Oyombe v Economic & Social Rights Centre (Haki Jamii) (Employment and Labour Relations Cause E553 of 2023) [2025] KEELRC 2303 (KLR)
The bottom line
#Kenya's Employment Court ruled that letting an employee keep working past probation confirms their contract, and breaking promised benefits forces the employer to pay.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Claimant's contract was constructively confirmed after the lapse of the three months probationary period.
- 2.Whether the Claimant's contract was terminated unfairly on account of constructive dismissal.
- 3.Whether the Claimant is entitled to the various reliefs she claims through these proceedings.
- 4.Whether the Respondent is entitled to the reliefs it claims through the counter-claim.
Key legal issues
#Constructive confirmation of contract upon lapse of probation
The three-month probationary term, with no provision for extension and no consent to extension, expired and the employer was bound to confirm or terminate; by acquiescing to continued service, it constructively confirmed the contract
The parties agreed on three months' probation with no extension clause. Section 42 of the Employment Act caps probation but parties may agree to a lesser term. Since the claimant never consented to any extension, the respondent had to confirm or discharge her at expiry. By letting her continue working, it impliedly confirmed her engagement by operation of law, and the obligation to confirm did not depend on any request by the claimant.
Constructive dismissal
The respondent's failure to increase salary, activate pension and provide medical cover amounted to repudiatory breach; the claimant's resignation constituted constructive dismissal
Constructive dismissal arises where an employee resigns owing to an intolerable work environment created by the employer, the law treating the employer as the terminator. The respondent failed to effect benefits that had crystallised upon constructive confirmation. Its 'availability of funds' defence was unfounded because the contract only made salary review above Ksh. 200,000 and renewal subject to funds. Timing near contract expiry did not defeat the claim.
Respondent's counter-claim for three months' notice pay
Counter-claim dismissed; the parties varied the HR Manual notice period to one month and a constructively dismissed employee may leave without notice
The contract reduced the notice requirement in the Human Resource Manual from three months to one month, so the respondent could not demand three months' notice pay. Further, with only one month of the term remaining, three months' notice was impracticable, and an employee leaving on constructive dismissal is entitled to leave with or without notice.
Legal principles established
#- Where an employer neither confirms nor terminates an employee's contract after expiry of the agreed probationary period but allows the employee to continue working, the contract is constructively confirmed by operation of law
- Failure by an employer to implement benefits due on confirmation of employment (salary increment, pension, medical cover) constitutes repudiatory breach entitling the employee to resign and plead constructive dismissal
- An employee leaving employment on account of constructive dismissal is entitled to leave with or without notice
Court orders
#- 1.Declaration that the Respondent irregularly terminated the Claimant's contract through constructive dismissal
- 2.Compensation for unfair termination equivalent to one month's salary, Ksh. 200,000.00
- 3.Salary for April 2023 declined
- 4.Award of underpaid salary of Ksh. 140,000.00
- 5.Award of Ksh. 124,761.00 as reimbursement for alternative medical cover
- 6.Award of Ksh. 180,000.00 on account of unremitted pension funds
- 7.Interest on the amount awarded at court rates from the date of institution of the suit
- 8.Amount awarded subject to statutory deductions where applicable
- 9.Respondent to issue the Claimant with a Certificate of Service
- 10.Respondent's counter-claim dismissed
- 11.Claimant awarded costs of both the primary suit and the counter-claim
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction (Article 162(2)(a) as implied); Employment Act
Relief refused
#Salary for the month of April 2023
Would amount to double compensation as the remaining one month of the contract was already compensated
Compensation equivalent to twelve months' salary
Contract was terminated only one month before expiry and there was no agreement on renewal
Costs
The Claimant is awarded costs of both the primary suit and the counter-claim.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
When the Respondent acquiesced to the Claimant's continued service after the probation period had lapsed, it impliedly confirmed her engagement. As such, her contract was constructively confirmed by operation of law.
The court finds that the Respondent irregularly terminated the Claimant's contract of service through constructive dismissal from employment.
The Respondent's counter-claim is dismissed.
The Claimant is awarded costs of both the primary suit and the counter-claim.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Oyombe v Economic & Social Rights Centre (Haki Jamii) (Employment and Labour Relations Cause E553 of 2023) [2025] KEELRC 2303 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2303/eng@2025-07-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.