Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCPartially AllowedMemorandum of Claim dated 22nd May 2024 (ELRC, Nyeri)· [2025] KEELRC 796 (KLR)

Otieno v Fairmont Mount Kenya Safari Club (Employment and Labour Relations Cause E017 of 2024) [2025] KEELRC 796 (KLR)

Employment and Labour Relations Court
12 March 2025
OMOnesmus N Makau
2,414 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

#

Kenyan employers cannot fire probationary staff for poor performance without first giving them a hearing — even after a performance improvement plan.

What this practically means

#

Executive summary

#
The claimant, employed as Chief Steward/Hygiene Manager on 15th December 2023 at a monthly salary of Kshs.140,000, was placed on a Performance Improvement Plan on 2nd February 2024 during his six-month probation and his employment was terminated on 15th February 2024 for poor performance, without a show cause letter or hearing. He claimed damages for wrongful termination and terminal benefits. The respondent maintained the termination was procedural under the probation clause and section 44 of the Employment Act. The court framed two issues: whether the termination was unfair and unlawful, and whether the reliefs were merited. It held that although jurisprudence has eroded the special status of probationary contracts - the exclusion of sections 41 and 45 by section 42 having been declared unconstitutional - the employer demonstrated a valid reason for termination: the claimant failed to submit regular reports and a hygiene incident occurred. However, procedure was flawed: section 41 mandatorily requires a hearing before termination for poor performance, and neither placement on a PIP nor payment of salary in lieu of notice discharges that duty. The termination was therefore unfair under section 45. On reliefs, the certificate of service claim was overtaken by events, the Kshs.60,000 terminal benefits claim was declined for lack of particulars and evidence, and compensation was limited to one month's salary (Kshs.140,000) given the short service and the claimant's own poor performance, subject to statutory deductions, plus costs and interest from the date of judgment. Judgment was delivered via Teams with the parties' consent, waiving Rule 28(3) of the ELRC Procedure Rules.

Key legal issues

#
01

Whether a valid reason existed for terminating the claimant's probationary contract

Holding

The court found a valid reason - the claimant's failure to submit reports and a hygiene incident demonstrated poor performance incompatible with long-term employment

Reasoning

The court held that probation exists to assess compatibility, and the employer demonstrated the claimant did not perform to satisfaction. He failed to make daily and weekly reports and a foreign object was found in a customer's food, justifying separation for incompatibility.

p. 4
02

Whether a fair procedure was followed before termination

Holding

No hearing was accorded; the termination was procedurally unfair notwithstanding the valid reason

Reasoning

Section 41 is mandatory: an employer must explain reasons and hear representations before terminating for poor performance. Placement on a PIP or an offer of salary in lieu of notice does not displace the right to a hearing. Termination without hearing was unfair under section 45.

p. 5
03

Whether section 42 excludes fair-hearing rights for probationary employees

Holding

The provision has been declared unconstitutional; probationary employees enjoy Article 41 and 47 protections

Reasoning

The court noted that the sui generis pre-contract treatment of probationary contracts excluding sections 41 and 45 has been declared unconstitutional as contrary to fair labour practices and fair administrative action. Employers must show valid reason and follow fair procedure even in probation.

p. 4

Legal principles established

#
  • The constitutional protection of fair hearing under Article 47 and section 41 of the Employment Act applies to termination of probationary contracts despite section 42 of the Employment Act
  • An employer must accord an employee a fair hearing before termination on grounds of poor performance, even where a PIP preceded the termination or notice/salary in lieu is offered

Court orders

#
  1. 1.Judgment entered for the claimant in the sum of Kshs.140,000 as compensation for unfair termination, subject to statutory deductions
  2. 2.Costs of the suit awarded to the claimant
  3. 3.Interest on the award at court rates from the date of judgment
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act and Article 41 and 47 of the Constitution

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Otieno v Fairmont Mount Kenya Safari Club (Employment and Labour Relations Cause E017 of 2024) [2025] KEELRC 796 (KLR)", Case Analysis (2025). Memorandum of Claim dated 22nd May 2024 (ELRC, Nyeri). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/796/eng@2025-03-12

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