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ELRCPartially AllowedNot stated in the judgment (Statement of Claim dated 18th November 2022)· [2025] KEELRC 2295 (KLR)

Githinji v Topcare Lands Investment Limited (Cause E844 of 2022) [2025] KEELRC 2295 (KLR)

Employment and Labour Relations Court
31 July 2025
1,390 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court ruled that an employee fired by text message over 'poor performance' was unlawfully terminated, winning Kshs. 800,000 plus costs.

What this practically means

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Executive summary

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The Claimant sued for compensation for unlawful termination of employment and terminal dues, asserting she was employed orally as General Manager on Kshs. 200,000 monthly from 3rd January 2022 and suspended indefinitely without pay by an SMS from the Respondent's CEO on 6th February 2022. The Respondent denied an employment relationship, contending the Claimant was merely on probation, performed poorly, and that the Kshs. 200,000 comprised one month's probation pay and one month's pay in lieu of notice. The court framed three issues: existence of an employment relationship, unlawfulness of termination, and entitlement to remedies. On the first, applying the statutory definition of a probationary contract in Section 2 of the Employment Act, the court held that an undocumented appointment cannot be probationary, and the payment, the General Manager role and the factors in Obonyo v Britam confirmed an employment relationship; the concept of sales commission raised for the first time in submissions was disregarded because parties are bound by their pleadings. On the second issue, applying KSRITAWU v Stanley Kinyanjui and Jane Samba Mkala, the court held that an employer alleging poor performance must notify the employee and allow a reasonable improvement period under an objective evaluation system; the Respondent conducted no performance review or capability hearing, so the termination was unlawful. The court awarded three months' salary in compensation (Kshs. 600,000) and one month's notice pay (Kshs. 200,000), totalling Kshs. 800,000, with interest at court rates from the date of judgment. Claims for salaries to termination and special damages were disallowed as unproved. The Claimant received the costs of the case.

Key legal issues

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01

Existence of an employment relationship

Holding

An employment relationship existed notwithstanding the Respondent's plea of probation, because the Claimant was paid Kshs. 200,000 for January 2022, held the definite role of General Manager, and no written probationary contract existed.

Reasoning

Section 2 of the Employment Act defines a probationary contract as one in writing and expressly stating it is probationary. The Claimant said she was employed orally and the Respondent led no contrary evidence. The payment of Kshs. 200,000 was unexplained by the Respondent, and the position of General Manager was not peripheral. Following Obonyo v Britam, control, integration and remuneration pointed to employment. The court also disregarded the concept of sales commission raised for the first time in submissions, as parties are bound by their pleadings.

p. 3
02

Lawfulness of termination

Holding

The termination was unlawful: no performance review or capability hearing preceded it, and an employee alleged to be performing poorly must be notified and given time to improve.

Reasoning

The employment was ended by an SMS on 6th February 2022 advising the Claimant not to report until further notice. The CEO never contacted her afterwards. Applying KSRITAWU v Stanley Kinyanjui, poor performance requires pointing out shortcomings and a reasonable 2-3 month improvement period; per Jane Samba Mkala, an employer must show an objective performance evaluation system. The Respondent conducted neither a performance review nor a capability hearing.

p. 4
03

Quantum of remedies

Holding

Three months' salary in compensation and one month's notice pay awarded; unpaid salaries and special damages disallowed as unproved.

Reasoning

In exercising discretion on compensation the court weighed the Claimant's short stint of about one month in employment against the Respondent's unlawful and premature ending of the relationship, its failure to issue a formal contract, and its failure to issue a termination letter. The salary claims beyond notice and compensation and the claim for special damages failed for want of proof.

p. 4

Legal principles established

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  • A probationary contract must be in writing and expressly state that it is for a probationary period; an undocumented employment cannot be recast as probationary.
  • An employer alleging poor performance must point out the shortcomings and give the employee a reasonable opportunity (2-3 months) to improve.
  • Parties are bound by their pleadings; matters not pleaded cannot be introduced in final submissions.

Court orders

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  1. 1.Three months' salary in compensation for unlawful termination (Kshs. 600,000)
  2. 2.One month's salary in lieu of notice (Kshs. 200,000)
  3. 3.Total judgment of Kshs. 800,000 with interest at court rates from the date of judgment until payment in full
  4. 4.The Claimant to have the costs of the case
Jurisdiction invoked
Jurisdiction under the Employment Act over an employment relationship 'capable of enforcement by this Court'

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, "Githinji v Topcare Lands Investment Limited (Cause E844 of 2022) [2025] KEELRC 2295 (KLR)", Case Analysis (2025). Not stated in the judgment (Statement of Claim dated 18th November 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2295/eng@2025-07-31

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