Kenya Building Construction Timber Furniture Industries Employees Union v Aegis Construction Ltd (Employment and Labour Relations Cause E704 of 2020) [2024] KEELRC 1206 (KLR)
The bottom line
#Kenya's Employment Court ruled that even probationary employees can only be dismissed for valid, proven reasons, and awarded three workers compensation plus costs.
What this practically means
#Executive summary
#Key legal issues
#Whether the Grievants were under probation at the time of termination
1st and 3rd Grievants were no longer on probation as the Respondent failed to prove valid executed contracts or a validly agreed extension; the 4th Grievant was still on probation
The letters of appointment relied on were unexecuted and could not be authenticated as legally binding. Section 42(2) of the Employment Act caps probation at six months but permits extension of up to six further months only with the employee's agreement. The Respondent alleged only verbal agreement to extension, which it could not prove. The court therefore presumed the 1st and 3rd Grievants' employment had been confirmed upon expiry of probation; the 4th Grievant, employed later, was still on probation.
Whether the terminations were lawful and fair
Termination of all three Grievants was procedurally and substantively unfair
Relying on Walter Onuro Ogal v Teachers Service Commission, the court held that termination must satisfy both substantive justification and procedural fairness. The Respondent failed to prove reasons for termination under sections 43 and 45 and did not comply with section 41. Even for the 4th Grievant, still on probation, the court applied Okumu v Good Man Agencies, holding sections 43 and 45 apply to probationers, so the Respondent still had to justify the termination with valid reasons.
Res judicata regarding the 2nd Grievant
The 2nd Grievant's claim was settled and withdrawn, so his case was marked as settled
It was not disputed that Elijah Kathurima's case had been heard and determined in Meru Chief Magistrate's ELRC Cause No. 24 of 2019 and the decretal sum fully settled. The case had been withdrawn by the Claimant union and the court marked it settled.
Legal principles established
#- The fairness of termination requires both substantive justification and procedural fairness
- Sections 43 and 45 of the Employment Act remain applicable to employees on probation; only procedural fairness under section 41 is abrogated
- An employer is bound to give reasons for termination of a probationary employee's employment and justify the same
- A probationary period may only be extended beyond six months with the employee's agreement, which must be proved
Court orders
#- 1.Award to Jason Mawira of Kshs 100,000 (one month salary in lieu of notice Kshs 25,000; one month leave Kshs 25,000; two months' compensation for unlawful termination Kshs 50,000) plus interest at court rates from date of judgment until full payment
- 2.Award to Antony Kimathi of Kshs 68,000 (one month salary in lieu of notice Kshs 17,000; one month leave payment Kshs 17,000; two months' compensation for unlawful termination Kshs 34,000) plus interest at court rates from date of judgment until full payment
- 3.Award to Johana Mwenda of Kshs 116,000 (one month salary in lieu of notice Kshs 29,000; one month leave Kshs 29,000; two months' compensation for unlawful termination Kshs 58,000) plus interest at court rates from date of judgment until full payment
- 4.Costs awarded to the grievants
- 5.2nd Grievant (Elijah Kathurima)'s case marked as settled, having been determined in Meru CM ELRC Cause No. 24 of 2019 and the decretal sum fully settled
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment and Labour Relations Act (claim of unfair termination filed as Memorandum of Claim)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Oduor v Umba Technology Limited (Cause E382 of 2023) [2025] KEELRC 1005 (KLR)[2025] KEELRC 1005 (KLR)28 Mar 2025
Cite this brief
#Cite this brief
Caselaw, "Kenya Building Construction Timber Furniture Industries Employees Union v Aegis Construction Ltd (Employment and Labour Relations Cause E704 of 2020) [2024] KEELRC 1206 (KLR)", Case Analysis (2024). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1206/eng@2024-05-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.