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ELRCPartially AllowedCause No. E205 of 2023· [2025] KEELRC 562 (KLR)

Mtana v Avic International Real Estates (K) Limited & another (Cause E205 of 2023) [2025] KEELRC 562 (KLR)

Employment and Labour Relations Court
27 February 2025
CBC. N. Baari
3,245 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ruled that even probationary employees can challenge dismissal as unfair, awarding a hotel manager six months' salary.

What this practically means

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Executive summary

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The Claimant was employed by the 1st Respondent as Human Resource/Human Capital & Development Manager on a salary of Kshs. 365,000 per month, under a three-month probationary contract, and was seconded to the 2nd Respondent. He reported on 1st August 2022 and was terminated on 21st October 2022, ten days before the probation ended, without an appraisal or reasons beyond a statement that his work had been assessed and his employment would not be confirmed. He sued for a declaration of unfair termination, notice pay, leave pay, 12 months' compensation, certificate of service, costs and interest. The Respondents argued that under Section 42(1) of the Employment Act, termination during probation requires only notice or pay in lieu, and sought to strike out the 2nd Respondent as having no contractual relationship with the Claimant. The court framed three issues: joinder of the 2nd Respondent, fairness of the termination, and entitlement to remedies. It held that the 2nd Respondent was properly a party since secondment does not oust the serving entity's responsibility. Following Monica Munira v Mount Kenya University and Mary Njoki Karingithi v Emralo Hotels, the court held that probationary employees enjoy procedural safeguards and the requirement of valid reasons, and Section 42 does not bar a challenge to termination. With no evidence of any genuine assessment, the termination was unfair and unlawful. The court awarded 6 months' salary (Kshs. 2,190,000) as compensation, a certificate of service within 14 days, costs and interest; notice pay and leave pay were refused.

Key legal issues

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01

Whether the 2nd Respondent should be a party to the suit

Holding

The prayer to strike out the 2nd Respondent failed; the 2nd Respondent remained properly joined.

Reasoning

The 1st Respondent recruited and seconded the Claimant to the 2nd Respondent. Secondment is not outsourcing; the entity served has equal responsibility for the contract terms, and the seconding party is the primary employer. Only the 2nd Respondent could have appraised the Claimant, and the Respondents' witness confirmed the two are one and the same company, so they could not escape liability.

p. 5
02

Whether the Claimant was unfairly terminated

Holding

The termination of the probationary contract was unfair and unlawful.

Reasoning

Although the contract provided for termination on 7 days' notice during probation, the court held that procedural safeguards under Section 41 and the requirement of valid reasons under Sections 43 and 45 are not ousted for probationary contracts, following Monica Munira and Mary Njoki Karingithi. The Respondents had no evidence of any assessment of the Claimant prior to termination, and no valid reasons were given.

p. 7
03

Whether the Claimant is entitled to the remedies sought

Holding

Compensation of 6 months' salary and a certificate of service awarded; notice pay and leave pay refused.

Reasoning

Unfair termination entitled the Claimant to compensation, assessed at 6 months' salary given that the Respondents knew he had resigned from prior employment and he had since secured another job. Notice pay failed because notice was given and paid. Leave pay failed as he had not earned leave in 3 months. A certificate of service is a statutory entitlement regardless of length of service.

p. 7

Legal principles established

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  • In secondment arrangements, both the seconding employer and the entity served bear responsibility for fulfilment of the contract terms, and the seconding party is the primary employer.
  • Section 42 of the Employment Act does not bar an employee on a probationary contract from challenging the fairness or validity of termination; procedural safeguards and valid reasons apply even during probation.
  • An employer must subject a probationary employee to consistent and genuine evaluation based on performance, compatibility and overall conduct before deciding not to confirm.

Court orders

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  1. 1.A declaration that the Claimant's termination was unfair and unlawful
  2. 2.6 months' salary as compensation for the unfair termination at Kshs. 2,190,000/-
  3. 3.A certificate of service be issued within 14 days of the order
  4. 4.The Respondents shall bear the costs of the suit and interest from the date of judgment until payment in full

Authorities

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Legislation

  • Employment Act, 2007Section 45(3)
  • Employment Act, 2007Section 42(1)
  • Employment Act, 2007Section 41
  • Employment Act, 2007Section 41(2)
  • Employment Act, 2007Section 43
  • Employment Act, 2007Section 45(1) & (2)
  • Employment Act, 2007Section 49
  • Constitution of Kenya, 2010Articles 24, 28, 41, 41(1), 47, 48, 50(1)

Cases cited (7)

  • Samuel G. Momanyi V Attorney General & another [2012] eKLR
    [2012] eKLR
  • Evans Kiage Onchwari V Hotel Ambassadeur Nairobi [2016] eKLR
    [2016] eKLR
  • Rika Jin Danish Jalang'o & another v Amicabre Travel Service Ltd
  • Dixon Andama v Amani Tiwi Beach Resort
  • Mary Kemunto Oyugi v Canton Building & Construction Limited [2018] eKLR
    [2018] eKLR
  • Monica Munira & 6 Others v. Mount Kenya University (2021) eKLR
    (2021) eKLR
  • Mary Njoki Karingithi v. Emralo Hotels Resorts & Lodges Limited (2014) eKLR
    (2014) eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (employment and labour relations dispute)

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, "Mtana v Avic International Real Estates (K) Limited & another (Cause E205 of 2023) [2025] KEELRC 562 (KLR)", Case Analysis (2025). Cause No. E205 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/562/eng@2025-02-27

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