Odenyo v National Gender & Equality Commission (Cause E6451 of 2020) [2024] KEELRC 1231 (KLR)
The bottom line
#Kenya's Employment Court confirmed that probation cannot be extended without the employee's written agreement, and firing without a hearing becomes automatically unfair.
What this practically means
#Executive summary
#Key legal issues
#Whether the purported extension of probation was lawful
The purported 3-month extension was unlawful; the Claimant had not agreed to it and it fell outside the statutory window under section 42, so the contract automatically took effect.
Section 42(2) permits extension of a probationary period of six months by a further period of not more than six months only with the agreement of the employee, and section 42(3) bars employment under a probationary contract beyond the aggregate period. The contract itself made no provision for extension. The Claimant never agreed to the extension, and the purported extension was made after the initial six-month window, so the probation could not lawfully be extended and the contract was automatically confirmed.
Whether the termination was unfair and unlawful
Yes. Since the contract had taken effect, the Respondent was obliged to follow section 41 before terminating on grounds of poor performance; failing that, the termination was unfair and unlawful.
Poor performance is a ground for hearing under section 41(1) and (2) of the Employment Act. The Claimant was dismissed following a show cause and discussions at Commission meetings without being heard. The Respondent's failure to lawfully extend probation meant the protective procedures of section 41 applied, and its non-adherence rendered the termination ipso facto unfair and unlawful, breaching the Claimant's rights and the rules of natural justice.
What remedies lie for the Claimant
Declaration of unfair and unlawful termination, 5 months' salary as compensation (Kshs. 900,000), interest, a certificate of service and costs; medical-injury and separate violation damages refused.
Under section 49 of the Employment Act the court may award compensation. The Claimant did not establish entitlement to the maximum award of 12 months' salary, having served slightly over one year and remaining capable of alternative employment. The trauma claim could not be pinned on the Respondent absent corroborating medical evidence linking it to the termination, so general damages for medical injury were declined.
Legal principles established
#- A probationary contract that does not accord with section 42 of the Employment Act is manifestly unlawful; where probation is not lawfully extended with the employee's agreement within the statutory window, the employment contract automatically takes effect.
- Where an employer fails to lawfully extend probation, it must conduct a hearing under section 41 of the Employment Act before termination; termination without hearing is ipso facto unfair and unlawful.
Court orders
#- 1.A declaration that the termination of the Claimant's services was unfair and unlawful
- 2.An award of 5 months compensation for the unfair termination – Kshs. 900,000/-
- 3.Interest at court rates on the sum of Kshs. 900,000/- from the date of judgment till payment in full
- 4.A certificate of service
- 5.Costs of the suit
- Jurisdiction invoked
- Articles 59(1) & (4) and 248(2)(a) of the Constitution of Kenya, 2010 and the National Gender and Equality Commission Act, 2011; Employment and Labour Relations Court jurisdiction under the Employment Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Odenyo v National Gender & Equality Commission (Cause E6451 of 2020) [2024] KEELRC 1231 (KLR)", Case Analysis (2024). Cause No E6451 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1231/eng@2024-03-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.