Wambui v Borderless Tracking Limited (Cause 539 of 2019) [2023] KEELRC 3130 (KLR)
The bottom line
#Kenyan employers must follow fair procedures—even during probation—after the ELRC awarded a dismissed probationer three months' salary plus costs.
What this practically means
#Executive summary
#Key legal issues
#Whether termination of a probationary employee for non-performance without due process was unfair and unlawful
Yes. The probationary status did not exempt the employer from the procedural fairness requirements; termination without notice to show cause, hearing or opportunity to be accompanied was unfair and unlawful.
The court reasoned that the exemption in section 42(1) of the Employment Act has been overtaken by events and is bad law. Section 41 protections now apply at all stages of employment including probation. The Claimant was never accorded due process: no notice to show cause, no disciplinary hearing, no opportunity to be heard with an employee of her choice or union official. The Respondent also produced no evidence of any performance evaluation establishing substandard performance. The Claimant's case therefore overwhelmed that of the Respondent.
What relief follows from a finding of unlawful termination during probation
The Claimant was entitled to one month's salary in lieu of notice and two months' salary as compensation for the unlawful termination.
Having succeeded on the claim of unlawful termination, the court found the Claimant entitled to relief. It granted a declaration of unfair and unlawful termination, one month's notice pay of Kshs.90,000 and the equivalent of two months' gross salary, Kshs.180,000, as compensation, totalling Kshs.270,000, together with costs against the Respondent.
Legal principles established
#- Termination during probation must still meet the legal threshold for lawful termination; section 42(1) exemption from section 41 procedures is no longer good law.
- Termination without notice to show cause, disciplinary hearing or opportunity to be heard is unfair and unlawful.
Court orders
#- 1.A declaration that the termination of the employment of the Claimant by the Respondent during probation amounted to unfair and unlawful termination of employment.
- 2.One (1) month salary in lieu of notice of Kshs.90,000.00.
- 3.Two (2) months salary for unlawful termination of employment of Kshs.180,000.00, total award Kshs.270,000.00.
- 4.The costs of this cause to be borne by the Respondent.
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (first-instance Memorandum of Claim)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Wambui v Borderless Tracking Limited (Cause 539 of 2019) [2023] KEELRC 3130 (KLR)", Case Analysis (2023). Memorandum of Claim dated 5th August 2019 (ELRC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/3130/eng@2023-11-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.