Kibui v Kenya Orient Life Assurance Limited (Cause 422 of 2018) [2024] KEELRC 70 (KLR)
The bottom line
#A Kenyan court ruled that an employee whose six-month probation expired without formal extension is automatically confirmed, so dismissing them without a hearing is unfair.
What this practically means
#Executive summary
#Key legal issues
#Status of employment at date of dismissal
The Claimant's probationary contract had lapsed after 6 months; with no formal extension, she was deemed confirmed by operation of law
The contract provided for 6 months' probation extendable at the company's option. Section 42(2) of the Employment Act caps probation at 6 months, extendable only with the employee's agreement. The Respondent adduced no board resolution or letter extending probation, so by 6th September 2017 the probation had lapsed and the employee was deemed confirmed.
Substantive justification - poor performance
The Respondent failed to prove a valid and fair reason for termination
The BSC on record lacked dates, comments, agreed KPIs, and identified the Claimant as appraiser rather than appraisee. The employer provided no categorization of dismissal grounds and no performance evaluation signed by the supervisor. An employee cannot be appraised on targets never agreed, so the rating of 1.33 lacked context.
Procedural fairness
Termination was procedurally unfair as no hearing or show cause letter preceded dismissal
Section 41 prescribes a mandatory procedure before termination. The Respondent's witness admitted there were no show cause letters or hearings for probationary employees and no record of any meeting between the Claimant and her supervisor. The Claimant was never given an opportunity to confront the alleged poor performance or improve it.
Compensation quantum
Equivalent of 3 months' salary awarded under Section 49(1)(c)
The court considered the short duration of employment (about 7 months), that the Claimant did not appeal or express a wish to continue in employment, and that she contributed to the termination. These factors justified the equivalent of 3 months' gross salary as fair compensation.
Legal principles established
#- Where an employer fails to confirm an employee after probation, the employee is confirmed by operation of law
- An extension of probation must be formal and specify its duration
- Termination must be justified both substantively and procedurally
Court orders
#- 1.Declaration that termination of employment was unfair.
- 2.Award of the equivalent of 3 months' salary to the Claimant.
- 3.Costs of the suit to the Claimant.
- 4.Interest at court rates from the date of judgment until payment in full.
- Jurisdiction invoked
- Original jurisdiction under the Employment Act, 2007 (unfair termination claim)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kibui v Kenya Orient Life Assurance Limited (Cause 422 of 2018) [2024] KEELRC 70 (KLR)", Case Analysis (2024). Cause No 422 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/70/eng@2024-01-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.