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ELRCPartially AllowedNot stated in the judgment

Oyombe v Economic & Social Rights Centre (Haki Jamii) (Employment and Labour Relations Cause E553 of 2023) [2025] KEELRC 2303 (KLR)

Employment and Labour Relations Court
31 July 2025
4,244 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The Claimant sued the Respondent alleging constructive dismissal. She was employed on a one-year fixed term contract effective 16th May 2022 with a three-month probation period, on a salary of Ksh. 180,000, rising to Ksh. 200,000 upon confirmation, together with pension contributions and a medical cover. The Respondent never confirmed her contract after probation, did not increase her salary, did not establish a pension scheme, and did not provide a functional medical cover. She resigned in April 2023, one month before the contract's expiry by effluxion of time, and pleaded constructive dismissal. The Respondent denied the claim, contending that confirmation and the benefits were subject to availability of funds, that there was no deadline for confirmation, and counter-claimed Ksh. 360,000 as notice pay for failure to give three months' notice per its HR Manual. The court framed four issues and held that the agreed probationary term expired without extension or consent to extension, so the Respondent was bound to confirm or terminate; by acquiescing to continued service it constructively confirmed the contract by operation of law. The failure to implement the salary increment, pension and medical cover constituted repudiatory breach; the 'availability of funds' defence was unfounded since the contract only made salary review above Ksh. 200,000 and renewal subject to funds. The resignation therefore amounted to constructive dismissal. The court declared the termination unfair, awarded Ksh. 200,000 compensation (one month), Ksh. 140,000 underpaid salary, Ksh. 124,761 medical reimbursement, Ksh. 180,000 unremitted pension, interest, statutory deductions, a certificate of service, and costs. The April 2023 salary claim was declined as double compensation, and the counter-claim was dismissed.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Claimant's contract was constructively confirmed after the lapse of the three months probationary period.
  2. 2.Whether the Claimant's contract was terminated unfairly on account of constructive dismissal.
  3. 3.Whether the Claimant is entitled to the various reliefs she claims through these proceedings.
  4. 4.Whether the Respondent is entitled to the reliefs it claims through the counter-claim.

Key legal issues

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01

Constructive confirmation of contract upon lapse of probation

Holding

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

Reasoning

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.

p. 3
02

Constructive dismissal

Holding

The respondent's failure to increase salary, activate pension and provide medical cover amounted to repudiatory breach; the claimant's resignation constituted constructive dismissal

Reasoning

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.

p. 6
03

Respondent's counter-claim for three months' notice pay

Holding

Counter-claim dismissed; the parties varied the HR Manual notice period to one month and a constructively dismissed employee may leave without notice

Reasoning

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.

p. 7

Legal principles established

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  • 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

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  1. 1.Declaration that the Respondent irregularly terminated the Claimant's contract through constructive dismissal
  2. 2.Compensation for unfair termination equivalent to one month's salary, Ksh. 200,000.00
  3. 3.Salary for April 2023 declined
  4. 4.Award of underpaid salary of Ksh. 140,000.00
  5. 5.Award of Ksh. 124,761.00 as reimbursement for alternative medical cover
  6. 6.Award of Ksh. 180,000.00 on account of unremitted pension funds
  7. 7.Interest on the amount awarded at court rates from the date of institution of the suit
  8. 8.Amount awarded subject to statutory deductions where applicable
  9. 9.Respondent to issue the Claimant with a Certificate of Service
  10. 10.Respondent's counter-claim dismissed
  11. 11.Claimant awarded costs of both the primary suit and the counter-claim

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Employment and Labour Relations Court jurisdiction (Article 162(2)(a) as implied); Employment Act

Relief refused

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Salary for the month of April 2023

Would amount to double compensation as the remaining one month of the contract was already compensated

p. 8

Compensation equivalent to twelve months' salary

Contract was terminated only one month before expiry and there was no agreement on renewal

p. 6

Costs

The Claimant is awarded costs of both the primary suit and the counter-claim.

Quotable passages

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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.
p. 4Constructive confirmation of employment after probation
The court finds that the Respondent irregularly terminated the Claimant's contract of service through constructive dismissal from employment.
p. 8Final finding on constructive dismissal
The Respondent's counter-claim is dismissed.
p. 8Dismissal of counter-claim
The Claimant is awarded costs of both the primary suit and the counter-claim.
p. 8Costs order

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, "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.