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ELRCDismissedNot stated in the judgment· [2023] KEELRC 2422 (KLR)

Mwangi v Denko Properties Ltd & another (Cause 494 of 2019) [2023] KEELRC 2422 (KLR)

Employment and Labour Relations Court
3 October 2023
DMD. K. Njagi Marete
2,070 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ruled a probationary employee's dismissal lawful because the employer proved poor performance, so no compensation was awarded.

What this practically means

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Executive summary

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The Claimant, formerly Marketing Manager of the 1st Respondent, sued challenging the termination of his employment, alleging he was dismissed on allegations of unsatisfactory performance without due process and without terminal benefits. He sought a declaration that the termination was procedurally unfair and substantively unjustified, service pay, damages equivalent to three months' salary, and costs. The Respondents admitted the employment but asserted the Claimant failed to perform during his probationary period; the 2nd Respondent, the Human Resource Officer, denied personal liability as a stranger to the employment contract. The court framed three issues: lawfulness of the termination, entitlement to relief, and costs. The Claimant relied on authorities establishing that probationers enjoy constitutional labour rights under Article 41 and on the three-judge bench decision in Monica Munira Kibuchi declaring section 42(1) of the Employment Act unconstitutional. The court acknowledged this protective jurisprudence but noted sections 41 and 42(2) are not strictly applicable to probationary terminations. On the evidence, principally the Respondent's contractual documentation and correspondence, the court found the Claimant had failed to perform to the required standards and held the termination lawful. The claim was dismissed with no relief granted, and the court directed each party to bear their own costs. The Respondent filed no submissions and did not appear at the delivery of the judgment.

Key legal issues

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01

Whether termination of the Claimant's probationary employment was wrongful, unfair and unlawful

Holding

Termination was lawful; the Claimant failed to perform to the required standards during probation

Reasoning

The court reviewed the contractual documents and correspondence exhibited by the Respondent, found the Claimant's inability to meet required performance standards during probation, and concluded the Respondent lawfully terminated the probationary contract. Although it acknowledged the protective jurisprudence on probationers' rights, the court found the facts did not disclose unfair or unlawful termination. The Respondent filed no submissions.

p. 5
02

Entitlement to the relief sought

Holding

None of the reliefs were granted as the termination was lawful

Reasoning

Having found lawful termination, the court held the Claimant disentitled to the declaration, service pay and damages claimed. The court nonetheless exercised discretion on costs, directing each party to bear their own costs despite dismissing the claim.

p. 5

Legal principles established

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  • An employee serving under a probationary contract is entitled to constitutional labour rights under Article 41, which may only be limited per Article 24
  • Section 42(1) of the Employment Act, insofar as it excludes probationary employees from section 41 safeguards, was declared unconstitutional in Monica Munira Kibuchi
  • Sections 41 and 42(2) of the Employment Act are not strictly applicable to termination of probationary contracts

Court orders

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  1. 1.Claim dismissed
  2. 2.Each party to bear their own costs

Authorities

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Legislation

  • Employment Actsection 41
  • Employment Actsection 42 (including 42(1) and 42(2))
  • Employment Actsection 2
  • Constitution of Kenya, 2010Article 41
  • Constitution of Kenya, 2010Article 24
  • Constitution of Kenya, 2010Article 47

Cases cited (4)

  • Mercy Njoki Karingithi v Emrald Hotels Resorts & Lodges Ltd
    [2014] eKLR
  • Evans Kiage Onchwari v Hotel Ambassadeur Nairobi
    [2016] eKLR
  • Monica Munira Kibuchi & 6 others v Mount Kenya University; Attorney General (Interested Party)
    [2021] eKLR
  • Menginya Salim Murgani v. Kenya Revenue Authority
    HCCC No. 1139 of 2002
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act and the Constitution (Article 41 labour rights invoked)

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, "Mwangi v Denko Properties Ltd & another (Cause 494 of 2019) [2023] KEELRC 2422 (KLR)", Case Analysis (2023). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2422/eng@2023-10-03

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