Munyua v Industrial Promotion Services (K) Limited & another (Cause 1358 of 2018) [2023] KEELRC 2429 (KLR)
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
#Key legal issues
#Whether termination during probation requires substantive justification
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
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.
Whether the employer proved a valid and fair reason related to compatibility
No - the reasons advanced (poor fit, inability to understand strategy) were not substantiated
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).
What reliefs flow from a finding of substantive unfairness
Declaration of unfair termination, one month's notice pay, three months' compensatory damages, and unpaid salary for days worked in August 2018
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.
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.A declaration that the Claimant's termination from employment was unfair
- 2.One month's salary in lieu of notice of Kshs 900,000.00
- 3.Compensatory damages of Kshs 1,800,000.00 being three months' gross salary
- 4.Salary for 10 days worked in August 2018 of Kshs 300,000.00
- 5.Total award of Kshs 3,000,000.00
- 6.Interest on the total award at court rates from the date of Judgment until payment in full
- 7.Costs of the suit to the Claimant
- 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.