Khagali v Music Copyright Society of Kenya (Cause E1071 of 2023) [2025] KEELRC 1449 (KLR)
The bottom line
#Kenya's Employment Court confirmed that firing an employee on or after a lapsed probation without notice or a hearing is unfair, awarding the employee over Kshs 565,000.
What this practically means
#Executive summary
#Key legal issues
#Whether termination of a probationary employee without notice or hearing is unfair
Yes - probationary employees are entitled to notice and procedural fairness; further, the Claimant's probation having lapsed, he was confirmed by operation of law and the termination was unfair
The court held that a probationary contract does not oust constitutional and statutory fair-labour protections, citing Monica Munira v Mount Kenya University which declared Section 41(2) unconstitutional in so far as it excludes probationers. It further found that the extended probation lapsed on 9th April 2023 while dismissal occurred on 30th October 2023, so the Claimant stood confirmed by operation of law. The Respondent's admission that no hearing was given confirmed unfair termination.
Whether the Claimant was entitled to one month's pay in lieu of notice
Allowed - RW1 confirmed no notice was issued nor paid in lieu, despite the HR manual requirement
The Respondent's witness conceded in cross-examination that the HR manual required one month's notice, but the Claimant was not given notice nor paid in lieu. The court treated this as admitted and allowed the claim as prayed.
Whether the Claimant proved the claim for pending allowances and per diems of Kshs. 949,000/-
Dismissed - not proven
Although committee appointment letters were produced, they attached no payments to the appointments. Payment requests were approved nearly a year before dismissal, and no additional evidence showed they went unpaid. The court thus found the per diem claim unproven.
Legal principles established
#- Where an extended probationary period lapses without confirmation or further extension, the employee stands confirmed by operation of law and is entitled to full procedural fairness under the Employment Act before termination.
- Employees on probation are entitled to both notice and procedural fairness just like any other workers.
Court orders
#- 1.A declaration that the Claimant's termination was unfair and unlawful
- 2.1 month's salary in lieu of notice at Kshs. 113,100/-
- 3.4 months' salary as compensation for the unfair termination at Kshs. 452,400/-
- 4.The Respondent shall bear the costs of the suit and interest from the date of this judgment until payment in full
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (original jurisdiction over employment disputes)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Khagali v Music Copyright Society of Kenya (Cause E1071 of 2023) [2025] KEELRC 1449 (KLR)", Case Analysis (2025). Cause No E1071 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1449/eng@2025-05-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.