Lilian Kaivilu v Kenya Yearbook Editorial Board

f) Interest. g) Costs. Claimant’s Case 2 The Claimant avers that she was employed by the Respondent, a state corporation established under the State Corporations Act, as a sub-editor vide a letter of appointment dated 23rd April 2018, following what she describes as a vigorous but successful interview process. She reported for duty on 28th May 2018 earning a gross monthly salary of Kshs. 121,085. 3 She contends that she served diligently, dutifully and professionally throughout her probation period, which was to run for six months or such extended period as the Respondent deemed necessary, with confirmation contingent upon satisfactory performance. 4 It is the Claimant’s case that at no point during this probation period was she evaluated or assessed by her supervisor or any other senior officer of the Respondent. 5 The Claimant avers that on or about 28 th November 2018, she was placed on a two-week bed rest by her doctor, which was later extended by a month, subsequently, she delivered a premature baby whom she lost on the same day. Page 2 of 25

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6 She states that her doctor thereafter extended her sick-off and advised her to proceed on full maternity leave, a fact she duly communicated to the Respondent. 7 She asserts that while still on maternity leave, the Respondent's Human Resource Officer called to inform her that the Chief Executive Officer had directed that she reports back to work; that she attempted to comply but was unable to continue due to her ill health, weakness and emotional fatigue, a position she communicated by email to the Human Resource Officer, noting that she remained within her doctor's prescribed maternity period. 8 It is her case that on or about 18th February 2019, she was summoned to collect a letter dated 4 th February 2019 purporting to extend her probation for three months with effect from 1st February 2019, on the stated ground that a performance review had shown she had performed dismally and failed to handle her duties and responsibilities. 9 The Claimant avers that she was neither evaluated nor assessed by her supervisor or any senior officer to warrant such a conclusion, and that she did not participate in any review, assessment or evaluation conducted through any known or acceptable method, though she states that she nonetheless responded elaborately to the Respondent's letter. Page 3 of 25

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10 The Claimant further avers that by the time the Respondent purported to extend her probation, she had already attained the status of a permanent and pensionable employee and was therefore no longer on probation, a fact she contends is buttressed by the Respondent's commencement of deductions towards her pension contributions. 11 It is her case that the Respondent, by a letter dated 17 th April 2019, terminated her employment on seven days' notice on the stated ground that she had not met the Respondent's expectations, without involving her in any assessment or evaluation and without affording her a hearing. 12 She contends that her termination was unfair, unprocedural, unlawful and discriminatory, and that the Respondent has further failed to pay her one month's salary in lieu of notice. Respondent’s Case 13 In opposition to the claim, the Respondent filed an Amended Memorandum of Response and Counterclaim dated 10th August 2021; and its Response to the Amended Statement of Claim dated 3rd June 2024. 14 The Respondent denied the Claimant’s allegations of unlawful termination and maintained that, Page 4 of 25 save for

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matters expressly admitted, the Claimant was put to strict proof of her claim. 15 It admitted engaging the Claimant as a Sub-Editor pursuant to the letter of appointment dated 23 rd April 2018 and acknowledged that she reported to work on 28 th May 2018. 16 However, it disputed the allegations relating to the Claimant’s performance, contending that the probation Claimant’s and termination, performance was continuously monitored and evaluated throughout the probationary period and was found to be unsatisfactory. 17 The Respondent pleaded that owing to the Claimant’s below-par performance, it lawfully exercised its contractual discretion to extend her probationary period by a further three months. 18 It maintained that the extension was necessitated by the Claimant’s failure to attain the required performance standards and reiterated that the subsequent termination of her employment arose solely from her unsatisfactory performance during the probationary period. According to the Respondent, the termination was effected in accordance with Section 42(4) of the Employment Act, which governed probationary contracts at the material time. Page 5 of 25

