Mwithali v One Residence Limited (Cause 1154 of 2018) [2024] KEELRC 452 (KLR)
The bottom line
#Kenyan employers cannot fire probationary employees without a fair hearing and valid reasons, following the Munira Kibuchi ruling.
What this practically means
#Executive summary
#Key legal issues
#Whether termination of a probationary employee without hearing or valid reasons was unfair
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
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.
Whether the claimant is entitled to the relief sought
The court found the claimant entitled to relief, awarding one month's notice pay and six months' salary as compensation
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.
Legal principles established
#- 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
#- 1.One (1) month's salary in lieu of notice of Kshs.180,000.00
- 2.Six (6) months' salary as compensation of Kshs.1,080,000.00
- 3.Total award of Kshs.1,260,000.00 to the Claimant
- 4.Costs of the claim to be borne by the Respondent
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.