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ELRCPartially AllowedMemorandum of Claim filed 16th May 2023 (ELRC, Nairobi)· [2025] KEELRC 1005 (KLR)

Oduor v Umba Technology Limited (Cause E382 of 2023) [2025] KEELRC 1005 (KLR)

Employment and Labour Relations Court
28 March 2025
SRSTELLA RUTTO
4,207 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ruled that even probationary employees cannot be fired without a fair process, awarding a former Head of Growth nearly KShs 3 million.

What this practically means

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Executive summary

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The Claimant, headhunted from Bento Valleys Limited and employed as Head of Growth from 14th November 2022, sued the Respondent alleging that her employment was wrongfully and unfairly terminated on 13th January 2023 via a WhatsApp 'catch-up call' by the Respondent's Chief Financial Officer, followed by a written termination letter, without valid reason or procedural fairness. She sought declarations, 12 months' pay as compensation, constitutional damages under Articles 29, 41 and 47, damages for breach of legitimate expectation, a certificate of service, interest and costs. The Respondent maintained that she was terminated during her six-month probation for poor performance and lack of fit, after assessments and with seven days' notice under Section 42 of the Employment Act. The Court framed three issues: justification of the reason for termination, procedural fairness, and entitlement to reliefs. It found the Respondent failed to prove a performance evaluation against targets, had no performance measurement policy, and could not objectively conclude she was 'not a good fit'; the burden under Sections 43(1) and 45(2) of the Employment Act was thus not discharged. On procedure, relying on Monica Munira Kibuchi, the Court held that Section 42(1) - declared unconstitutional on 30th July 2021 - no longer exempted probationary terminations from Section 41, and the Claimant was never notified of allegations or given a hearing; verbal termination via WhatsApp aggravated the unfairness. The Claimant's termination was declared unfair and unlawful. Compensation was capped at three months' gross salary (Kshs 2,875,000.00) owing to the short employment duration, with interest, costs and a certificate of service within 30 days. Judgment was delivered by Stella Rutto, J, in Nairobi on 28th March 2025.

Key legal issues

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01

Whether the Respondent proved a valid and justifiable reason for terminating the Claimant on grounds of poor performance

Holding

The termination was substantively unjustified; the Respondent adduced no evidence of a performance evaluation against targets and had no policy for measuring performance.

Reasoning

Under Sections 43(1) and 45(2)(a) and (b) of the Employment Act, the employer bears the burden of proving a valid reason on a balance of probabilities. Although expectations were documented on 21st December 2022, there was no evidence the Claimant was evaluated against them before termination on 18th January 2023, and no performance management policy existed. The conclusion that she was 'not a good fit' was therefore not based on an objective assessment.

p. 7
02

Whether the Claimant was afforded procedural fairness prior to termination

Holding

The termination was procedurally flawed: the Claimant was given no notice of contemplated termination, no opportunity to respond, and was terminated verbally via a WhatsApp call.

Reasoning

Following the unconstitutionality of Section 42(1) declared in Monica Munira Kibuchi, Section 41 applied to probationary contracts by January 2023. There was no evidence the Claimant was notified of allegations against her performance or given a chance to make representations. Section 41 is mandatory, as reiterated in Postal Corporation of Kenya v Andrew K. Tanui; verbal termination via WhatsApp aggravated the unfairness.

p. 7
03

What reliefs the Claimant is entitled to

Holding

Compensatory damages of three months' gross salary (Kshs 2,875,000.00), interest, costs, and a certificate of service.

Reasoning

Having found both substantive and procedural unfairness, the Court awarded compensation under the Employment Act, calibrating the award downwards from the 12 months sought because the employment relationship was considerably short and considering the circumstances of termination. A certificate of service under Section 51 was also ordered as the employment relationship was admitted.

p. 8

Legal principles established

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  • An employer alleging termination for poor performance must prove the effort leading to that conclusion, including performance evaluation against set targets over a specified period; it does not suffice to merely assert poor performance.
  • An employer must have a policy or practice on measuring performance, including how targets are set, agreed upon and assessed, and key performance indicators.
  • After the declaration of unconstitutionality of Section 42(1) of the Employment Act (effective 30th July 2021), employers must comply with Section 41 procedural requirements even when terminating probationary employees.
  • Probationary employees remain insulated from unlawful termination notwithstanding the short duration of employment.

Court orders

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  1. 1.A declaration that the Claimant's termination from employment was unfair and unlawful
  2. 2.Compensatory damages of Kshs 2,875,000.00 (three months' gross salary) to the Claimant
  3. 3.Interest on the award at court rates from the date of Judgment until payment in full
  4. 4.The Claimant shall have the costs of the suit
  5. 5.The Respondent shall issue the Claimant with a Certificate of Service within 30 days from the date of the Judgment
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes (Employment Act, 2007); judgment does not cite a specific jurisdictional article

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, "Oduor v Umba Technology Limited (Cause E382 of 2023) [2025] KEELRC 1005 (KLR)", Case Analysis (2025). Memorandum of Claim filed 16th May 2023 (ELRC, Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1005/eng@2025-03-28

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