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ELRCPartially AllowedCause No E6451 of 2020· [2024] KEELRC 1231 (KLR)

Odenyo v National Gender & Equality Commission (Cause E6451 of 2020) [2024] KEELRC 1231 (KLR)

Employment and Labour Relations Court
7 March 2024
4,279 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The Claimant, employed as an Internal Auditor by the National Gender and Equality Commission on a five-year contract signed on 16th May 2017 with a six-month probation, was terminated by letter dated 5th October 2018 on grounds of unsatisfactory performance after a show cause notice on an unrelated ground. He sued claiming unfair, unlawful and unconstitutional dismissal and violation of his rights to fair administrative action, access to information, fair hearing and legitimate expectation, and sought declarations, damages including for medical injury, a letter of service, costs and interest. The Respondent contended his probation was extended for three months and that it simply declined to confirm him for failing to submit his rated performance appraisal, that probationary employees under section 42(1) of the Employment Act need not be taken through section 41 procedures, and that final dues were paid. The court distilled five issues and held that any probationary contract not according with section 42 of the Employment Act is manifestly unlawful; since the purported extension was without the Claimant's agreement and outside the statutory window, his contract automatically took effect. The Respondent was consequently required to conduct a section 41 hearing before termination on grounds of poor performance; failing that, the termination was ipso facto unfair and unlawful, breaching natural justice. The court declined damages for medical injury for want of proof of a direct nexus, and limited compensation to five months' salary as maximum compensation was not made out. Judgment was entered for the Claimant with a declaration of unfair and unlawful termination, Kshs. 900,000 as five months' compensation, interest, a certificate of service and costs.

Key legal issues

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01

Whether the purported extension of probation was lawful

Holding

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.

Reasoning

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.

p. 7
02

Whether the termination was unfair and unlawful

Holding

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.

Reasoning

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.

p. 7
03

What remedies lie for the Claimant

Holding

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.

Reasoning

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.

p. 7

Legal principles established

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  • 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

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  1. 1.A declaration that the termination of the Claimant's services was unfair and unlawful
  2. 2.An award of 5 months compensation for the unfair termination – Kshs. 900,000/-
  3. 3.Interest at court rates on the sum of Kshs. 900,000/- from the date of judgment till payment in full
  4. 4.A certificate of service
  5. 5.Costs of the suit

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 59(1) & (4)
  • Constitution of Kenya, 2010Article 248(2)(a)
  • Constitution of Kenya, 2010Article 25(c)
  • National Gender and Equality Commission Act2011 (generally)
  • Employment ActSection 41(1) and (2)
  • Employment ActSection 42(1), (2) and (3)
  • Employment ActSection 43
  • Employment ActSection 45
  • Employment ActSection 49(1)(c)

Cases cited (5)

  • Kenya Broadcasting Corporation v Geoffrey Wakio
    [2019] eKLR
  • Ol Pejeta Ranching Limited v David Wanjau Muhoro
    [2017] eKLR
  • John Atelu Omilia & another v Attorney General & 4 others
    [2017] eKLR
  • M W K & another v Attorney General & 4 others
    [2017] eKLR
  • Anytime Limited v Fredrick Mutobera Omuraya
    [2022] eKLR
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

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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, "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.