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19 The Respondent further denied the Claimant’s assertions that the termination was unlawful or otherwise actionable and maintained that the dismissal was based entirely on poor performance during probation rather than any unlawful or discriminatory consideration. Consequently, it urged the Court to dismiss the Claimant’s claim with costs. 20 By way of counter claim, the Respondent avers that during the pendency of the Claimant's employment, she acted in utter breach of her contract of employment by undertaking private assignments during office hours. It further contends that the Claimant illegally used the Respondent's resources to carry out her private assignments without any permission or authority. 21 The Respondent further avers that the Claimant changed the password of an office Apple Machine, thereby rendering it inaccessible to the Respondent. The Claimant deleted all files in the said office Apple Machine without any authorisation, most of which were the Respondent's property and were core to the performance of its mandate. 22 It is the Respondent’s case that the Claimant's illegal actions are as follows: undertaking private assignments during office hours; illegal use of the Respondent's resources to undertake private assignments; change of the password to the office Apple Machine without authority; and deletion of all files in the said office Apple Machine. Page 6 of 25

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23 The Respondent avers that it was compelled to engage the services of Esobyte East Africa for purposes of resetting the password and recovering the deleted files. Esobyte East Africa successfully reset the password but found no data in the machine, necessitating a data recovery exercise. Upon performing the data recovery, Esobyte East Africa managed to recover 2,026 files in Word format, 831 files in PDF format, and 7 files in PowerPoint format. 24 The Respondent contends that as a result of the Claimant's illegal actions, it was unable to carry out its duties seamlessly and suffered a loss of approximately KShs. 2,000,000.00. 25 The Respondent therefore prays for judgment against the Claimant for: a) A declaration that the Claimant acted unlawfully and in breach of contract in undertaking private assignments during office hours and in illegally using the Respondent's resources; b) A declaration that the Claimant acted maliciously and illegally in changing the password to the office Apple Machine; c) A declaration that the Claimant acted maliciously and illegally in deleting all files in the said office Apple Machine; Page 7 of 25

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d) Kenya Shillings Two Million (KShs. 2,000,000.00) as compensation for loss occasioned by the Claimant's malicious and illegal acts; e) General damages; f) Costs of the suit; and g) Any other order this Honourable Court may deem fit. Evidence in Court 26 The Claimant (CW1) adopted her witness statement dated 7th October 2020 and further statement 24 th April 2024 as her evidence in chief; and produced her list of documents dated 7th October 2020 as her exhibits. 27 During cross-examination, CW1 testified that she informed the Respondent of her pregnancy before her delivery and she had pre-admissions before. 28 She testified that she submitted her discharge note by Dr. Ongech dated 15th February 2019 whereas she delivered abruptly on 18th January 2019. Subsequent to the premature deliver, she applied for maternity leave. 29 CW1 testified that on 17 th December 2018 she was issued with note by Dr. Ongech putting her on full bed rest due to pre-mature rapture of membrane. 30 CW1 testified that she was denied sick leave as evidenced by the email by Harriet Okoth dated 22nd February 2019. Page 8 of 25

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31 She testified that she was discriminated against on the basis of pregnancy. 32 The Respondent’s witness, George Chisese (RW1) adopted his witness statement dated 31 st March 2025 as his evidence in chief and produced the Respondent’s bundle of documents dated 19th June 2023, supplementary bundle of documents and further bundle dated 3 rd June 2024 and 15th September 2025. 33 He stated that he works as the Respondent’s Human Resource and Administrator Officer since June 2020, thus, he never met the Claimant as she had since left employment. 34 Upon cross-examination, RW1 testified that the Claimant’s supervisor was the CEO and an Assistant Editor was not there when the supervisor was evaluating the Claimant. However, the Respondent have not produced any evaluation report before this Court. 35 RW1 testified that the Claimant’s probation was 6 months and she was to be confirmed if she completed it successfully. The probation was extended for a further 3 months despite the lack of an evaluation report, and she was ultimately terminated on the grounds of dismissal performance. Page 9 of 25

