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ELRCPartially AllowedNot stated in judgment text· [2024] KEELRC 2426 (KLR)

Oduor v Getrudes Children Hospital (Employment and Labour Relations Cause E6553 of 2020) [2024] KEELRC 2426 (KLR)

Employment and Labour Relations Court
30 September 2024
AMAnna Ngibuini Mwaure
1,725 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The claimant was employed by the respondent as a medical officer on permanent terms effective 4th November 2019 at a gross monthly salary of Kshs 230,000/-, subject to three months' probation. The respondent terminated the appointment on 5th June 2020 on grounds of poor performance, contending the probation had been extended for a further three months. The claimant asserted his probation had expired on 4th February 2020 and that termination without the contractual two months' notice or payment in lieu was unlawful. The respondent's own witness admitted no written notice of extension was issued and that no pension was paid. The court framed two issues: whether the claimant was on probation at termination, and whether the termination was lawful. Relying on section 107 of the Evidence Act and the authority in Daniel Mutuku Njuguna, the court found that in the absence of any documented extension or evaluation the claimant had transitioned to permanent terms. On the second issue, the court held the respondent gave no valid reason and failed to follow sections 41(1) and 45(1) of the Employment Act, including a participatory appraisal and disciplinary hearing. Judgment was entered for the claimant: two months' salary in lieu of notice (Kshs 460,000/-), one month's salary as general damages (Kshs 230,000/-), total Kshs 690,000/-, with costs and 14% interest from judgment. The leave-days claim was denied for want of specifics.

Key legal issues

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01

Status of the claimant at termination

Holding

Claimant had transitioned from probation to permanent terms after February 2020

Reasoning

The contract provided a three-month probation terminable by two weeks' notice. The claimant served the three months and worked a further four months. No assessment, performance evaluation or letter extending probation was produced. The respondent's assertion of an extension was unsupported by documents and failed on the burden of proof under section 107 of the Evidence Act.

p. 3
02

Lawfulness of the termination

Holding

Termination was unlawful for want of a valid reason and failure to follow mandatory procedure

Reasoning

Section 45(1) of the Employment Act prohibits unfair termination. Poor-performance terminations require proof of an evaluation tool, a participatory appraisal, and a disciplinary hearing under section 41(1). The respondent produced no evaluation records, gave no valid reason, and conducted no disciplinary process before terminating.

p. 4

Legal principles established

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  • Where an employee serves the full probationary period and continues working without any documented extension of probation, the employee transitions to permanent terms.
  • An employer alleging extension of probation bears the burden of proving it.
  • Termination for poor performance requires a valid reason, a credible participatory performance evaluation, and a disciplinary process under sections 41 and 45 of the Employment Act.

Court orders

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  1. 1.Two months salary in lieu of notice of Kshs 460,000/-
  2. 2.One month salary equivalent for general damages of Kshs 230,000/-
  3. 3.Claim for unpaid leave days denied
  4. 4.Costs awarded to the claimant
  5. 5.Interest at 14% from date of judgment till full payment
  6. 6.Total award of Kshs 690,000/-
Jurisdiction invoked
First-instance employment claim under the Employment Act (statutory jurisdiction of the Employment and Labour Relations Court)

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, "Oduor v Getrudes Children Hospital (Employment and Labour Relations Cause E6553 of 2020) [2024] KEELRC 2426 (KLR)", Case Analysis (2024). Not stated in judgment text. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2426/eng@2024-09-30

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.