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IndustrialStruck OutNot stated in the judgment· [2014] KEIC 134 (KLR)

Gilo v Computer Pride Limited (Cause 1062 of 2012) (Employment and Labour) [2014] KEIC 134 (KLR)

Industrial Court of Kenya
8 January 2014
NMNzioki wa Makau
856 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Industrial Court struck out an unfair dismissal suit because probationary contracts can be lawfully terminated on seven days' notice without a hearing.

What this practically means

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Executive summary

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The Respondent raised a preliminary objection dated 2nd August 2012 seeking to strike out the Claimant's suit on the ground that it offended Sections 42(1), 45(3) and 47(6) of the Employment Act 2007. The Claimant alleged he was employed under two contracts both dated 1st February 2010 - a one-year contract and a three-month contract. The Respondent's position was that the three-month contract ran its full course (so no dismissal occurred) and the one-year contract was terminated during probation, taking it outside the category of terminations that can ground a suit. The Court, adopting the Mukisa Biscuits definition of a preliminary objection as a pure point of law akin to a demurrer, held the objection was properly before it since it required no ascertainment of facts or exercise of discretion. Applying Section 42 of the Employment Act, the Court found that a probationary contract may be terminated on seven days' notice or payment in lieu, that the contract terminated during probation was lawfully extinguished within its terms, and that no cause of action arises on a contract served to its conclusion. Following the reasoning in Joseph Muthama Ndambuki & Others v Delmonte (K) Ltd, the Court warned itself that striking out a suit is draconian, but found the suit disclosed no cause of action. The preliminary objection succeeded, the suit was struck out with costs to the Respondent.

Key legal issues

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01

Whether a suit over contracts terminated during probation and on expiry discloses a cause of action

Holding

The suit discloses no cause of action; one contract was served to its conclusion and the other was lawfully terminated during probation with payment in lieu of notice, disentitling the Claimant to relief.

Reasoning

Under Section 42 of the Employment Act, section 41 protections do not apply to probationary contracts, which may be terminated on seven days' notice or payment in lieu. One of the Claimant's contracts ran its full course, and the other was terminated during probation within its terms. Neither contract therefore supports a claim for dismissal. Applying the Mukisa Biscuits test, the objection was a pure point of law that disposed of the suit.

p. 2
02

Definition and scope of a preliminary objection

Holding

A preliminary objection is a pure point of law argued on the assumption that the facts pleaded are correct, which if successful disposes of the suit.

Reasoning

The Court adopted the classic definitions in Mukisa Biscuits Manufacturing Co Ltd v West End Distributors Ltd, noting the objection is akin to a demurrer. The Respondent's objection qualified because it raised a question of law (statutory bar under the Employment Act) and did not require ascertainment of facts or exercise of judicial discretion.

p. 2

Legal principles established

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  • No cause of action for dismissal lies in respect of a contract duly served to its conclusion, and a contract terminated during probation in accordance with its terms (by notice or payment in lieu) is lawfully extinguished.

Court orders

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  1. 1.The suit is struck out
  2. 2.Costs to the Respondent

Authorities

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Legislation

  • Employment Act 2007Section 42(1)-(4)
  • Employment Act 2007Sections 45(3) and 47(6)

Cases cited (2)

  • Mukisa Biscuits Manufacturing Co. Ltd v. West End Distributors Ltd
    [1969] E.A. 696
  • Joseph Muthama Ndambuki & Others v. Delmonte (K) Ltd
    [2012] eKLR
Jurisdiction invoked
Employment and labour relations jurisdiction under the Employment Act 2007

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, "Gilo v Computer Pride Limited (Cause 1062 of 2012)  (Employment and Labour) [2014] KEIC 134 (KLR)", Case Analysis (2014). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keic/2014/134/eng@2014-01-08

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