Kariuki v Karina (Sued as the Chief Commissioner of Kenya Girl Guides Association) & 2 others (Cause 1262 of 2018) [2023] KEELRC 2088 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Status of employment at termination
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
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.
Procedural fairness
Termination was procedurally unfair because the Claimant was neither notified of the reasons nor accorded a hearing under section 41 of the Employment Act
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.
Substantive fairness
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
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.
Reliefs
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
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.
Legal principles established
#- 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
#- 1.A declaration that the termination of the Claimant's employment was both procedurally and substantively unfair
- 2.Award of salary for the 22 days worked in July 2018 of Ksh.256,667
- 3.Award of salary in lieu of notice of Ksh.350,000
- 4.Award of leave earned and not taken of Ksh.204,167
- 5.Award of compensation pursuant to section 49 of the Employment Act of Ksh.1,750,000
- 6.Costs of the suit to the Claimant
- 7.Interest at court rates from the date of judgment until full payment
- 8.Respondent to issue a Certificate of Service within 30 days
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.