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ELRCPartially AllowedNot stated in the judgment text provided· [2023] KEELRC 2257 (KLR)

Ambogo v Sameer Agriculture and Livestock (Kenya) Limited (Employment and Labour Relations Cause 199 of 2022) [2023] KEELRC 2257 (KLR)

Employment and Labour Relations Court
29 September 2023
3,512 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ruled that probationary employees have a constitutional right to be heard before termination, and unfair dismissals cannot be excused by a discharge voucher the employer never pleaded.

What this practically means

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Executive summary

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The claimant, engaged as Sales Manager on April 5, 2018 at a gross monthly salary of Ksh. 300,000 and later reassigned as Business Development Manager, was issued a performance improvement plan in December 2018 and had his contract terminated on January 24, 2019 on grounds of failure to meet performance expectations. The respondent contended the termination occurred during probation, requiring only notice without a hearing. The court held that section 42(1) of the Employment Act, which exempts probationary contracts from the section 41 hearing requirement, is inconsistent with Articles 27, 41 and 47 of the Constitution and must, under section 7(1) of the Sixth Schedule, be read as preserving the right to be heard. In any event, the six-month probation had lapsed before termination, and reassignment did not reset it. On the evidence, no section 41 disciplinary process was conducted, so the termination was procedurally flawed and unlawful. The respondent's defence founded on a signed discharge voucher was rejected as un-pleaded, and the court declined to make findings on its validity. The court refused salary for the unexpired contract term as speculative absent a contractual clause sanctioning it, but awarded four months' salary (Ksh. 1,200,000) as compensation, exercising section 12(3)(viii) ELRC Act powers to grant a consequential relief under the omnibus prayer. The respondent was ordered to refund Ksh. 24,000 irregularly deducted from the claimant's salary, with interest on the awards at court rates from the date of judgment, plus costs to the claimant. Other reliefs were deemed declined.

Key legal issues

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01

Constitutionality of section 42(1) of the Employment Act

Holding

Section 42(1) is contrary to the Constitution as it denies probationary employees equal protection, fair labour practices and fair administrative action; it must be read as preserving the right to be heard

Reasoning

The Employment Act predates the Constitution 2010. Section 7(1) of the Sixth Schedule requires pre-existing law to be construed with alterations necessary for conformity with the Constitution. Articles 41, 47 and 27 protect fair labour practices, fair administrative action and equality. Section 42(1) sanctions differential, discriminatory treatment of probationary employees and must be read down accordingly.

p. 6
02

Whether the claimant was on probation at termination

Holding

No; the six-month probation lapsed before the January 24, 2019 termination, and reassignment did not reset it

Reasoning

The claimant was hired on April 5, 2018 for three years, with a six-month probation and no provision for extension. Termination occurred on January 24, 2019, long after probation lapsed. The reassignment letter of June 11, 2018 left terms unchanged and contained no clause resetting probation.

p. 7
03

Procedural fairness of the termination

Holding

The termination was procedurally flawed as no section 41 disciplinary process was conducted

Reasoning

The stated ground was poor performance. Section 41 requires explanation of the charge, notification and an opportunity to respond with witnesses. The January 23, 2019 demand to resign did not qualify as a disciplinary session, and the respondent's witness confirmed no disciplinary process was undertaken.

p. 3
04

Discharge voucher as a defence

Holding

The court declined to determine the voucher's validity because the defence was not pleaded

Reasoning

The respondent led evidence on the discharge voucher without pleading it in its statement of defence. Parties are generally confined to their pleadings, so the court could not determine whether the signature was genuine or the release binding.

p. 8
05

Appropriate remedies

Holding

Four months' salary compensation (Ksh. 1,200,000) as consequential relief plus refund of Ksh. 24,000 wrongful deduction

Reasoning

Section 49 reliefs exclude unexpired-term salary absent contractual sanction; compensation is capped at twelve months. Relying on the omnibus prayer and section 12(3)(viii) ELRC Act, the court granted a consequential award of four months' salary. The Ksh. 24,000 deduction was unsupported by evidence and unlawful under Part IV of the Employment Act.

p. 10

Legal principles established

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  • Section 42(1) of the Employment Act, read with section 7(1) of the Sixth Schedule to the Constitution, must be construed as not depriving probationary employees of the right to be heard before termination
  • An employer must comply with section 41 of the Employment Act before terminating employment on grounds of poor performance
  • Courts may not grant a respondent's un-pleaded defence or return a verdict on un-pleaded matters
  • Salary for the unexpired term of a contract is not payable absent a contractual clause sanctioning it
  • A court may grant a consequential relief not specifically pleaded where the party has asked for any other relief the court deems fit

Court orders

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  1. 1.Declaration that the respondent's termination of the claimant's contract of service is procedurally irregular and therefore unlawful
  2. 2.Compensation equivalent to the claimant's gross salary for four (4) months, i.e. Ksh. 1,200,000.00, subject to applicable statutory deductions
  3. 3.Refund to the claimant of Ksh. 24,000.00 irregularly deducted from his salary
  4. 4.Interest on the awards at court rates from the date of the judgment
  5. 5.Costs of the case to the claimant
  6. 6.Any other relief not expressly granted deemed declined

Authorities

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Legislation

  • Employment Actsection 42(1)
  • Employment Actsection 41
  • Employment Actsection 44(3) and (4)
  • Employment Actsection 49
  • Employment ActPart IV
  • Constitution of Kenya, 2010Article 41
  • Constitution of Kenya, 2010Article 47
  • Constitution of Kenya, 2010Article 27
  • Constitution of Kenya, 2010Section 7(1), Sixth Schedule
  • Employment and Labour Relations Court Actsection 12 and section 12(3)(viii)

Cases cited (11)

  • Monica Munira Kibuchi & 6 others v Mount Kenya University; Attorney General (Interested Party)
    [2021] eKLR
  • Joseph Kareko Gikonyo v County Government of Lamu & 2 others
    [2022] eKLR
  • National Bank of Kenya v Samuel Nguru Mutonya
    [2019] eKLR
  • World Explorers Safaris Limited v Cosmopolitan Travel Limited & another
    [2021] eKLR
  • Livestock Research Organization v Okoko & another
    (Civil Appeal 36 A of 2021) [2022] KEHC 3302 (KLR) (29 June 2022)
  • Grace Otieno v Salaries and Remuneration Commission
    [2020] eKLR
  • Charles Muturi Mwangi v Invesco Assurance Co. Ltd
    [2019] eKLR
  • Kenya Methodist University v Kaungania & another
    (Civil Appeal 61 of 2017) [2022] KECA 90 (KLR) (4 February 2022)
  • Bell & another v I. L. Matterello Limited
    (Civil Appeal 72 of 2019) [2022] KECA 168 (KLR)
  • Timsales Limited v Samuel Kamore Kihara
    [2016] eKLR
  • Rex Hotel Ltd v Jubilee Insurance Co. Ltd
    [1972] EA 211
Jurisdiction invoked
Original jurisdiction under the Employment Act and the Employment and Labour Relations Court Act, including section 12 (3)(viii) ELRC Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Ambogo v Sameer Agriculture and Livestock (Kenya) Limited (Employment and Labour Relations Cause 199 of 2022) [2023] KEELRC 2257 (KLR)", Case Analysis (2023). Not stated in the judgment text provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2257/eng@2023-09-29

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