Wachiuri v Kaisugu Limited (Employment and Labour Relations Cause E010 of 2023) [2024] KEELRC 1949 (KLR)
The bottom line
#A Kenyan court ruled that even probationary employees must be given a fair hearing before dismissal, awarding the ex-employee eight months' salary.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Respondent's termination of the Claimant's services was fair and justified
- 2.Whether the Claimant is entitled to the remedies sought
Key legal issues
#Whether termination of a probationary employee requires procedural fairness under section 41 of the Employment Act
Yes; the declaration in Monica Munira that section 42(1) is unconstitutional to the extent it excludes probationary employees from section 41 means probationary employees enjoy procedural fairness.
The court accepted the claimant's reliance on Monica Munira and Francis Kibugi, holding that probation does not exempt an employer from the requirement of a hearing. The Respondent conceded the section 42 declaration could not be relied upon. Email exchanges and meetings did not constitute a hearing because none asked the claimant to exonerate herself over poor performance, and no show cause letter or disciplinary hearing was conducted.
Whether the Respondent had valid and fair reasons for the termination
No; no reasons were stated in the termination letter and no appraisal reports or performance records were produced, so the reasons could not be proved under section 43.
The witnesses gave contradictory evidence on whether appraisals were weekly, monthly or every three months, and none of the appraisal reports were produced in court. The MD admitted there was no substantive report and no show cause letter. Under section 43 the employer must prove the reasons for termination; failure renders the termination unfair under section 45.
Whether the claimant was entitled to compensation for unfair termination
Yes; compensation equivalent to eight months' salary was awarded under the remedies for unfair termination.
Having found both substantive and procedural unfairness, the court granted compensation. Although the claimant sought 12 months' pay, the court exercised discretion and awarded 8 months' salary computed on the figures in her pay slip, less statutory deductions, plus costs and interest.
Whether the sexual harassment claim was proved
The court noted the Respondent admitted the complaint was made but never demonstrated how it was resolved; no damages for sexual harassment were awarded, that head not having been pleaded.
The court recorded that the Respondent admitted receipt of the sexual harassment complaint of 28th March 2022 and that the Respondent did not demonstrate how the issue was resolved. However, the damages claim for sexual harassment had not been pleaded in the memorandum of claim and was raised only in submissions, so no award was made under that head.
Legal principles established
#- An employee on probation is still entitled to procedural fairness under section 41 of the Employment Act before termination.
- Where the employer does not state the reasons for termination in the termination letter, the court cannot assess the validity of those reasons and the termination is unfair under sections 43 and 45.
Court orders
#- 1.Compensation for unlawful termination awarded for 8 months' salary = 8 x 224,482/= as per her pay slip = 1,795,856/= less statutory deductions
- 2.The Respondent to pay costs of the suit plus interest at court rates with effect from the date of the judgment
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (termination of employment claim)
Relief refused
#General damages for sexual harassment (Kshs 4,000,000 proposed in submissions)
The claim was not pleaded in the memorandum of claim and only surfaced at submissions stage; the final orders make no award under this head.
Twelve months' gross pay compensation (Kshs 967,704 as claimed)
The court awarded 8 months' salary instead of the 12 months claimed.
Costs
The Respondent will pay costs of this suit plus interest at court rates with effect from the date of this judgment.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
It matters not that the employee is on probation; procedural fairness is still a requirement before termination.
Given the lack of a fair hearing procedure for the Claimant and without demonstration that valid reasons existed to warrant the Claimant's termination, I find that the termination of the Claimant was unfair and unjustified.
I have looked at the email exchanges and notice that none asked the Claimant to exonerate herself for poor performance.
Compensation for unlawful termination awarded for 8 months' salary = 8 x 224,482/= as per her pay slip = 1,795,856/= Less statutory deductions.
The Respondent will pay costs of this suit plus interest at court rates with effect from the date of this judgment.
Issues in the judgment
#Duplicated and inconsistent paragraph numbering: paragraphs 58 and 59 appear twice, and the remedies section is numbered 78 immediately after paragraph 72.
The compensation figure used in the final orders (224,482/= per month) is unexplained and conflicts with the claimant's pleaded net salary of Kshs 80,642 per month; 8 x 224,482 is also stated as 1,795,856, which is arithmetically incorrect (8 x 224,482 = 1,795,856 is correct, but the basis of 224,482 is unexplained while the claim tabulated Kshs 80,642 net per month).
Internal date contradiction: the judgment states the claimant received her termination letter 'on 20th May, 2020' while elsewhere it is dated 20th May, 2022.
The court states it grants the remedies 'in terms of the prayers in the claim' but the declaration that the termination was unfair, expressly prayed for, is not set out as a distinct order in the final orders.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Wachiuri v Kaisugu Limited (Employment and Labour Relations Cause E010 of 2023) [2024] KEELRC 1949 (KLR)", Case Analysis (2024). Memorandum of Claim dated 7th July 2023 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1949/eng@2024-07-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.