Wanjohi v Kenya Railways Corporation (Cause E398 of 2022) [2024] KEELRC 417 (KLR)
The bottom line
#A Kenyan employee whose probation ends without employer confirmation is automatically confirmed, and firing him without a hearing is unfair.
What this practically means
#Executive summary
#Key legal issues
#Status of employment after lapse of probationary period
The Claimant was confirmed by operation of law upon expiry of the 6-month probation, as the Respondent neither extended probation by agreement nor communicated with him
Probation began on 2nd January 2020 and was to end on 2nd July 2020. Clause 5 of the contract made no provision for extension. The Respondent's last communication was the letter of 24th June 2020, and termination came about one month and 12 days after probation lapsed. Following David Nyamu Kariuki and Peris Nyambura, the court held the employee was deemed confirmed by effluxion of time and had transitioned from probation to permanent employment.
Procedural and substantive fairness of termination
Termination of a confirmed employee without notice to show cause, hearing, or proof of poor performance was unfair and unlawful
Having been confirmed by operation of law, the Claimant was entitled to protection of Sections 41 and 45 of the Employment Act. The Respondent adduced no evidence of agreed targets, a performance management system, a Performance Improvement Plan, or support extended, and no hearing was afforded. The supervisor was the accuser, yet no opportunity was given to respond or cross-examine. The termination was therefore both substantively unjustified and procedurally unfair.
Reliefs
Declaration granted, one month's notice pay (if unpaid) and equivalent of 2 months' salary as compensation; accrued leave and aggravated damages claims declined
Compensation under Section 49(1)(c) was reduced to 2 months' salary considering the short employment of about 7 months, the Claimant's failure to appeal or express a wish to remain, and his contribution to the termination. The leave claim lacked particulars and aggravated damages lacked evidential support.
Legal principles established
#- Where a probationary period lapses without extension by consent and without communication from the employer, the employee is deemed confirmed by operation of law
- An employer alleging poor performance bears the burden of proving it, including demonstration of performance standards, support and reviews
Court orders
#- 1.Declaration that termination of the Claimant's employment was unfair
- 2.One month's salary in lieu of notice, if unpaid
- 3.Equivalent of 2 months' salary as compensation
- 4.Costs of the suit
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 over unfair termination claim
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Wanjohi v Kenya Railways Corporation (Cause E398 of 2022) [2024] KEELRC 417 (KLR)", Case Analysis (2024). Cause No E398 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/417/eng@2024-02-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.