Wanjigi v Superfoam Pty Ltd (Civil Appeal E029 of 2023) [2025] KEELRC 1379 (KLR)
The bottom line
#Kenya's Employment Court confirmed that even probationary employees must be heard before termination, and employers must prove poor performance with real evidence.
What this practically means
#Executive summary
#Key legal issues
#Procedural fairness of termination of a probationary employee
The termination of the appellant's contract while on probation was procedurally unfair for non-compliance with section 41 of the Employment Act, section 42 having been declared unconstitutional.
The respondent argued that section 42 of the Employment Act exempted probationary contracts from the section 41 hearing requirements. The court noted the appellant was engaged in June 2015 on 3 months' probation and questioned his status after probation. Relying on Monica Munira Kibuchi as upheld by the Court of Appeal in Red Lands Roses, the court held that even if the appellant was on probation, he was entitled to a hearing before termination.
Substantive fairness of the reason for termination (poor performance)
The reason for termination was not validly proved; the termination fell short of valid reasons and procedure and was unfair.
Under section 43 of the Employment Act the employer must prove the reason for termination. The termination letter merely stated 'very poor performance' with no evidence of performance evaluation. The court held there must be proof of fair evaluation criteria, discussion with the employee, demonstration of measures to assist improvement, and a hearing before termination.
Reliefs: compensation for unfair termination
The appellant was awarded one month's notice pay and compensation equivalent to two months' salary, totalling Kshs. 210,000.
On finding unfair termination, the court exercised its discretion under section 49 of the Employment Act, taking into account that the claimant had served only 5 months. On the evidence, and in the absence of proof to the contrary, the court found an oral contract of 2 years existed. The commission claim failed for want of proof of the alleged sales.
Legal principles established
#- Section 42 of the Employment Act, which exempts probationary contracts from the procedural requirements of section 41, has been declared unconstitutional; probationary employees are entitled to procedural fairness before termination.
- A termination for poor performance requires proof of a fair evaluation criterion, discussion with the employee, measures to assist improvement, and a hearing.
Court orders
#- 1.The appeal is allowed
- 2.The judgment of the Chief Magistrate Hon. P.N. Gesora delivered on 28/05/2020 in CMEL: 216 of 2018 is set aside
- 3.Judgment entered for the claimant against the respondent: termination of employment held unfair
- 4.Notice pay for lack of procedural fairness awarded at Kshs. 70,000
- 5.Compensation for unfair termination equivalent of 2 months' salary awarded at Kshs. 140,000
- 6.Total award of Kshs. 210,000 payable with interest at court rate from date of judgment
- 7.Costs of the suit awarded to the claimant
- 8.Costs of the appeal to the appellant
- 9.Stay granted for 30 days
- On appeal from
- Chief Magistrates Court Nairobi
- CMEL No. 216 of 2018
- Jurisdiction invoked
- First appellate jurisdiction of the Employment and Labour Relations Court over appeals from the Chief Magistrates Court (ELRC)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Wanjigi v Superfoam Pty Ltd (Civil Appeal E029 of 2023) [2025] KEELRC 1379 (KLR)", Case Analysis (2025). CMEL No. 216 of 2018 (Appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1379/eng@2025-05-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.