Kamtix Clearners Limited v Midira (Appeal E218 of 2024) [2025] KEELRC 973 (KLR)
The bottom line
#Kenyan employers cannot extend probation without employee consent or fire for poor performance without a hearing — both make termination unfair.
What this practically means
#Executive summary
#Key legal issues
#Status of the respondent at termination
The initial 6-month probation lapsed and was never lawfully extended; the second 12-month probationary contract issued on 1 September 2019 was unlawful, so the respondent was a full-time employee entitled to notice and reasons
The court found the first 6-month probation ended without explanation and that continued service was evidenced by wage payments. Under section 42 of the Employment Act, upon expiry of the agreed probation the employee becomes a full-time employee unless the probation is mutually extended, and any extension cannot exceed 12 consecutive months. Unilaterally issuing a further probationary contract was unlawful.
Procedural fairness in termination for poor performance
No show-cause notice or hearing preceded the termination; section 41 requirements are mandatory and their breach rendered the termination unfair
The court relied on Court of Appeal authority that section 41 requires notification and explanation of reasons and an opportunity to make representations, requirements rooted in natural justice. The appellant did not claim to have issued notice addressing the alleged poor performance, and there was no hearing or elaboration of particulars.
Inconsistent reasons for termination
The appellant advanced conflicting reasons (expiry of third-party contract, probationary terms, poor performance); the notice itself cited poor performance, and the lack of clarity resulted in wrongful termination
Under section 43, the employer must prove the reason for termination as matters it genuinely believed to exist at termination. The notification letter dated 1 October 2020 cited non-renewal for poor performance, while submissions alleged dependence on the third-party KCB contract. These shifting and contradictory reasons could not sustain a lawful termination.
Quantum of awards
Compensation reduced to six months' gross wage (Ksh.93,653.10), notice pay set at Ksh.15,608.85, underpayments limited to 12 months (Ksh.43,306.02) and leave pay recalculated for 33 days (Ksh.14,929.02)
The court held the trial court had not justified the maximum 12 months' compensation under section 45(5); considering procedural lapses and service from 2017 to 2020, six months was appropriate. Underpayment is a continuing injury limited to 12 months under section 89, and leave accrual is capped at 18 months under section 28(4).
Legal principles established
#- A fixed-term contract and a probationary contract are not synonymous; each has its own procedure for execution and termination
- A probationary period cannot be extended beyond its term without the employee's consent; an unconsented extension is unlawful and the employee becomes a full-time employee
- An employer terminating for poor performance must comply with section 41 of the Employment Act; due process is mandatory
- Parties cannot contract out of the statutory minimum wage; an employment contract cannot be used to pay below the Wage Order
Court orders
#- 1.Compensation of Ksh.93,653.10 (6 months' gross wage)
- 2.Notice pay of Ksh.15,608.85
- 3.Underpayments of wage inclusive of house allowance of Ksh.43,306.02
- 4.Leave pay of Ksh.14,929.02
- 5.Certificate of service to be issued
- 6.Costs of the trial court from the date of the judgment
- 7.For the appeal, the respondent awarded 50% of the costs
- On appeal from
- Magistrates' Court (Employment and Labour Relations), Mombasa
- CMELRC No. E314 of 2021
- Jurisdiction invoked
- First appeal from the trial court in employment and labour relations matter
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kamtix Clearners Limited v Midira (Appeal E218 of 2024) [2025] KEELRC 973 (KLR)", Case Analysis (2025). ELRC Appeal arising from Mombasa CMELRC No. E314 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/973/eng@2025-03-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.