Issar v Prime Steel Mill Limited (Employment and Labour Relations Cause 146 of 2019) [2025] KEELRC 3005 (KLR)
The bottom line
#A Kenyan court awarded a dismissed HR director Kshs 2.1 million after finding her termination came after probation had already expired, making it unlawful.
What this practically means
#Executive summary
#Key legal issues
#Unlawful and unfair termination after lapse of probation
Termination was unlawful and unfair; the Respondent falsely believed the Claimant was still on probation, and the purported performance review was without notice and improperly conducted
The written contract contained no probation clause, and the Claimant testified the 3-month probation ended on 2nd March 2018. The Respondent terminated on the basis of an unsuccessful probation review conducted on 25th May 2018 without notice. No valid reason under section 43 was established and no fair procedure under section 41 was followed. The Respondent called no witness to contradict the Claimant's testimony.
Effect of clearance certificate repudiating claims
The certificate not to claim was not a bar; the Claimant's uncontradicted evidence of duress was accepted
The Claimant admitted signing a clearance certificate dated 16/7/2018 indicating no claims would be made, but testified she signed under duress to obtain her terminal dues. The Respondent led no evidence to contradict this credible testimony, so the certificate did not defeat the claim.
Quantum of compensation
Five months' gross salary awarded as compensation under section 49(1)(c) and (4)
The court applied section 49(4) factors: circumstances of termination, remaining 19 months of a two-year fixed contract, good salary, and the aggravating factor that the Respondent terminated the Claimant while she was injured and uncompensated. Following the Court of Appeal in Naimas Khamis, five months' salary was appropriate.
Jurisdiction over work injury claims
The ELRC has no original jurisdiction over WIBA claims; those must go to the Director (OSH)
Relying on Supreme Court decisions, the court held that WIBA vests exclusive original jurisdiction over work injury compensation claims in the Director of Occupational Safety and Health Services, with the ELRC hearing only appeals from or enforcement of the Director's decisions. The work injury and special damages claims were dismissed for want of jurisdiction.
Legal principles established
#- The Director of Occupational Safety and Health Services holds exclusive original jurisdiction to adjudicate WIBA compensation claims; the ELRC has jurisdiction only on appeal or enforcement
- Termination premised on a probationary period that had already lapsed is without valid reason and unlawful under sections 41, 43 and 45 of the Employment Act
Court orders
#- 1.Compensation for unlawful termination of employment in the sum of Kshs. 1,750,000
- 2.Unpaid one month salary in lieu of notice in the sum of Kshs. 350,000.00 (total Kshs. 2,100,000.00)
- 3.Interest at court rates from date of judgment till payment in full
- 4.Costs of the suit to the Claimant
- 5.Dismissal of the other special and general damages claimed for lack of jurisdiction and lack of merit
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act 2007; WIBA claims reserved to the Director of Occupational Safety and Health Services
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Issar v Prime Steel Mill Limited (Employment and Labour Relations Cause 146 of 2019) [2025] KEELRC 3005 (KLR)", Case Analysis (2025). Not stated in judgment (memorandum of claim filed 6/3/2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/3005/eng@2025-10-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.