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ELRCPartially AllowedCause No 467 of 2019· [2023] KEELRC 627 (KLR)

Kamau v Kevian Kenya Ltd (Cause 467 of 2019) [2023] KEELRC 627 (KLR)

Employment and Labour Relations Court
16 March 2023
3,086 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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The claimant, engaged on June 7, 2018 as an Export and Local Sales Manager at a gross salary of Ksh 400,000 on a six-month probation, was terminated by the respondent on April 12, 2019 on grounds of unsatisfactory performance after a three-month probationary extension to March 1, 2019. She sued seeking a declaration that the termination was unlawful and compensation for wrongful termination. The respondent argued she failed her performance targets and that her terminal dues of Ksh 543,977 were paid against a signed discharge voucher closing the matter. The court framed three issues: whether the parties were still on probation at termination, whether the termination was lawful, and entitlement to reliefs. It held that the probation lapsed on March 1, 2019 and, the respondent having neither confirmed nor terminated her by then while she continued in service, her employment was constructively confirmed by operation of law. On the merits, the respondent produced no evidence of agreed performance targets, evaluation instruments, performance reviews or a disciplinary hearing, and the claimant was never given notice to respond to the poor-performance accusation, breaching sections 41, 43 and 45 of the Employment Act. The court therefore declared the termination unlawful. However, the claimant admitted receiving Ksh 543,977 under a discharge voucher she read, understood and signed voluntarily; her later assertion of coercion was neither pleaded nor proved to the heightened standard required. The voucher bound her and barred further claims, so monetary compensation was refused. The court made no orders as to costs. Judgment delivered online on March 16, 2023 by B. O. M. Manani, Judge.

Key legal issues

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01

Whether the claimant was still on probation when her employment was terminated on April 12, 2019

Holding

No - the extended probation lapsed on March 1, 2019 and the respondent's failure to act, coupled with continued service, constructively confirmed her employment

Reasoning

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.

p. 5
02

Whether the termination for poor performance was lawful

Holding

No - the respondent failed to prove agreed performance targets, evaluation instruments, or procedural fairness under sections 41, 43 and 45 of the Employment Act

Reasoning

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.

p. 7
03

Whether the discharge voucher bars the claimant's claim for compensation

Holding

Yes - the voucher was voluntarily executed and the claimant neither pleaded nor proved coercion or undue influence, so the court cannot re-open payments

Reasoning

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.

p. 9

Legal principles established

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  • 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

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  1. 1.The court declares that the claimant's contract of service was unlawfully terminated
  2. 2.The court shall not grant the claimant monetary compensation for the unlawful termination
  3. 3.The court makes no orders as to costs

Authorities

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Legislation

  • Employment Actsection 41
  • Employment Actsection 43
  • Employment Actsection 45
  • ELRC Procedure Rulesrule 28(3)

Cases cited (12)

  • Benjamin Nyambati Ondiba v Egerton University
    [2014] eKLR
  • Philomena Kitony Paul Board of Management Holy Spirit Secondary School (ELRC Cause No 808 of 2018)
    unreported
  • National Bank of Kenya v Samuel Nguru Mutonya
    [2019] eKLR
  • Jane Samba Mukala v Ol Tukai Lodge Limited
    Industrial Cause Number 823 of 2010; (2010) LLR 255 (ICK)
  • Thomas Otieno Oluoko v Uzuri Foods Limited (Golden Harvest Mills
    [2021] eKLR
  • Christine Juma Were v Kenafric Industries Ltd
    [2021] eKLR
  • Amos Kioko Musyoka & 7 others v Cmc Motors Group Limited
    [2021] eKLR
  • Pauline Waigumo Muthiga v Diamond Trust Bank Ltd
    [2021] eKLR
  • Thomas De La Rue (K) Ltd v David Opondo Omutelema
    [2013] eKLR
  • Coastal Bottlers Limited v Kimathi Mithika
    [2018] eKLR
  • Trinity Prime Investment Limited v Lion of Kenya Insurance Company Limited
    [2015] eKLR
  • Patel & another v MJC & another (Suing as the guardians of PJP
    Civil Appeal 182 of 2019; [2022] KECA 364 (KLR)
Jurisdiction invoked
Original jurisdiction of the Employment and Labour Relations Court under the Employment Act (cause for unfair termination)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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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.