Gakumo v Thika Technical Training Institute (Cause E185 of 2021) [2024] KEELRC 2408 (KLR)
The bottom line
#A Kenyan court confirmed that even employees on probation must be given a fair hearing and a valid, evidence-backed reason before dismissal.
What this practically means
#Executive summary
#Key legal issues
#Whether the termination was substantively fair (valid reason)
The allegation of conflict of interest was not supported by evidence and could not stand as a valid reason under Section 43 of the Employment Act.
The termination letter cited conflict of interest, particularised as fast-tracking payment to the Claimant's own business. The Claimant had opted out of further business before employment, and the Respondent's own Human Resource Officer admitted the payment related to goods previously supplied and that the Claimant played his properly assigned role in processing it. No evidence supported non-disclosure or misconduct, so the reason was invalid.
Whether the Claimant, on probation, was entitled to procedural fairness under Section 41
Yes; probationary employees are entitled to Section 41 procedural safeguards, and the Respondent condemned the Claimant unheard.
The Respondent relied on Section 42 to argue probation excluded procedural fairness. The court rejected this: the termination letter made no mention of failed probation and even commended the Claimant's exemplary performance, and the Respondent's witness confirmed satisfactory completion of probation. Firm jurisprudence, including Evans Kiage Onchwari and Monica Munira Kibuchi, holds that probationary employees enjoy Section 41 protections. The Respondent took no step towards the disciplinary procedure, so the Claimant was condemned unheard.
Entitlement to remedies
Compensation of four months' salary and one month's notice pay awarded; general and exemplary damages disallowed.
In assessing compensation the court considered the short stint in employment, the Claimant's non-contribution to the termination, and the Respondent's failure to afford a hearing. No basis was established for general and exemplary damages, which were accordingly disallowed. Judgment was entered for Kshs. 381,620 with interest and costs.
Legal principles established
#- An employer must show a valid reason for termination supported by evidence under Section 43 of the Employment Act; an allegation not supported by evidence cannot be a valid reason.
- Employees serving probationary contracts are entitled to the procedural fairness safeguards under Section 41 of the Employment Act.
Court orders
#- 1.Judgment entered in favour of the Claimant in the sum of Kshs. 381,620, comprising 4 months' salary in compensation (Kshs. 305,296) and 1 month's salary in lieu of notice (Kshs. 76,324)
- 2.The said amount to attract interest at court rates from the date of judgment until payment in full
- 3.The Claimant awarded the costs of the case
- Jurisdiction invoked
- Employment and labour relations jurisdiction over a claim for unlawful and unfair termination of employment (Employment Act, Sections 41, 42 and 43)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Gakumo v Thika Technical Training Institute (Cause E185 of 2021) [2024] KEELRC 2408 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2408/eng@2024-10-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.