Ramtu v Muslims for Human Rights (MUHURI) (Cause E086 of 2022) [2023] KEELRC 2277 (KLR)
The bottom line
#A Kenyan court ruled an employer illegally extended probation and fired an executive unfairly, awarding her over Kshs 2.5 million.
What this practically means
#Executive summary
#Key legal issues
#Discrimination against the claimant
Discrimination was established; the respondent made no effort to disprove the discriminatory treatment, violating Section 5 of the Employment Act and Article 27 of the Constitution.
The claimant pleaded that she was targeted over alleged LGBTQ advocacy and anonymous complaints she was never allowed to respond to. Section 5(7) of the Employment Act places the burden on the employer to disprove discrimination once a prima facie case is made. The respondent adduced no effort to rebut the claim, so the conduct was unjustified and unconstitutional, entitling the claimant to damages.
Unfair termination during purported probation extension
The probation lapsed on 1 December 2021; the claimant became substantive ED, and termination without hearing under Section 41 was unlawful and unfair.
The claimant was on probation for 6 months from 2 June 2021, ending 1 December 2021. Under Section 42(2), any extension requires the employee's agreement, which was never obtained. The employer could not unilaterally extend probation. Once the probation lapsed, Section 41 procedural safeguards and the contractual 3 months' notice applied. Termination without notice or hearing was therefore devoid of due process.
Remedies
Entitlement to 3 months' notice pay (Ksh. 1,530,000), and one month's pay each as damages for discrimination and compensation for unfair termination (Ksh. 510,000 each); general damages as pleaded not awarded.
The HR policy provided for one month's notice during probation and 3 months' notice for the substantive role, so 3 months' notice pay at Ksh. 510,000 per month applied. Given the short service of under a year, the court found one month's pay appropriate for both the discrimination damages and the unfair termination compensation, rather than the 12 months' compensation claimed.
Legal principles established
#- Once an employee pleads discriminatory treatment and establishes a prima facie case, the burden shifts to the employer to prove that discrimination did not take place as alleged (Section 5(7), Employment Act).
- An employee on probation is entitled to a hearing before termination; the exclusion of probationary employees from Section 41 safeguards is unconstitutional.
- A probationary period lapses as agreed and any extension beyond six months requires the employee's agreement; an employer cannot extend or act on probation sua sponte.
- Where the probation lapses and the employee becomes substantive, termination requires due process under Section 41 of the Employment Act and contractual notice.
Court orders
#- 1.A declaration that the claimant was discriminated against by the respondent
- 2.A declaration that the claimant's employment was unfairly terminated by the respondent
- 3.Damages awarded at Ksh. 510,000
- 4.Compensation awarded at Ksh. 510,000
- 5.Notice pay awarded at Ksh. 1,530,000
- 6.Each party to bear own costs
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 and Articles 27, 41 and 47 of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ramtu v Muslims for Human Rights (MUHURI) (Cause E086 of 2022) [2023] KEELRC 2277 (KLR)", Case Analysis (2023). Cause No E086 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2277/eng@2023-09-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.