Mutua v Vert Limited (Cause 495 of 2019) [2025] KEELRC 694 (KLR)
The bottom line
#A Kenyan court ruled that even probationary employees must get a fair hearing before dismissal, awarding the employee Kshs. 900,000.
What this practically means
#Executive summary
#Key legal issues
#Whether termination of a probationary employee on grounds of poor performance without a hearing or performance appraisal was unlawful and unfair
Termination was substantively and procedurally unfair; probationary status does not oust procedural fairness protections
The termination letter cited failure to meet performance expectations, yet no performance appraisal or opportunity to improve was given. The court held Section 42(1), which excludes probationary contracts from Section 41 fairness requirements, is unconstitutional as it limits Article 41 rights beyond Article 24 thresholds, a position affirmed by a three-judge bench.
Whether the Claimant's conduct amounted to acquiescence/estoppel regarding his re-designation from Head of Finance and Administration to General Manager
Estoppel rejected; a major variation of a written contract cannot be effected by implication
The engagement was governed by a written contract. The Respondent relied on emails and conduct to show the Claimant accepted re-designation. The court held that a major variation such as change in designation required a written variation and could not be effected by implication or acquiescence.
What remedies the Claimant was entitled to
Three months' salary (Kshs. 900,000) awarded; house allowance claim disallowed; certificate of service and costs granted
In assessing compensation the court considered the Claimant's short length of service, his non-contribution to the termination, and the Respondent's failure to observe due process. The house allowance claim failed because his salary was consolidated; certificate of service was granted as of right.
Legal principles established
#- Section 42(1) of the Employment Act, insofar as it ousts procedural fairness for probationary contracts, does not meet the Article 24 limitation threshold; probationary employees enjoy Article 41 constitutional labour rights
- A major variation of a written employment contract, such as change in designation, cannot be effected by implication or conduct without a written variation
- Proper procedure for poor performance requires pointing out shortcomings and giving the employee opportunity to improve over a reasonable time
Court orders
#- 1.Declaration that the termination of the Claimant's employment was substantively and procedurally unfair
- 2.Judgment entered for the Claimant in the sum of Kshs. 900,000 being three months' salary in compensation for unlawful and unfair termination
- 3.Award subject to statutory deductions and to attract interest at court rates from date of judgment until payment in full
- 4.Claimant entitled to a certificate of service
- 5.Costs of the case awarded to the Claimant
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act (first-instance employment claim)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mutua v Vert Limited (Cause 495 of 2019) [2025] KEELRC 694 (KLR)", Case Analysis (2025). Not stated in judgment (Statement of Claim dated 29th July 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/694/eng@2025-03-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.