Kibe v Kibo Africa Limited (Cause E107 of 2023) [2023] KEELRC 3322 (KLR)
The bottom line
#Kenya's Employment Court confirmed that a probation ends by law after three months unless both employer and employee agree in writing to extend it.
What this practically means
#Executive summary
#Key legal issues
#Whether the Claimant's probation was validly extended
The purported extension was not proved; there was no evidence of mutuality as required by Section 42(2), so the Claimant was confirmed by operation of law upon lapse of the 3-month probation
Section 42(2) requires an extension of probation to be agreed with the employee. Although the termination letter asserted an extension had been recommended and acknowledged, no evidence showed the Claimant agreed in terms of the section. The contract clause itself required written notification of any extension, which was absent. Following Oloo and Onaya-Odeck, the lapse inured to the employee's benefit and employment was confirmed by operation of law.
Whether the termination was substantively fair
No - the Respondent failed to prove a valid and fair reason; performance assessment was not objective as no targets were set, and the allegations of poor performance and poor communication were general and unsubstantiated
The employer produced no evidence of set targets or deliverables against which performance could objectively be measured. The line manager's assessment was too general and was not backed by evidence. No measures to address any alleged underperformance were shown, and the poor communication allegation lacked particulars. The Respondent thus failed its evidentiary burden under Sections 43 and 45(2)(a) and (b).
Whether the termination was procedurally fair
No - the Claimant was not notified of the intended termination or given an opportunity to make representations as required by Section 41
Section 41 requires an employer to notify an employee of the intended termination, the reasons thereof, and accord a hearing. There was no evidence the Claimant was heard before the decision to dismiss. Following Jane Samba Mukala, an employee facing termination for poor performance must be called and allowed to defend themselves or address weaknesses. Non-compliance rendered the termination procedurally unfair and unlawful.
Reliefs entitlement
One month's salary in lieu of notice and three months' gross salary as compensatory damages, plus costs, interest and a certificate of service
Having found the termination substantively and procedurally unfair, the court exercised discretion under the Employment Act to award notice pay and compensatory damages, factoring in the short length of the employment relationship and the circumstances of termination, and directed issuance of a certificate of service under Section 51(1).
Legal principles established
#- An extension of a probationary period must be mutually agreed upon by both the employer and the employee under Section 42(2) of the Employment Act
- Where a probationary period lapses without extension agreed with the employee, the employee is confirmed by operation of law
- An employer bears the evidentiary burden of proving both substantive fairness (valid reason) and procedural fairness for a termination
Court orders
#- 1.A declaration that the Claimant's summary dismissal from employment was unfair and unlawful
- 2.Award of Kshs 130,000.00 being one (1) month's salary in lieu of notice
- 3.Award of compensatory damages of Kshs 390,000.00 being equivalent to three (3) months of gross salary
- 4.Total award of Kshs 520,000.00
- 5.Interest at court rates from the date of Judgment until payment in full
- 6.Costs of the suit to the Claimant
- 7.Certificate of service to issue within 30 days of the judgment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment and labour relations disputes (Employment Act 2007)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kibe v Kibo Africa Limited (Cause E107 of 2023) [2023] KEELRC 3322 (KLR)", Case Analysis (2023). Memorandum of Claim filed 14th February 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/3322/eng@2023-12-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.