharge voucher is equated to a contract and binds the parties unless successfully impugned on grounds vitiating a contract; duress must be specifically pleaded and proved
Court orders
#- 1.The court declares that the claimant's contract of service was unlawfully terminated
- 2.The court shall not grant the claimant monetary compensation for the unlawful termination
- 3.The court makes no orders as to costs
- Jurisdiction invoked
- Original jurisdiction of the Employment and Labour Relations Court under the Employment Act (cause for unfair termination)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kamau v Kevian Kenya Ltd (Cause 467 of 2019) [2023] KEELRC 627 (KLR)", Case Analysis (2023). Cause No 467 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/627/eng@2023-03-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.