Omariba v Isuzu East Africa Limited & another (Employment and Labour Relations Cause 868 of 2019) [2023] KEELRC 3376 (KLR)
The bottom line
#A Kenyan court ruled a probationary job can be rescinded over bad references, but employers who give false references can be sued for defamation.
What this practically means
#Executive summary
#Key legal issues
#Whether termination of the Claimant's probationary employment was unfair
The termination was fair and lawful; the offer was conditional on satisfactory references and the law at the time (pre-Monica Munira Kibuchi) exempted probationary contracts from the Section 41 hearing requirements
The offer of employment was expressly subject to satisfactory references, and the termination letter cited an unsatisfactory background report sourced from the 2nd Respondent. At the material time Section 42(1) exempted probationary contracts from Section 41 procedural requirements. Requiring the 1st Respondent to hold a disciplinary hearing over second-hand information it could not verify would impose an onerous burden. The Claimant was informed of the outcome of the background checks, and the court applied the transitional reasoning in Monica Munira Kibuchi.
Whether the 2nd Respondent's letter dated 6th June 2019 was defamatory
Yes - the statements were defamatory, false, referred to the Claimant by name and were published to a third party without any factual basis
The letter alleged loss of tyres, cover-up using cash-back funds and irregular sale of oil under the Claimant's watch, portraying him as unreliable, corrupt and dishonest. The four elements in John Ward v Standard Ltd were satisfied: the words were defamatory in their natural meaning, referred to the Claimant by name, and were published to the 1st Respondent before the Claimant could respond. The 2nd Respondent failed to produce the investigation report, disciplinary minutes or any catalogue of accusations, so it did not prove the truth of the statements.
Whether the 2nd Respondent's Notice of Claim (breach of confidentiality) is enforceable
Not enforceable; the 2nd Respondent gave the information knowing it would be relied upon and owed a duty to ensure it was factually justified
The 1st Respondent requested the reference in confidence and divulged it only to the Claimant, so no breach of confidentiality arose. Conversely, the 2nd Respondent could not enforce a claim since it volunteered information for decision-making purposes and had a duty not to misrepresent facts. The Claimant's lack of evidence of reputational injury and continued employment in the industry only went to mitigation, as libel is actionable per se.
Quantum of damages for defamation
Kshs.200,000/= general damages awarded against the 2nd Respondent
The authorities relied on by the Claimant involved wide media or public publications to internationally known politicians. Here publication was to one person only, the Claimant adduced no evidence of his standing or reputational loss, and he secured a job in the same industry. The gravity of the libel was minor, justifying a modest award under the restitutio in integrum principles in Johnson Evan Gicheru v Andrew Morton.
Legal principles established
#- An employer relying on an unfavourable reference from a third party to terminate a probationary contract, pursuant to a condition precedent in the offer of employment, need not subject the employee to a full Section 41 disciplinary hearing where it had no access to the primary documents
- A writer of a reference letter bears responsibility for ensuring that the information imparted to a prospective employer has a factual basis; unsubstantiated statements impugning honesty are defamatory
- In assessing defamation damages, the extent of publication matters; libel remains actionable per se but a publication to a single recipient warrants a lower award than media or public publication
Court orders
#- 1.Claim for compensation for unfair termination against the 1st Respondent dismissed
- 2.Judgment entered for the Claimant against the 2nd Respondent in defamation, general damages of Kshs.200,000/= awarded
- 3.The 2nd Respondent's Notice of Claim declared not enforceable
- 4.Judgment entered for the Claimant against the 2nd Respondent with costs
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment and Labour Relations Court Act and the Employment Act, 2007 (unfair termination and defamation arising from the employment relationship)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Omariba v Isuzu East Africa Limited & another (Employment and Labour Relations Cause 868 of 2019) [2023] KEELRC 3376 (KLR)", Case Analysis (2023). Nairobi ELRC Cause No. 868 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/3376/eng@2023-12-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.