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ELRCPartially AllowedELRC Cause No. 1262 of 2018· [2023] KEELRC 2088 (KLR)

Kariuki v Karina (Sued as the Chief Commissioner of Kenya Girl Guides Association) & 2 others (Cause 1262 of 2018) [2023] KEELRC 2088 (KLR)

Employment and Labour Relations Court
31 May 2023
7,561 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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A Kenyan court ruled the Girl Guides Association unfairly fired its finance chief, awarding him over Ksh.2.5 million because his probation had already expired.

What this practically means

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Executive summary

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The Claimant was employed by the 3rd Respondent as Chief Finance Officer on a three-year fixed-term contract effective September 1, 2017, with a six-month probationary period. His employment was terminated with effect from July 20, 2018 on the ground that he had not met the Association's expectations. The court framed four issues: the status of employment at termination, fairness of the termination, entitlement to reliefs, and costs. It held that since the probation lapsed on February 28, 2018 without confirmation, extension in writing, or termination within the period as the Respondent's HR Manual required, the Claimant was deemed confirmed by effluxion of time. On procedural fairness, the court found no notification, hearing or consideration of representations under section 41 of the Employment Act; appraisal comments could not substitute for that process. On substantive fairness, the reason given was too general, and the termination contradicted the supervisor's recommendation that the Claimant be placed on a performance improvement plan with a September 2018 review. The termination was declared both procedurally and substantively unfair. Reinstatement was refused as barred by the three-year limitation in section 12(3)(vii) of the ELRC Act, though the court criticised the provision. The court awarded salary for 22 days worked in July 2018 (Ksh.256,667), one month's salary in lieu of notice (Ksh.350,000), prorated untaken leave (Ksh.204,167), and five months' gross salary as compensation (Ksh.1,750,000), plus interest, costs and a certificate of service. Gratuity was declined as the contract made no provision for it. Judgment dated May 31, 2023, delivered virtually at Nairobi by Ocharo Kebira, J.

Key legal issues

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01

Status of employment at termination

Holding

The Claimant was deemed confirmed upon lapse of probation, as the employer neither terminated within the probation period nor validly extended it in writing as required by the HR Manual and section 42 of the Employment Act

Reasoning

The contract provided for a six-month probation lapsing February 28, 2018. The HR Manual required written communication of confirmation or extension before lapse of probation. The appraisal was only initiated March 1, 2018, after probation lapsed, and no extension letter was issued. The Respondents did not controvert the Claimant's evidence of non-extension. The court adopted the principle in David Namu Kariuki that an employee is deemed confirmed by effluxion of time.

p. 10
02

Procedural fairness

Holding

Termination was procedurally unfair because the Claimant was neither notified of the reasons nor accorded a hearing under section 41 of the Employment Act

Reasoning

Section 41 embodies notification, hearing and consideration components. The Claimant's unchallenged evidence was that he received no warning, notice to show cause or hearing. Comments on an appraisal form cannot substitute for the section 41 process, as appraisal matters are pre-process considerations. The termination was therefore procedurally unfair.

p. 12
03

Substantive fairness

Holding

The employer failed to prove a valid and fair reason; the reason given was too general and the termination contradicted the supervisor's recommendation of a performance improvement plan

Reasoning

Under sections 43 and 45(2), the employer must prove and justify the reasons. The termination letter cited only failure to meet expectations, which the court found too general. The supervisor recommended a performance improvement plan with a September 2018 review, yet termination preceded the review, and no explanation was given for abandoning the plan. The termination was substantively unfair.

p. 13
04

Reliefs

Holding

Reinstatement refused as barred by the three-year rule; monetary reliefs awarded for salary for days worked, notice, leave and five months' compensation; gratuity refused

Reasoning

Reinstatement is barred by section 12(3)(vii) beyond three years post-separation, though the court criticised the provision. Salary was awarded for 22 (not 23) days of July 2018; one month's salary in lieu of notice under sections 35 and 36; prorated leave of Ksh.204,167 based on the employer's admission in the termination letter; and five months' gross salary compensation considering the insensitive manner of termination and length of service. Gratuity was refused as not provided in the contract.

p. 14

Legal principles established

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  • Where a probationary period lapses without confirmation or valid written extension, the employee is deemed confirmed by effluxion of time
  • Fairness in termination has two components: substantive justification and procedural fairness, absence of either renders termination unfair
  • The argument that sections 43 and 45 of the Employment Act do not apply to probationary employees is contrary to the constitutional right to equal protection
  • Terminating an employee mid-performance improvement plan without evaluation is unfair, and a vague or general reason for termination discharges neither the section 43 nor section 45 burden

Court orders

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  1. 1.A declaration that the termination of the Claimant's employment was both procedurally and substantively unfair
  2. 2.Award of salary for the 22 days worked in July 2018 of Ksh.256,667
  3. 3.Award of salary in lieu of notice of Ksh.350,000
  4. 4.Award of leave earned and not taken of Ksh.204,167
  5. 5.Award of compensation pursuant to section 49 of the Employment Act of Ksh.1,750,000
  6. 6.Costs of the suit to the Claimant
  7. 7.Interest at court rates from the date of judgment until full payment
  8. 8.Respondent to issue a Certificate of Service within 30 days

Authorities

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Legislation

  • Employment Act, 2007Section 8
  • Employment Act, 2007Section 35
  • Employment Act, 2007Section 36
  • Employment Act, 2007Section 41
  • Employment Act, 2007Section 42
  • Employment Act, 2007Section 43
  • Employment Act, 2007Section 45
  • Employment Act, 2007Section 49
  • Employment and Labour Relations Court ActSection 12(3)(vii)
  • Constitution of Kenya, 2010Article 159(2)(d)
  • Constitution of Kenya, 2010Article 48
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B

Cases cited (13)

  • Jane Samba Maka vs Oltukai Lodge Limited
    (2010) LLR
  • Benjamin Nyambati Ondiba vs Egerton University
    (2014) eKLR
  • L vs British Columbia (Interior Health Authority)
    2017 BSSC
  • Danish Jalango & Another vs Amicabre Travel Services
    (2014) eKLR
  • Kenya Airways Limited vs Aviation & Allied Workers Union Kenya & 3 others
    (2014) eKLR
  • Rogoli Ole Manadiegi vs General Cargo Services Limited
    (2016) eKLR
  • Bamburi Cement Ltd vs Farid Aboud Mohamed
    (2016) eKLR
  • Nelson Keshei vs Narok County Government & Another
    (2019) eKLR
  • Samson Buluma Mumia vs DPL Festive Ltd
    2012 eKLR
  • David Namu Kariuki v Commissioner for Implementation of the Constitution
    [2015] eKLR
  • Jane Wairiumu Macharia vs Mugo Waweru and Associates
    Cause No. 621 of 2012
  • National Bank of Kenya v Samuel Nguru Mutonya
    [2019] eKLR
  • Jane Samba Mukala v Ol Tukai Lodge Limited
    Industrial Cause No. 823 of 2010 LLR 255 (ICK, 2013)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act and the Employment and Labour Relations Court Act (sections 35, 36, 41, 42, 43, 45, 49 of the Employment Act, 2007; section 12(3)(vii) of the ELRC Act)

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, "Kariuki v Karina (Sued as the Chief Commissioner of Kenya Girl Guides Association) & 2 others (Cause 1262 of 2018) [2023] KEELRC 2088 (KLR)", Case Analysis (2023). ELRC Cause No. 1262 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2088/eng@2023-05-31

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.