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ELRCPartially AllowedELRC Cause No. E717 of 2020· [2026] KEELRC 2470 (KLR)

Lilian Kaivilu v Kenya Yearbook Editorial Board

Employment & Labour Relations Court
21 September 2026
4,791 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~19 min to read original · ~4 min brief

The bottom line

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A Kenyan court awarded an employee Kshs 2.3 million after her employer's late probation extension was ruled void and her pregnancy-related mistreatment discriminatory.

What this practically means

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Executive summary

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The Claimant, a sub-editor employed by the Respondent state corporation on 23rd April 2018 at a gross salary of Kshs 121,085, served a six-month probation from 28th May 2018. During probation she suffered pregnancy complications, delivered a premature baby who died, and sought maternity leave and sick off, which were denied. By a letter dated 4th February 2019 the Respondent purported to extend her probation by three months on grounds of dismal performance, and by letter dated 17th April 2019 terminated her employment on seven days' notice for poor performance. The Respondent also counterclaimed Kshs 2 million, alleging she undertook private work in office hours, misused resources, changed an office computer's password and deleted files. The court found that the probation lapsed on 27th November 2018 without any communication of extension, whereupon the Claimant became automatically permanent and pensionable; the extension letter was of no consequence. No performance review or disciplinary hearing preceded termination, violating sections 41 and 45(2) of the Employment Act, and the denial of maternity leave and sick off to a claimant who had lost her baby was callous and discriminatory under Articles 27 and 28 of the Constitution. The counterclaim failed for want of any invoice, receipt, recovery report or proof. The court awarded one month's salary in lieu of notice, ten months' salary for unfair termination and Kshs 1 million for discrimination, totalling Kshs 2,331,935 less statutory deductions, with costs and interest to the Claimant. The counterclaim was dismissed.

Key legal issues

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01

Whether the Claimant was deemed confirmed upon lapse of probation

Holding

Yes - the probation lapsed on 27/11/2018 with no communication of extension, so she became automatically permanent and pensionable

Reasoning

The probation was to run six months from 28/5/2018, ending 27/11/2018. The Respondent wrote no letter at expiry; the extension letter of 4/2/2019 came after lapse. Section 42 permits extension only for a further six months and with the employee's agreement. No performance review within the six months justified extension. The extension letter was therefore of no consequence and the Claimant attained permanent status by operation of law.

p. 20
02

Whether the termination was unfair

Holding

Yes - no disciplinary hearing or performance review was conducted and the reason for termination lacked proof

Reasoning

The Claimant was terminated by letter dated 17/4/2019 for poor performance without any disciplinary hearing or performance review, contrary to section 41 of the Employment Act. The Respondent produced no evaluation report; its own witness admitted none existed. Under section 45(2), the employer failed to prove a valid and fair reason and fair procedure, rendering the termination unfair.

p. 22
03

Whether the Claimant was discriminated against on account of pregnancy

Holding

Yes - denial of maternity leave and sick off despite known pregnancy-related health complications amounted to discrimination and violation of dignity

Reasoning

The Claimant's request to proceed on maternity leave after a premature delivery at 28 weeks, in which the baby died, was denied on procedural grounds; she was also denied sick off and ordered to report to work. The Respondent knew of her health challenges. The court found this callous and awarded Kshs 1 million as damages for discrimination and unfair treatment under Articles 27 and 28 of the Constitution, which prohibit discrimination on grounds of pregnancy and health status.

p. 21
04

Whether the Respondent's counterclaim was proved

Holding

No - the counterclaim was speculative and dismissed for want of proof

Reasoning

The Respondent alleged the Claimant did private work in office hours, misused resources, changed a computer password and deleted files, causing a loss of about Kshs 2 million. RW1 admitted there was no evidence of the private work, no invoice or receipt for the Kshs 2 million, no data recovery report, and no evidence the computer was the one used by the Claimant. The counterclaim therefore remained speculative and was dismissed.

p. 22

Legal principles established

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  • Where an employer does not communicate an extension before the probationary period expires, the employee is deemed confirmed by operation of law
  • A purported extension of probation after expiry of the probationary period is of no legal consequence
  • Termination without a disciplinary hearing or performance review violates section 41 of the Employment Act and is unfair under section 45(2)
  • Denial of maternity leave and sick leave to a pregnant employee who lost her baby constitutes discrimination and indignity under Articles 27 and 28 of the Constitution

Court orders

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  1. 1.1 month's salary in lieu of notice of Kshs 121,085 awarded to the Claimant
  2. 2.10 months' salary (Kshs 1,210,850) awarded as compensation for unfair termination
  3. 3.Kshs 1 million awarded as damages for discrimination and unfair treatment under Articles 27 and 28 of the Constitution
  4. 4.Total award of Kshs 2,331,935 less statutory deductions
  5. 5.Respondent to pay costs of the suit with interest at court rates from the date of judgment
  6. 6.Respondent's counterclaim dismissed
Jurisdiction invoked
Employment and labour relations jurisdiction under Article 162(2) of the Constitution (implied; not expressly stated in the judgment)

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, "Lilian Kaivilu v Kenya Yearbook Editorial Board", Case Analysis (2026). ELRC Cause No. E717 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2470/eng@2026-09-21

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