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ELRCPartially AllowedNot stated in the judgment· [2025] KEELRC 1207 (KLR)

theuri v Rhombus Construction Company Limited & 2 others (Cause E832 of 2023) [2025] KEELRC 1207 (KLR)

Employment and Labour Relations Court
25 April 2025
ANAgnes Kitiku Nzei
2,009 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court confirmed that even probationary employees are protected against unfair termination and can claim compensation for under thirteen months of service.

What this practically means

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Executive summary

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The Claimant sued three Respondents by a Statement of Claim dated 13th October 2023, seeking a declaration of unfair termination, salary arrears, 12 months' compensation (Kshs.1,200,000/=), costs, interest, and an order for remittance of NHIF and NSSF deductions. He pleaded that he was employed on 5th March 2022 as Project and Tender Manager on a three-year contract at Kshs.100,000/= per month, and that on 4th May 2022 he received a one-week termination notice effective 11th May 2022, with no reason given and no salary paid for the two months worked. The Respondents did not enter appearance or defend the suit despite service. The court (Agnes Kitiku Nzei, J) found that the employer was Rhombus Construction Company Limited; the 2nd and 3rd Respondents, who had signed the documents as the company's General Manager and CEO, were wrongly enjoined and the suit against them was dismissed with no order as to costs. On the merits, the court held that although the Claimant was on probation, the one-week notice breached the contractual two-week notice, rendering termination procedurally unfair, and the failure to give any reason rendered it substantively unfair since Section 45(1) and (2) protections apply regardless of probation. Relying on Samuel G. Momanyi v Attorney General & Another, the court held that the thirteen-month service threshold in Section 45(3) could not bar the claim. Judgment was entered for the Claimant against the 1st Respondent for Kshs.300,000/= compensation (three months' salary) and Kshs.200,000/= salary arrears, subject to statutory deductions, plus costs taxed on the lower scale and interest at court rates from the date of judgment.

Key legal issues

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01

Whether termination of the Claimant's probationary employment was unfair

Holding

Termination was procedurally and substantively unfair: the employer gave one week's notice contrary to the contractual two weeks, and gave no reason for termination

Reasoning

The contract entitled the Claimant to two weeks' notice during probation, but only one week was given, breaching the contract and rendering termination procedurally unfair. The termination notice gave no reason, and the employer failed to prove a valid or fair reason as required by Section 45(1) and (2) of the Employment Act, rendering it substantively unfair. Section 42(1) exempts probationary terminations only from the Section 41 procedure.

p. 5
02

Whether Section 45(3) of the Employment Act (thirteen-month continuous service threshold) bars the Claimant's claim

Holding

No; the court followed the High Court decision in Samuel G. Momanyi v Attorney General & Another declaring Section 45(3) unconstitutional

Reasoning

Although the Claimant worked only about two months and Section 45(3) excludes employees with less than thirteen months' continuous service from pleading unfair termination, the court was persuaded by Lenaola J's decision in Samuel G. Momanyi in which Section 45(3) was declared unconstitutional, and thus proceeded to find unfair termination.

p. 5
03

Whether the 2nd and 3rd Respondents (company officials) were properly sued

Holding

They were wrongly enjoined; the suit against them was dismissed with no order as to costs

Reasoning

The employment documents showed the employer was Rhombus Construction Company Limited; the 2nd and 3rd Respondents signed the documents only as the company's General Manager and Chief Executive Officer. A limited liability company has a legal identity distinct from its directors and officials, so the officials were wrongly joined.

p. 3
04

What reliefs are deserved

Holding

Three months' salary as compensation (Kshs.300,000/=) and salary arrears of Kshs.200,000/= for the two months worked

Reasoning

Having found unfair termination and considering the manner of termination, the court awarded three months' salary as compensation. The claim for two months' unpaid salary of Kshs.100,000/= per month was unrebutted, the 1st Respondent having been served but not having defended the suit, and was awarded in full.

p. 5

Legal principles established

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  • Section 45(1) and (2) of the Employment Act protections against unfair termination apply to probationary employees; failure to give a valid and fair reason renders probationary termination substantively unfair.
  • An employer terminating a probationary contract is exempt only from the Section 41 procedure, not from the substantive fairness requirements of Section 45.
  • A company's directors and officials are distinct legal persons and are wrongly enjoined where the employer is the company.

Court orders

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  1. 1.Suit against the 2nd and 3rd Respondents dismissed with no order as to costs
  2. 2.Declaration that termination of the Claimant's employment by the 1st Respondent was procedurally and substantively unfair
  3. 3.Compensation for unfair termination of employment of Kshs.300,000/= (three months' salary)
  4. 4.Salary arrears of Kshs.200,000/= for the two months worked
  5. 5.Awarded sum subject to statutory deductions as applicable at the date of termination
  6. 6.Costs of the suit to the Claimant, to be taxed on the lower scale
  7. 7.Interest on the awarded sum at Court rates from the date of the Judgment

Authorities

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Legislation

  • Employment ActSection 45(1) and (2)
  • Employment ActSection 2
  • Employment ActSection 41
  • Employment ActSection 42(1)
  • Employment ActSection 45(3)

Cases cited (1)

  • Samuel G. Momanyi – vs – Attorney General & Another
    [2012] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act (referenced through Sections 41, 42(1), 45(1) and (2) and 45(3)); no constitutional article expressly invoked

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, "theuri v Rhombus Construction Company Limited & 2 others (Cause E832 of 2023) [2025] KEELRC 1207 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1207/eng@2025-04-25

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