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ELRCPartially AllowedStatement of Claim dated 8th November 2023· [2025] KEELRC 2533 (KLR)

Kirema v Brand Design Developers Limited (Cause E915 of 2023) [2025] KEELRC 2533 (KLR)

Employment and Labour Relations Court
25 September 2025
LNLINNET NDOLO
1,977 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ruled that firing a probationer for business losses is really a redundancy, awarding the employee Kshs. 480,000.

What this practically means

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Executive summary

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The Claimant, employed as a Senior Account Manager by the Respondent on 17th February 2023 under a four-month probationary contract, received a letter dated 14th July 2023 referenced 'Notice for Non-Confirmation on Probation', giving her two weeks' notice with her last working day as 31st July 2023. She sued, alleging unlawful and unfair termination, withheld July 2023 salary, breach of the redundancy provisions of Section 40 of the Employment Act, and failure to issue a certificate of service, seeking reinstatement, twelve months' salary as compensation, withheld salary, a P9 Form, punitive damages and costs. The Respondent defended the termination as a lawful exercise of its right under Section 42(4) of the Employment Act to terminate a probationary contract on notice, attributing the decision to a sudden loss of corporate retainer clients, and asserting it had issued the certificate of service and was willing to issue the P9 Form. The court framed two issues: whether the termination was lawful and fair, and whether the Claimant was entitled to the remedies sought. Applying Luke Kinyua Kamunti v Amigos Nuts and Commodities Limited, the court found that although the letter referenced non-confirmation, the stated reason was significant loss of business, giving the termination the hallmarks of redundancy; none of the Section 40 conditions were met, so the termination was unlawful and unfair. Reinstatement having been abandoned, the court awarded three months' salary (Kshs. 480,000), subject to statutory deductions and interest from judgment, with claims for withheld salary, P9 Form and certificate of service rendered moot, and punitive damages dismissed for want of evidence. The Claimant obtained the costs of the case.

Key legal issues

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01

Whether the termination of the Claimant's employment was lawful and fair

Holding

The termination was unlawful and unfair; although dressed as non-confirmation on probation, it was in substance a redundancy effected without compliance with Section 40 of the Employment Act

Reasoning

The letter of 14th July 2023, though referenced as notice for non-confirmation on probation, gave as the reason 'significant loss of business'. Following Luke Kinyua Kamunti v Amigos Nuts and Commodities Limited, termination on account of loss of business is a redundancy, not an ordinary probationary termination. None of the Section 40 conditions (notice to the employee and labour officer, consultation, one month's notice, severance pay) were met, so the termination was unlawful and unfair.

p. 5
02

Whether the Claimant is entitled to the remedies sought

Holding

Partially; three months' salary in compensation awarded, with other claims moot, abandoned or unsupported

Reasoning

Reinstatement was abandoned in final submissions. The court awarded three months' salary, considering the short stint in service, the Respondent's unlawful conduct, the Claimant's non-contribution to the termination and her slim chances of securing alternative employment of equal stature. Claims for withheld salary, P9 Form and certificate of service were moot as they had been satisfied; punitive damages lacked evidential support.

p. 5

Legal principles established

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  • Termination of employment at the end of probation must be preceded by an objective appraisal of the employee's performance
  • Where an employer terminates a probationary contract for loss of business rather than performance, the termination takes on the character of redundancy and must comply with Section 40 of the Employment Act

Court orders

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  1. 1.Judgment entered in favour of the Claimant in the sum of Kshs. 480,000 being three months' salary in compensation for unlawful and unfair termination of employment
  2. 2.The award is subject to statutory deductions and attracts interest at court rates from the date of judgment until payment in full
  3. 3.The Claimant awarded the costs of the case

Authorities

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Legislation

  • Employment ActSection 17
  • Employment ActSection 40
  • Employment ActSection 42(4)
  • Employment ActSection 51(3)
  • Employment ActSection 2
  • Labour Relations ActDefinition of redundancy (corresponding provision)
  • Constitution of KenyaNot specified

Cases cited (1)

  • Luke Kinyua Kamunti v Amigos Nuts and Commodities Limited
    [2019] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act and Labour Relations Act (employment dispute)

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, "Kirema v Brand Design Developers Limited (Cause E915 of 2023) [2025] KEELRC 2533 (KLR)", Case Analysis (2025). Statement of Claim dated 8th November 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2533/eng@2025-09-25

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