Achungo v IBM East Africa Limited (Cause 365 of 2019) [2023] KEELRC 902 (KLR)
The bottom line
#A Kenyan employer cannot extend probation past six months; after that, an employee is permanent and termination must follow full Employment Act protections.
What this practically means
#Executive summary
#Key legal issues
#Effect of expiry of the probationary period
The six-month probation ended on 1st May, 2016; the purported extension on 11th May, 2016 was null and void whether or not signed under coercion, and the claimant became a permanent employee
Section 42 caps probation at six months extendable once by agreement for a further six. The initial period expired on 1st May, 2016; the employer's purported reintroduction of probation thereafter was outside the statutory framework, so the claimant enjoyed full statutory protection against unfair termination.
Validity of the termination
Termination was unlawful and unfair for lack of valid reason and fair procedure
The respondent relied on poor work performance but produced no performance evaluation reports and gave no hearing, notice or reasons. The short interval between the purported extension and termination showed the extension was a device to escape the Employment Act's mandatory provisions.
Quantum of remedies
Claimant awarded notice pay, arrear salary and three months' salary compensation with aggravating circumstances
The court considered the claimant's head-hunting, relocation from the USA, deceptive conduct by the respondent, failure to pay earned salary, and absence of a Certificate of Service as aggravating factors under Sections 49(1)(c) and (4), justifying three months' gross salary as compensation.
Legal principles established
#- Upon expiry of the statutory maximum probationary period without confirmation, the employee converts to a permanent employee by operation of law and the employer cannot lawfully extend probation
- Once the probationary period expires, termination is subject to the mandatory procedural and substantive requirements of Sections 36, 41, 43 and 45 of the Employment Act
Court orders
#- 1.One month salary in lieu of notice of Kshs 728,922
- 2.Arrear salary for May and June, 2016 of Kshs 1,093,563
- 3.Compensation of Kshs 2,186,766 (equivalent of three months' salary), total award Kshs 4,009,251
- 4.Interest at court rates from date of judgment till payment in full
- 5.Certificate of Service to be provided to the claimant within 30 days of the judgment
- 6.Respondent to meet the costs of the suit
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, No. 11 of 2007
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Achungo v IBM East Africa Limited (Cause 365 of 2019) [2023] KEELRC 902 (KLR)", Case Analysis (2023). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/902/eng@2023-04-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.