Egesa v Women Enterprise Fund Advisory Board (Cause 967 of 2016) [2024] KEELRC 2646 (KLR)
The bottom line
#A Kenyan court ruled an employee's probation ended automatically when her employer stayed silent, making her later dismissal unfair and worth Kshs. 920,504.
What this practically means
#Executive summary
#Key legal issues
#Whether the belated extension of probation was lawful
The extension of probation in October 2014 was irregular; the Claimant was confirmed by operation of law on 1st July 2014 when the 6-month probation lapsed without communication, and there was no probation to extend
Section 42(2) of the Employment Act caps probation at 6 months, extendable only with the employee's agreement and immediately the initial period ends. The Respondent did not communicate any outcome at the end of probation on 1st July 2014 and purported to extend it over 3 months later. The Claimant never agreed, having disputed the extension in writing. The Court also found the extension likely motivated by ulterior motives, noting the Claimant had been invited to interview for Acting CEO days earlier.
Whether termination was for valid reason and by fair procedure
The Respondent failed to establish a valid reason justifying termination; the disciplinary committee did not recommend termination, and the Acting CEO crafted new charges on the very date of termination, unsupported by any hearing
The disciplinary committee of 7th October 2015 made no recommendation to terminate; it instead advised restructuring of the department, exceeding its mandate. The termination letter of 28th October 2015 relied on that hearing, and simultaneously introduced new allegations (inflated dinner bill, Kitale travel) for which the Claimant was never given an opportunity to defend. The Court concluded the Acting CEO, insecure about a past rival, resolved to eject her by all means.
Whether the constitutional and other damages prayers were merited
Reinstatement, constitutional declarations, discrimination damages, and general/aggravated/exemplary damages were all declined; only statutory compensation and 1 month's notice were awarded
Reinstatement was impracticable as the contract's Effective Date of Termination had passed and Section 12(3)(vii) of the ELRC Act bars reinstatement beyond 3 years. The dispute fell wholly within the Employment Act, making constitutional declarations unnecessary. Discrimination was not established with comparators, and the multiple damages prayers were characterized as cash-grab litigation without legal foundation.
Legal principles established
#- Probation cannot be presumed to continue beyond the contractual probationary period; extension under Section 42(2) of the Employment Act must be agreed with the employee and considered immediately the initial period ends
- Where no communication is made at the end of a probationary period, the employee is entitled to consider the appointment confirmed
Court orders
#- 1.Declaration that termination of the Claimant's contract by the Respondent was unfair
- 2.Respondent to pay compensation for unfair termination equivalent of 7 months' salary at Kshs. 805,441 and 1-month salary in lieu of notice at Kshs. 115,063 – total Kshs. 920,504
- 3.Costs to the Claimant
- 4.Interest at court rate from the date of Judgment till payment in full
- Jurisdiction invoked
- Employment and Labour Relations Court Act, Section 12
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Egesa v Women Enterprise Fund Advisory Board (Cause 967 of 2016) [2024] KEELRC 2646 (KLR)", Case Analysis (2024). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2646/eng@2024-10-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.