Saka v Absa Bank Kenya PLC (Cause E383 of 2023) [2024] KEELRC 1089 (KLR)
The bottom line
#A Kenyan court awarded a former Absa manager Kshs 6.56 million because the bank missed its own deadline to extend his probation, making his dismissal unlawful.
What this practically means
#Executive summary
#Key legal issues
#Whether the Claimant was on a probationary contract at the time of termination
The six-month probation expired on 17th December 2019 and the purported extension of 9th January 2020 came too late; the contract was confirmed by effluxion of time, so the purported termination of a probationary contract was of a contract that did not exist
The employment letter executed on 17th June 2019 provided for six months' probation extendable by three months. Probation would therefore have run until 17th December 2019. The Respondent only purported to extend the probation on 9th January 2020, after the probationary period had lapsed. Having failed to act within the contractual window, the Respondent could not thereafter treat the Claimant as a probationer, and termination on 3rd March 2020 of a purported probationary contract was unfair and unlawful under the Employment Act.
Whether the Claimant was equipped to perform his duties and whether poor performance justified termination
The Claimant was handicapped from the onset because the Respondent never provided him with a laptop or system access despite a trail of email requests
An internal email of 28th February 2020 from Ms Sarah Muriuki detailed requests for MacBook Pro and MacBook Air laptops and conceded the Claimant had only been given a desk, telephone extension, notebook, pen and staff pass, with no mention of a computer. There was no indication laptops were ever acquired. The Respondent's own manager observed the Claimant took longer to fit in owing to the structure of his previous roles. The Claimant was therefore not supplied the tools needed to meet the performance expectations the Respondent relied on.
What remedies flow from the unfair and unlawful termination
Compensation of 8 months' salary under section 49 of the Employment Act was awarded; aggravated and exemplary damages were refused due to mitigation; leave was refused as already paid
Given the egregious manner of termination without proper basis, the court exercised discretion under section 49 to award 8 months' gross salary (Kshs. 6,560,000/-). Aggravated and exemplary constitutional damages were denied because the Claimant mitigated his losses by securing new employment. The leave claim failed as terminal dues for untaken leave had already been paid, and the declaration on unfairness was granted with costs and interest.
Legal principles established
#- Where an employer fails to extend a probationary contract within the contractual timeframe, the contract is confirmed by effluxion of time and termination must thereafter comply with the Employment Act
- Terminating a probationary contract that no longer exists because it was confirmed by effluxion of time is unfair and unlawful
Court orders
#- 1.A declaration that the termination of the Claimant's services by the Respondent was unfair and unlawful
- 2.Kshs. 6,560,000/- as compensation
- 3.Costs of the suit
- 4.Interest at court rates on the compensation sum from the date of judgment till payment in full
- Jurisdiction invoked
- First-instance employment claim under the Employment Act, 2007 and Articles 10, 25, 27 and 41 of the Constitution of Kenya, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Saka v Absa Bank Kenya PLC (Cause E383 of 2023) [2024] KEELRC 1089 (KLR)", Case Analysis (2024). Cause (number not stated in judgment as provided). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1089/eng@2024-04-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.