Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCPartially AllowedCause No 1358 of 2018· [2023] KEELRC 2429 (KLR)

Munyua v Industrial Promotion Services (K) Limited & another (Cause 1358 of 2018) [2023] KEELRC 2429 (KLR)

Employment and Labour Relations Court
6 October 2023
4,861 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~19 min to read original · ~4 min brief

The bottom line

#

A Kenyan court confirmed that even probationary employees are protected from unfair termination, and employers must prove valid reasons for dismissal.

What this practically means

#

Executive summary

#
The Claimant, a Human Resource specialist, was offered employment by the 1st Respondent as Group Human Resource Manager - Organization Development on a permanent and pensionable basis subject to six months' probation, at a gross monthly salary of Kshs 900,000. She commenced work on 2nd July 2018 and was terminated on 10th August 2018, after approximately five weeks, on grounds of inability to understand the corporate strategy and incompatibility with the change management programme. She claimed declarations of unfair and unconstitutional dismissal, twelve months' salary as compensation, notice pay, salary for days worked, a certificate of service, costs and interest. The Respondents contended that competency gaps were identified, that the termination was fair and lawful, and that the suit should be dismissed with costs. The court framed two issues: whether the termination was unfair and unlawful, and what reliefs were available. It held that although Section 42(1) of the Employment Act excuses procedural fairness during probation under Section 41, an employee on probation remains protected by Sections 43 and 45, which require the employer to prove valid and fair reasons. The employer failed to substantiate the alleged competency gaps: no minutes of the pivotal meeting were produced, the alleged inconsistencies were never identified, KPIs were not yet firm, and five weeks was too short to gauge performance. The termination was found substantively unfair. The court awarded a declaration of unfair termination, Kshs 900,000 notice pay, Kshs 1,800,000 compensatory damages (three months' gross salary) and Kshs 300,000 for ten days worked, totalling Kshs 3,000,000, with interest and costs against the 1st Respondent only. Judgment was entered against the 1st Respondent; no relief was granted against the 2nd Respondent.

Key legal issues

#
01

Whether termination during probation requires substantive justification

Holding

Yes - although Section 42(1) ousts the procedural fairness requirement of Section 41 during probation, Sections 43 and 45 still apply, requiring the employer to prove valid and fair reasons

Reasoning

The court relied on Monica Munira Kibuchi (on Section 42(1)) and precedents by Radido J and Makau J holding that the right not to be unfairly terminated under Section 45 survives probation. Only the right to procedural fairness under Section 41 is abrogated during probation; the obligation to justify the reason for termination applies equally to probationary contracts.

p. 7
02

Whether the employer proved a valid and fair reason related to compatibility

Holding

No - the reasons advanced (poor fit, inability to understand strategy) were not substantiated

Reasoning

The pivotal meeting of 9th August 2018 had no exhibited minutes; the alleged inconsistencies in the Leadership Forum Feedback document were never pointed out; KPIs were not yet firmed up; and the five-week service period was too short for objective assessment. The employer therefore failed to satisfy Sections 43(1) and 45(2)(a) and (b).

p. 9
03

What reliefs flow from a finding of substantive unfairness

Holding

Declaration of unfair termination, one month's notice pay, three months' compensatory damages, and unpaid salary for days worked in August 2018

Reasoning

Compensation of three months' gross salary was assessed having regard to the period served (one month and 10 days) and the circumstances attendant to the termination. Notice pay and salary for the 10 days worked in August 2018 were due because the respondents did not dispute that no payment was made.

p. 9

Legal principles established

#
  • An employee serving on probation is not strictly entitled to procedural fairness under Section 41 by virtue of Section 42(1) of the Employment Act, but remains protected from unfair termination under Sections 43 and 45
  • An employer must prove valid and fair reasons for terminating a probationary employee's employment under Sections 43(1) and 45(2)(a) and (b) of the Employment Act
  • A very short probationary period, without firm KPIs, is inadequate to objectively assess an employee's competence, and termination within it may be substantively unfair

Court orders

#
  1. 1.A declaration that the Claimant's termination from employment was unfair
  2. 2.One month's salary in lieu of notice of Kshs 900,000.00
  3. 3.Compensatory damages of Kshs 1,800,000.00 being three months' gross salary
  4. 4.Salary for 10 days worked in August 2018 of Kshs 300,000.00
  5. 5.Total award of Kshs 3,000,000.00
  6. 6.Interest on the total award at court rates from the date of Judgment until payment in full
  7. 7.Costs of the suit to the Claimant

Authorities

#

Legislation

  • Constitution of KenyaArticles 24, 25, 28, 41, 47, 48, 50, 159(2)(d)
  • Employment ActSections 35, 36, 41, 42(1), 43, 43(1), 44, 45, 45(1), 45(2)(a), 45(2)(b), 47(5)
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B

Cases cited (5)

  • Monica Munira Kibuchi & 6 others vs Mount Kenya University
    (2021) eKLR
  • Mercy Njoki Karingithi vs Emrald Hotels Resorts & Lodges Ltd
    [2014] eKLR
  • Happiness Nyabonyi Maingo vs Shreeji Chemicals Limited
    [2020] eKLR
  • Duncan Mbathi Mulevi vs Wanandege Co-operative Savings & Credit Society Limited
    (2018) eKLR
  • Fredrick Odhiambo vs Kenya Safari Lodges & Hotels Ltd
    (2015) eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act and the Constitution (Articles 41, 47, 48 cited); employment and labour relations dispute

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Munyua v Industrial Promotion Services (K) Limited & another (Cause 1358 of 2018) [2023] KEELRC 2429 (KLR)", Case Analysis (2023). Cause No 1358 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2429/eng@2023-10-06

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