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ELRCPartially AllowedMemorandum of Claim dated 7th July 2023 (number not stated in judgment)

Wachiuri v Kaisugu Limited (Employment and Labour Relations Cause E010 of 2023) [2024] KEELRC 1949 (KLR)

Employment and Labour Relations Court
23 July 2024
5,985 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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The claimant, employed on 9th January 2022 as Sales and Marketing Manager on a six-month probationary contract, was terminated by letter dated 20th May 2022, which invoked section 42 of the Employment Act and clause 8.1 of the contract without stating reasons. She claimed the termination was unfair, alleging it was prompted by her report of sexual harassment by the Operations Manager, and sought a declaration, twelve months' compensation and damages for sexual harassment. The Respondent defended the termination on grounds of poor performance against a 45-tonne sales target, insubordination and integrity lapses, maintaining that email correspondences and meetings amounted to a fair hearing during probation. Five Respondent witnesses testified; the Managing Director admitted there was no substantive appraisal report, no show cause letter, and that the termination letter carried no reasons. The court framed two issues: whether the termination was fair and justified, and entitlement to remedies. Relying on Monica Munira (declaring section 42(1) unconstitutional to the extent it excludes probationary employees from section 41) and Francis Kibugi, the court held that probation does not exempt an employer from procedural fairness. The email exchanges never asked the claimant to exonerate herself, appraisal evidence was contradictory and unproduced, and no reasons were assigned in the termination letter, breaching sections 41, 43 and 45. The termination was held unfair and unjustified. Compensation of eight months' salary was awarded, plus costs and interest. The sexual harassment damages claim was not awarded, having been raised only in submissions and not pleaded. Judgment delivered virtually on 23rd July 2024 by Hellen Wasilwa, J.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Respondent's termination of the Claimant's services was fair and justified
  2. 2.Whether the Claimant is entitled to the remedies sought

Key legal issues

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01

Whether termination of a probationary employee requires procedural fairness under section 41 of the Employment Act

Holding

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.

Reasoning

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.

p. 10
02

Whether the Respondent had valid and fair reasons for the termination

Holding

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.

Reasoning

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.

p. 10
03

Whether the claimant was entitled to compensation for unfair termination

Holding

Yes; compensation equivalent to eight months' salary was awarded under the remedies for unfair termination.

Reasoning

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.

p. 12
04

Whether the sexual harassment claim was proved

Holding

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.

Reasoning

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.

p. 10

Legal principles established

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  • 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

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  1. 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. 2.The Respondent to pay costs of the suit plus interest at court rates with effect from the date of the judgment

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (termination of employment claim)

Relief refused

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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.

p. 9

Twelve months' gross pay compensation (Kshs 967,704 as claimed)

The court awarded 8 months' salary instead of the 12 months claimed.

p. 12

Costs

The Respondent will pay costs of this suit plus interest at court rates with effect from the date of this judgment.

Quotable passages

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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.
p. 10procedural fairness for probationary employees
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.
p. 12unfair termination finding
I have looked at the email exchanges and notice that none asked the Claimant to exonerate herself for poor performance.
p. 11email correspondence is not a hearing
Compensation for unlawful termination awarded for 8 months' salary = 8 x 224,482/= as per her pay slip = 1,795,856/= Less statutory deductions.
p. 12final orders - compensation
The Respondent will pay costs of this suit plus interest at court rates with effect from the date of this judgment.
p. 12final orders - costs and interest

Issues in the judgment

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minor

Duplicated and inconsistent paragraph numbering: paragraphs 58 and 59 appear twice, and the remedies section is numbered 78 immediately after paragraph 72.

material

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).

minor

Internal date contradiction: the judgment states the claimant received her termination letter 'on 20th May, 2020' while elsewhere it is dated 20th May, 2022.

minor

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

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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, "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.