Wangeci v Securex Agencies (K) Ltd (Cause E289 of 2022) [2025] KEELRC 227 (KLR)
The bottom line
#Kenya's Employment Court confirmed that even probationary employees must get a fair hearing, and employers must prove poor performance with documented targets and evaluations.
What this practically means
#Executive summary
#Key legal issues
#Whether the Respondent had a valid and fair reason to terminate the Claimant on grounds of suitability and performance
No; the Respondent failed to discharge its evidential burden, and the termination was not substantively justified.
Although the termination letter cited suitability and performance, the Respondent produced no evidence of performance appraisal, no specific measurable targets, timelines or key performance indicators, and no evaluation report. Without proof of evaluation against set indicators, the employer could not establish that performance was genuinely wanting.
Whether the termination was procedurally fair given the probationary status of the Claimant
No; Section 42(1) had been declared unconstitutional before the termination, so Section 41 protections applied, and none were observed.
Section 42(1), which exempted probationary contracts from Section 41, was declared unconstitutional in Monica Munira Kibuchi & 6 others v Mount Kenya University by judgment dated 30th July 2021, before the Claimant's termination on 30th November 2021. The Respondent was therefore required to notify the Claimant of allegations and hear her representations, which it did not do.
What reliefs the Claimant is entitled to
A declaration of unfair and unlawful termination plus compensatory damages of three months' gross salary (Kshs 450,000), with interest and costs; the 12 months' maximum sought was not awarded.
Having found both substantive and procedural unfairness, the Court awarded compensatory damages equivalent to three months' gross salary, taking into account the considerably short length of the employment relationship and the attendant circumstances of the termination.
Legal principles established
#- An employer must prove both valid reason and fair procedure for termination; poor performance must be demonstrated through established targets, performance indicators and evaluation.
- Section 41 of the Employment Act sets mandatory minimum standards of fair procedure, applying even to probationary employees after the declaration of unconstitutionality of Section 42(1).
Court orders
#- 1.A declaration that the termination of the Claimant from employment was unfair and unlawful
- 2.The Claimant is awarded compensatory damages in the sum of Kshs 450,000.00 being equivalent to three (3) months of her gross salary
- 3.Interest on the award at court rates from the date of Judgment until payment in full
- 4.The Claimant shall have the costs of the suit
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act (Sections 41, 42(1), 43 and 45)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Wangeci v Securex Agencies (K) Ltd (Cause E289 of 2022) [2025] KEELRC 227 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/227/eng@2025-01-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.