Ambogo v Sameer Agriculture and Livestock (Kenya) Limited (Employment and Labour Relations Cause 199 of 2022) [2023] KEELRC 2257 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Constitutionality of section 42(1) of the Employment Act
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
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.
Whether the claimant was on probation at termination
No; the six-month probation lapsed before the January 24, 2019 termination, and reassignment did not reset it
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.
Procedural fairness of the termination
The termination was procedurally flawed as no section 41 disciplinary process was conducted
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.
Discharge voucher as a defence
The court declined to determine the voucher's validity because the defence was not pleaded
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.
Appropriate remedies
Four months' salary compensation (Ksh. 1,200,000) as consequential relief plus refund of Ksh. 24,000 wrongful deduction
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.
Legal principles established
#- 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
#- 1.Declaration that the respondent's termination of the claimant's contract of service is procedurally irregular and therefore unlawful
- 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.Refund to the claimant of Ksh. 24,000.00 irregularly deducted from his salary
- 4.Interest on the awards at court rates from the date of the judgment
- 5.Costs of the case to the claimant
- 6.Any other relief not expressly granted deemed declined
- 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
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Simiyu v Buke Tours & Safaris Limited & another (Cause E025 of 2023) [2025] KEELRC 2050 (KLR)[2025] KEELRC 2050 (KLR)10 Jul 2025applied
- Lusuli v Nuclear Power & Energy Agency (NUPEA) (Cause E1051 of 2024) [2025] KEELRC 1181 (KLR)[2025] KEELRC 1181 (KLR)24 Apr 2025applied
Cite this brief
#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.