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ELRCPartially AllowedCause No 34 of 2020· [2025] KEELRC 2011 (KLR)

Kamau v Kenya Obstetrical and Gynaecological Society (Cause 34 of 2020) [2025] KEELRC 2011 (KLR)

Employment and Labour Relations Court
25 June 2025
DMD. K. Njagi Marete
1,348 words in judgment
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The bottom line

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Kenya's Employment Court ruled that once probation lapses without extension, an employee is automatically confirmed and firing them without a fair hearing is unlawful.

What this practically means

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Executive summary

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The Claimant, employed on 8th July 2019 as Project Manager on a three-month probation at Kshs.110,000 per month, had her probation extended by a further three months to expire on 1st January 2020. She was terminated on 14th January 2020 for poor and unsatisfactory performance following a review panel that excluded her immediate supervisor and the Chief Executive Officer. She claimed she had been automatically confirmed upon lapse of probation, and sought declarations of unfair termination, reinstatement, accrued salaries, 2½ years' salary equivalent, compensation, notice pay, costs and interest. The Respondent denied the claim, asserting performance was below par and termination was contractually justified. The court framed four issues: whether the Claimant was on probation at termination; whether termination was wrongful, unfair and unlawful; entitlement to relief; and costs. On the first, the court found it undisputed that probation lapsed on 1st January 2020 without extension, so the Claimant was a confirmed employee when terminated. On the second, the court held the termination letter cited no specific performance failures, the review panel was improperly constituted, and the Claimant was denied a fair hearing, breaching section 41 of the Employment Act; the termination was wrongful, unfair and unlawful. The claim was allowed in part: one month's salary in lieu of notice (Kshs.110,000) and eight months' compensation (Kshs.880,000), totalling Kshs.990,000, with costs to the Respondent. Reinstatement and the other monetary heads were not granted.

Key legal issues

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01

Whether the Claimant was still on probation when terminated

Holding

She was a confirmed employee; the probation lapsed on 1st January 2020 and was not extended.

Reasoning

The court noted it was not in dispute that the probation period lapsed on 1st January 2020 and was not extended. Section 42(2) of the Employment Act limits probation to six months, and the Claimant relied on authority that failure to confirm after probation implies automatic confirmation. Termination on 14th January 2020 was therefore post-probation.

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02

Whether the termination was wrongful, unfair and unlawful

Holding

Yes. No valid reason was proved and the procedure was flawed.

Reasoning

The termination letter cited no specific performance failures, the review panel excluded the Claimant's direct supervisors and the CEO, and she was not given an opportunity to defend herself. The employer failed to prove poor performance with clear metrics, rendering the termination substantively and procedurally unfair under sections 41 and 43 of the Employment Act framework.

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03

Entitlement to relief

Holding

The Claimant was entitled to relief following proof of unfair termination.

Reasoning

Having established wrongful, unfair and unlawful termination, the Claimant became entitled to relief. The court awarded one month's salary in lieu of notice and eight months' salary as compensation for unlawful termination, but did not grant reinstatement, accrued salaries or the 2½ years' salary equivalent claimed.

p. 3

Legal principles established

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  • Where a probationary period lapses without extension, the employee is a confirmed employee at the time of any subsequent termination.
  • Termination for poor performance must be supported by valid reasons and a fair procedure, including notification of specific failures and an opportunity to be heard.

Court orders

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  1. 1.One (1) month's salary in lieu of notice of Kshs.110,000.00
  2. 2.Eight (8) months' salary as compensation for unlawful termination of Kshs.880,000.00
  3. 3.Total award of Kshs.990,000.00
  4. 4.The costs of this cause to be borne by the Respondent

Authorities

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Legislation

  • Employment Act, 2007section 42(1)
  • Employment Act, 2007section 42(2)
  • Employment Act, 2007section 41
  • Employment Act, 2007section 2
  • Constitution of Kenya, 2010Articles 24, 41, 47

Cases cited (3)

  • Oduor v Kalvinder Singh Bhullar
    [2024] KEELRC 847
  • Monica Munira Kibuchi v Mount Kenya University
    [2021]
  • Mary Wairimu Njuguna v KPLC
    [2018] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (claim for unfair and wrongful termination)

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, "Kamau v Kenya Obstetrical and Gynaecological Society (Cause 34 of 2020) [2025] KEELRC 2011 (KLR)", Case Analysis (2025). Cause No 34 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2011/eng@2025-06-25

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