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ELRCPartially AllowedMemorandum of Claim dated 6th July, 2018· [2024] KEELRC 452 (KLR)

Mwithali v One Residence Limited (Cause 1154 of 2018) [2024] KEELRC 452 (KLR)

Employment and Labour Relations Court
21 February 2024
1,429 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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Kenyan employers cannot fire probationary employees without a fair hearing and valid reasons, following the Munira Kibuchi ruling.

What this practically means

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Executive summary

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The claimant was recruited in March 2018 as Finance and Administration Manager and reported on 16th April 2018. He was twice left in charge of the company's operations during the CEO's business trips without complaint. After submitting the May 2018 payroll, his salary was withheld pending payment of June rent by tenants, even though rent was due by 5th June. On 5th June 2018 he was summoned by the CEO and his employment terminated without reason or a hearing. He claimed unfair, unlawful termination, seeking a declaration and twelve months' gross salary (Kshs.2,160,000.00) as compensation, costs and interest. The Respondent denied the claim, relying on Section 42(1) of the Employment Act, which excludes notification and hearing requirements for probationary contracts, and invoked the declaration of unconstitutionality of that provision in Monica Munira Kibuchi & 6 others v Mount Kenya University, arguing it should not apply retrospectively where an employer honestly believed in the law as enacted. The court framed three issues: whether the termination was wrongful, unfair and lawful; entitlement to relief; and costs. Applying Munira Kibuchi, the court held the principles of Section 42 apply even to probationary terminations and that the honest-belief exemption was the Respondent's burden to prove in evidence, which it failed to discharge. The claim was allowed: one month's salary in lieu of notice (Kshs.180,000.00) and six months' salary (Kshs.1,080,000.00), totalling Kshs.1,260,000.00, with costs to the claimant. Notably, the judgment contains an internal contradiction, stating a finding of 'lawful' termination while allowing the claim.

Key legal issues

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01

Whether termination of a probationary employee without hearing or valid reasons was unfair

Holding

The claimant succeeded; the Respondent could not rely on Section 42(1) of the Employment Act because it was declared unconstitutional in Monica Munira Kibuchi, and the honest-belief exemption from retroactive application had to be proved by the employer, which it failed to do

Reasoning

The claimant relied on Sections 42, 43 and 45 of the Employment Act for substantive and procedural fairness. The Respondent relied on Section 42(1), which excludes notification and hearing for probationary contracts, but that provision was declared unconstitutional in Monica Munira Kibuchi & 6 others v Mount Kenya University. The court held that the exemption for employers who honestly believed in the old law was the Respondent's onus to establish in evidence, which was not met, and the Section 42 principles applied even to probation.

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02

Whether the claimant is entitled to the relief sought

Holding

The court found the claimant entitled to relief, awarding one month's notice pay and six months' salary as compensation

Reasoning

Having succeeded on the unlawful termination issue, the claimant was held entitled to relief. The court exercised its discretion to award one month's salary in lieu of notice (Kshs.180,000.00) and six months' salary (Kshs.1,080,000.00), a total of Kshs.1,260,000.00, instead of the twelve months' gross salary claimed, with costs to the claimant.

p. 4

Legal principles established

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  • Even in a probationary termination, the principles of Section 42 of the Employment Act apply following the declaration of unconstitutionality of Section 42(1) in Monica Munira Kibuchi, and the employer bears the evidential onus of establishing the honest-belief exemption

Court orders

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  1. 1.One (1) month's salary in lieu of notice of Kshs.180,000.00
  2. 2.Six (6) months' salary as compensation of Kshs.1,080,000.00
  3. 3.Total award of Kshs.1,260,000.00 to the Claimant
  4. 4.Costs of the claim to be borne by the Respondent

Authorities

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Legislation

  • Employment ActSections 41, 42, 42(1), 43, 45
  • Employment Act, 2007Section 42

Cases cited (1)

  • Monica Munira Kibuchi & 6 others v Mount Kenya University; Attorney General (Interested Party)
    [2021] eKLR
Jurisdiction invoked
First-instance jurisdiction under the Employment and Labour Relations Court Act over disputes arising from employment (claim for unfair, unlawful termination under the Employment Act, 2007)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Mwithali v One Residence Limited (Cause 1154 of 2018) [2024] KEELRC 452 (KLR)", Case Analysis (2024). Memorandum of Claim dated 6th July, 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/452/eng@2024-02-21

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