Luseno v Izon Future Sysytems (Cause 1440 of 2017) [2025] KEELRC 1282 (KLR)
The bottom line
#A Mombasa court ruled an employee's summary dismissal unfair because the employer had no written contract, no hearing, and no proof of poor performance.
What this practically means
#Executive summary
#Key legal issues
#Whether the Claimant was on probation and therefore outside statutory protection
The Respondent failed to prove the alleged probation policy; the Claimant was not on probation and was entitled to the protections of the Employment Act.
The Respondent asserted a policy of three months' probation plus three months' performance evaluation but produced no policy document, no evidence the policy was explained to the Claimant, and no written contract. Under section 10para 7 of the Employment Act the burden lay on the employer, and a bald assertion unsupported by evidence could not discharge that burden. The court declined to decide the retroactivity of the Monica Munira Kibuchi decision since the probation finding disposed of the point.
Procedural fairness of the dismissal
The termination violated section 41 of the Employment Act and was procedurally unfair.
Section 41 mandates notification of the grounds, an adequate opportunity to be heard with accompaniment, and consideration of representations. Although the Respondent alleged a show-cause email dated 3rd July 2017, no evidence showed a disciplinary meeting ever occurred; there were no minutes and no termination letter conveying the decision and reasons. The mandatory procedure was therefore not followed.
Substantive justification for the summary dismissal
Neither the failure to produce certificates nor alleged poor performance was a valid and fair reason; the dismissal was substantively unfair.
Under sections 43 and 45(2), the employer must prove fair and valid reasons. Failure to produce certificates did not fall within the gross misconduct catalogue in section 44(4), especially as the employer hired the Claimant knowing the originals were lost to fire and set no timelines for production. On poor performance, the Respondent proved no performance targets or evaluation policy; its witness admitted having nothing to demonstrate set targets. The high standard of proof in Jane Samba Mukala, approved in National Bank of Kenya v Samuel Nguru, was not met.
Remedies under section 49[1][c]
The Claimant received a declaration of unfair termination, two months' gross salary (Kshs. 204,000) as compensation, costs, and interest from the date of judgment.
Compensation under section 49para 1[c] is discretionary. The court considered the procedural and substantive unfairness, the absence of equity and justice in imposing summary dismissal, the short length of engagement, and the Respondent's unexplained failure to issue a termination letter despite requests, an act amounting to an unfair labour practice. It fixed compensation at two months' gross salary. Notice pay under sections 35 and 36 was also found due but does not appear in the final orders.
Legal principles established
#- An employer's failure to prepare a written employment contract as required by the Employment Act may estop it from taking advantage of that omission, and an employment contract may exist in written or oral form.
- Section 41 of the Employment Act prescribes a mandatory three-component procedure before termination: notification, hearing, and consideration of representations.
- An employer asserting that an employee was on probation bears the burden of proving that assertion on a balance of probabilities under section 10para 7 of the Employment Act.
- Failure to avail original academic certificates, where the employer employed the employee knowing of and indulging the absence of the documents without setting timelines, does not amount to gross misconduct justifying summary dismissal under section 44para 4.
- For termination on grounds of poor performance, the employer must prove a performance evaluation policy or measures and afford the employee an opportunity to respond, bearing a high level of proof.
Court orders
#- 1.A declaration that the summary dismissal against the Claimant was both procedurally and substantively unfair.
- 2.Two [2] months' gross salary as compensation for unfair termination under section 49[1][c] of the Employment Act, Kshs. 204,000.00.
- 3.Cost of the suit.
- 4.Interest on the awarded sum in [ii] above, at court rates from the date of the judgment till full payment.
- Jurisdiction invoked
- Original jurisdiction under the Employment Act, 2007 (unfair termination claim; sections 35, 36, 41, 42, 43, 44, 45, 49[1][c] and 10[7] applied)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Luseno v Izon Future Sysytems (Cause 1440 of 2017) [2025] KEELRC 1282 (KLR)", Case Analysis (2025). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1282/eng@2025-05-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.