Oloo v Usafi Services Limited (Cause 1075 of 2016) [2023] KEELRC 1609 (KLR)
The bottom line
#Kenyan employers cannot fire probationary staff for poor performance without proving they set clear targets and measured performance fairly.
What this practically means
#Executive summary
#Key legal issues
#Whether Section 41 procedural fairness applies to termination of a probationary employee
It does not; under Section 42(1) the respondent was not strictly bound by Section 41, per Monica Munira Kibuchi v Mount Kenya University
The court held that where termination occurs during or shortly after probation, Section 42(1) ousts the Section 41 procedure. Relying on Monica Munira Kibuchi, that provision remained good law, so the respondent could not be said to have acted outside the applicable law by omitting Section 41 procedures.
Whether substantive fairness under Sections 43 and 45(2)(a) and (b) applies to probationary terminations
Yes; the employer must prove valid and fair reasons even for a probationary employee
Following Mercy Karingithi and Happiness Nyabonyi Maingo, the court held that the Employment Act has not ousted substantive fairness for probationers. The employment relationship and statutory rights against unfair termination subsist during probation; only Section 41 procedure is abrogated. The respondent therefore bore the burden of justifying the reasons for dismissal.
Whether the respondent proved the performance-based reasons for dismissal
No; there were no pre-agreed targets and no performance measurement system
The job description was received only five days before the review, no targets were set at appointment, and sales figures were exhibited without claimant-specific targets, making them uninterpretable. The misconduct allegations were too general and unsubstantiated. The evidentiary burden under Sections 43 and 45(2)(a) and (b) was not met.
Whether the counterclaim of Kshs 30,390 is sustainable
No; the counterclaim was defective and unproved
The defence and counterclaim were not accompanied by a Verifying Affidavit as required by Order 7 Rule 5(a) and Order 4 Rule 1(2) of the Civil Procedure Rules, and the defect was never cured. Even apart from the defect, the respondent failed to attribute the loss to the claimant or prove the quantum of the specific claim.
Legal principles established
#- Sections 43 and 45 of the Employment Act (substantive fairness) apply to termination of probationary employees; only the procedural fairness requirement of Section 41 is abrogated by Section 42
- An employer terminating for poor performance must prove set targets and a system of measuring good performance against poor performance
- Contractual notice periods longer than the statutory minimum are binding; the statutory notice is a floor, not a ceiling
Court orders
#- 1.A declaration that the claimant's termination from employment was unfair
- 2.Three months' salary in lieu of notice of Kshs 375,000.00
- 3.Compensatory damages of Kshs 250,000.00 equivalent to two months' gross salary
- 4.Salary for 16 days worked in February 2016 of Kshs 66,666.67
- 5.Total award of Kshs 691,666.67 with interest at court rates from date of judgment until payment in full
- 6.The counterclaim is dismissed
- 7.The claimant shall have the costs of the suit
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act (first-instance statement of claim)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Oloo v Usafi Services Limited (Cause 1075 of 2016) [2023] KEELRC 1609 (KLR)", Case Analysis (2023). Cause No 1075 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1609/eng@2023-06-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.