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ELRCPartially AllowedCause No E086 of 2022· [2023] KEELRC 2277 (KLR)

Ramtu v Muslims for Human Rights (MUHURI) (Cause E086 of 2022) [2023] KEELRC 2277 (KLR)

Employment and Labour Relations Court
21 September 2023
2,493 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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The claimant, employed as Executive Director of the respondent on 2 June 2021 at a gross salary of Kshs. 510,000 per month, was placed on a 6-month probation. The respondent issued a termination notice on 13 March 2022 citing non-extension of probation, summoned her for an appraisal in April 2022, and terminated her employment effective 22 April 2022 without notice or hearing. She claimed discrimination, alleging she was branded an LGBTQ proponent and condemned over anonymous complaints she was never given a chance to answer, and sought notice pay, 12 months' compensation and general damages. The respondent contended she remained on probation, which the board had discretion to extend, justifying termination within probation. The court framed three issues: discrimination, unfair termination, and remedies. It held that once an employee pleads discriminatory treatment, the burden shifts to the employer under Section 5(7) of the Employment Act, and the respondent made no effort to displace it, so discrimination contrary to Section 5 and Article 27 was established. On termination, the court held the probation lapsed on 1 December 2021; under Section 42(2) any extension required the employee's agreement, and the employer could not extend probation sua sponte. Having become a substantive employee, the claimant was entitled to Section 41 procedural safeguards and 3 months' notice under the respondent's HR policy, following Monica Munira Kibuchi. Termination was therefore unlawful and unfair. Judgment was entered with declarations of discrimination and unfair termination, damages of Kshs. 510,000, compensation of Kshs. 510,000, and notice pay of Kshs. 1,530,000; general damages as pleaded were not awarded and each party was ordered to bear its own costs.

Key legal issues

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01

Discrimination against the claimant

Holding

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.

Reasoning

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.

p. 4
02

Unfair termination during purported probation extension

Holding

The probation lapsed on 1 December 2021; the claimant became substantive ED, and termination without hearing under Section 41 was unlawful and unfair.

Reasoning

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.

p. 4
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Remedies

Holding

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.

Reasoning

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.

p. 5

Legal principles established

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  • 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

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  1. 1.A declaration that the claimant was discriminated against by the respondent
  2. 2.A declaration that the claimant's employment was unfairly terminated by the respondent
  3. 3.Damages awarded at Ksh. 510,000
  4. 4.Compensation awarded at Ksh. 510,000
  5. 5.Notice pay awarded at Ksh. 1,530,000
  6. 6.Each party to bear own costs

Authorities

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Legislation

  • Employment ActSection 5 (including Section 5(7))
  • Employment ActSection 41
  • Employment ActSection 42 (including Section 42(2))
  • Constitution of KenyaArticle 22
  • Constitution of KenyaArticle 27
  • Constitution of KenyaArticle 41
  • Constitution of KenyaArticle 47

Cases cited (3)

  • AKO v Abson Motors Limited
    [2021] eKLR
  • Keith Wright v Kentegra Biotechnology (Epz) Ltd
    [2021] eKLR
  • Monica Munira Kibuchi & 6 others v Mount Kenya University and Attorney General (Interested Party)
    [2021] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 and Articles 27, 41 and 47 of the Constitution

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, "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.