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ELRCDismissedCause No E708 of 2020· [2024] KEELRC 253 (KLR)

Jelimo v Institute of Human Resource Management (Cause E708 of 2020) [2024] KEELRC 253 (KLR)

Employment and Labour Relations Court
16 February 2024
BOByram Ongaya
2,989 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employment court confirmed employers can end probationary contracts based on the written contract alone, without formal disciplinary processes.

What this practically means

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Executive summary

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The claimant, engaged on 15.07.2020 as Head of Human Resources and Membership Services on a three-month probation, was notified on 23.10.2020 that her appointment would not be confirmed following a performance review and a decision by the respondent's HR and Finance Committee ratified by the full council. She sued seeking declarations that the non-confirmation and her placement on indefinite leave were unfair labour practices and discriminatory, damages, confirmation of employment, an injunction, notice pay, 12 months' compensation, probation-period salary and leave pay. The respondent contended that the relationship was governed by the contract containing the probationary clause, that performance was assessed as below expectations on five areas with documented incidents of misconduct and insubordination, and that public service manuals did not apply to its employees. The court held that the claimant was bound by the clear contract and its probationary clause; the manuals were not incorporated and did not apply; the respondent established fair reasons and a fair procedure under sections 45, 42(1) and 41(1) of the Employment Act, no elaborate disciplinary process being required for probationary service; and the claimant fully contributed to her termination. The discrimination claim failed for want of a comparator and no Article 27 ground was established. Judgment was entered for the respondent dismissing the suit, with each party bearing own costs. Delivered by Byram Ongaya, Principal Judge, on 16 February 2024.

Key legal issues

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01

Applicability of public service manuals to the contract

Holding

The Public Service Commission manuals and policies did not apply to the claimant's contract

Reasoning

The relationship was governed solely by the executed contract of service. The claimant failed to show the May 2016 manual was incorporated into her contract, and although the respondent was a statutory creature, the elaborate contract bound her to the probationary clause.

p. 6
02

Fairness of non-confirmation during probation

Holding

The respondent established fair reasons and a fair procedure under sections 45, 42(1) and 41(1) of the Employment Act

Reasoning

The respondent showed valid reasons for non-confirmation following performance assessment. No elaborate disciplinary process was required for probationary service, and the court found no arbitrariness or unfairness, holding the claimant contributed to her own termination.

p. 6
03

Discrimination

Holding

Discrimination under Article 27 was not established

Reasoning

The claimant's case was not similar to that of the other officers she cited; the decision not to confirm her was occasioned by circumstances personal to her, and no Article 27 ground of discrimination was established.

p. 6

Legal principles established

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  • A probationary employee is bound by the probationary clause of a clear contract of service, and manuals not incorporated into the contract do not govern the relationship
  • Termination during probation does not require an elaborate disciplinary procedure, though justice, fairness and proportionality still apply
  • A discrimination claim fails without a comparator

Court orders

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  1. 1.Judgment entered for the respondent against the claimant for dismissal of the suit
  2. 2.Each party to bear own costs of the proceedings

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 27, 41
  • Employment Act, 2007sections 5, 10(5), 41(1), 42(1), 45
  • Public Service Commission Act, 2017section 41(6)
  • Human Resource Management Professionals Act, No. 52 of 2012section 9
  • Institute of Human Resource Management Human Resources Manual (revised edition), 2013sections 1.7, 2.5.10, 4.6, 4.7, 4.8(b), 10.3.2
  • Public Service Commission Human Resources Procedures Manual, 2016section B16
  • Mwongozo Code (corporate code of governance of state corporations)not specified
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (first-instance employment claim)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Jelimo v Institute of Human Resource Management (Cause E708 of 2020) [2024] KEELRC 253 (KLR)", Case Analysis (2024). Cause No E708 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/253/eng@2024-02-16

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.