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ELRCDismissedCause No E238 of 2022· [2024] KEELRC 2846 (KLR)

Kamau v Track & Trace Company Limited (Cause E238 of 2022) [2024] KEELRC 2846 (KLR)

Employment and Labour Relations Court
30 October 2024
DMD. K. Njagi Marete
2,093 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court confirmed employers can terminate probationary employees for missing performance targets without the full unfair-termination process.

What this practically means

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Executive summary

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The claimant, formerly a Sales Manager at Smart Applications International earning Kshs.243,000 per month, was engaged by the respondent as General Manager, Sales under an employment agreement dated 22nd January 2022 at a salary of Kshs.400,000. He was summarily dismissed on 3rd March 2022 while still on probation, without reasons being stated in the termination letter. He claimed the dismissal breached sections 41, 43, 45 and 44(4) of the Employment Act, Articles 23(3) and 41(1) of the Constitution and ILO Convention No. 158, and sought declarations of unconstitutionality and unfair termination, 12 months' salary as compensation, payment for the unexpired 10 months of his fixed term contract, notice pay, damages, interest and costs. The respondent denied the claim, asserting the claimant was on a probationary contract terminable under section 42 of the Employment Act for poor performance against contractual weekly and quarterly targets, relying on Danish Jalang'o v Amicabre Travel Services that sections 43 and 45 do not apply to probationary contracts. The claimant relied on Okumu v Good Man Agencies and Monica Munira Kibuchi to argue that probationary employees retain section 45 protections. The court held that the respondent's case overwhelmed the claimant's: the claimant was aware of the contractual performance assessment periods and could not complain of termination for failing to meet contractual obligations, finding lawful termination. The entire claim was dismissed with each party bearing its own costs.

Key legal issues

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01

Whether termination of a probationary employee for poor performance is wrongful, unfair and unlawful

Holding

The termination was lawful; the claimant was on probation, aware of the performance targets, and the contract was governed by section 42 of the Employment Act

Reasoning

The court found the respondent had tendered documentary evidence of contractual performance targets, which were strict but necessary for the nature of the business. The claimant was aware of the weekly and quarterly assessment periods and could not complain of termination for failure to meet contractual obligations. The respondent's reliance on Danish Jalang'o v Amicabre Travel Services, that sections 43 and 45 do not apply to probationary contracts, was accepted.

p. 5
02

Whether the claimant is entitled to the relief sought

Holding

He is not; having failed on the unlawful termination claim he is disentitled to all relief

Reasoning

All heads of claim - the 12 months' compensation, the balance of the fixed term contract, notice pay, general damages, interest and costs - flowed from the finding of unlawful termination. That finding having gone against the claimant, no relief was available and the entire claim was dismissed with each party bearing its own costs.

p. 5

Legal principles established

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  • Termination of a probationary employee is governed by section 42 of the Employment Act, and sections 43 and 45 on valid reasons and fairness do not apply to probationary contracts

Court orders

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  1. 1.The claim is dismissed.
  2. 2.Each party bears their own costs of the cause.

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 23(3), 41(1), 24, 47
  • Employment Act, 2007Sections 41, 42(1), 43, 44(4), 45, 25
  • ILO Convention No. 158 on Termination of EmploymentArticles 4 and 5

Cases cited (4)

  • Okumu v Good Man Agencies Limited
    (Cause 1895 of 2017) [2022] KEELRC 13514 (KLR)
  • Mercy Njoki Karingithi vs Emrald Hotels Resorts & Lodges Ltd
    [2014] eKLR
  • Monica Munira Kibuchi & 6 others v Mount Kenya University; Attorney General (Interested Party)
    [2021] eKLR
  • Danish Jalang'o & Another v Amicabre Travel Services Limited
    (2014) eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction (Employment Act, 2007; Articles 23(3) and 41(1) of the Constitution relied on by the Claimant)

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, "Kamau v Track & Trace Company Limited (Cause E238 of 2022) [2024] KEELRC 2846 (KLR)", Case Analysis (2024). Cause No E238 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2846/eng@2024-10-30

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