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36 RW1 testified that the Respondent was aware of the Claimant’s health challenges when she was away on maternity leave. 37 He testified that the Claimant used the employer time to do her private work but there is no evidence in Court to this effect. 38 RW1 testified that the Respondent company spent Kshs. 2 million to recover data, but there is no invoice or receipt in Court of this payment. Further, there is no report produced in Court on the said data recovery or evidence that the said computer was the one being used by the Claimant. 39 RW1 testified that the Claimant was cleared by the head of department, accounts, library, procurement, internal audit and the CEO. 40 He testified that the clearance form ensures employee returns all property of the Respondent. 41 RW1 testified that the Claimant was paid all her dues. Claimants’ Submissions 42 The Claimant submitted it was not in contention that she was employed by the Respondent vide an appointment letter dated 23rd April 2018 as a sub-editor at a gross salary of Kshs. 121,088, and that her probation, running Page 10 of 25

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for six months from her reporting date of 28 th May 2018, fell due to lapse on 28th November 2018. 43 It is the Claimant’s submission that no communication was received from the Respondent confirming, extending or otherwise addressing her employment status before that date, and that it was only after the probation period had already lapsed that she was served with a letter dated 4 th February 2019 purporting to extend her probation for a further three months from 1st February 2019, on the stated ground of dismal performance. 44 She further submitted that she was subsequently served with a letter dated 17th April 2019 terminating her employment effective 30th April 2019, signed by the Chief Executive Officer, on the ground that her performance had not met the Board's expectations, notwithstanding that she had been cleared by all departments vide a clearance form signed by the CEO. 45 On the credibility of the Respondent's case, it was submitted that the Respondent's sole witness, its HR officer, was not in its employment during the material period. This was confirmed in cross-examination that he relied solely on documents found in the file, and that no evaluation or job appraisal report was ever produced despite his own confirmation, as a qualified HR practitioner, that job evaluation ordinarily results in a report. Page 11 of 25

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46 It was submitted that the Claimant testified that she was never evaluated or assessed, a fact confirmed by the Respondent's own witness, rendering the stated reason for termination unproven and invalid. 47 She submitted, relying on Pooroosotum Bheekhoo v Linksoft Group [2015] eKLR, that it is not enough for an employer to merely cite poor performance, the burden being on the employer to prove such poor record, and further argued that an employer terminating on grounds of poor performance must demonstrate that steps were taken to support the employee to improve, which was not shown in this case. 48 On the question of probation, the Claimant submitted that having received no communication before expiry of the probation period, the Claimant stood deemed confirmed by operation of law. Reliance was placed on Wanjohi v Kenya Railways Corporation [2024] KEELRC 417 (KLR), where the court held: "The emerging jurisprudence on this issue is that if the probationary period is not extended by consent after 6 months and no communication from the employer is forthcoming to the employee on the fate of his/her probationary employment, such employee is deemed confirmed by operation of law.” Page 12 of 25

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49 She further relied on the same court's citation of David Namu Kariuki v Commission for the Implementation of the Constitution [2015] eKLR, to the effect that an employer wishing to extend a probation period must do so formally under Section 42(2) of the Employment Act before its lapse, failing which the employee is deemed confirmed by effluxion of time. 50 On discrimination, it was submitted that the Claimant was unfairly treated on account of her pregnancy and the resultant health complications necessitating bed rest, a fact within the Respondent's knowledge. 51 In support thereof, she cited Yvonne Achitsa Odedere v Maseno University [2017] KEELRC 484 (KLR), where the court held that extending a claimant's probation to cover her maternity leave period amounted to discrimination under Section 5(3) of the Employment Act, and awarded compensation equivalent to twelve months' salary despite the claimant having served only eight months. 52 It was further submitted that the extension of the Claimant's probation was in any event unlawful as it was purported after the probationary period had already lapsed, relying Corpration where an Of on Gichuki Kenya employee Kabukuru V Postal [2012] KEELRC 266 (KLR), whose probation had already automatically converted to permanent status before a Page 13 of 25

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purported extension was awarded twelve months' salary as compensation for unfair and unlawful termination, a holding submitted to have been followed in Kamtix Cleaners Limited v Odhiambo [2025] KEELRC 2475 (KLR). 53 On this basis, the Claimant urged the court adopt the same approach and award the Claimant compensation equivalent to twelve months' salary notwithstanding her short service, together with costs and interest, and that the Respondent's counterclaim, unsupported by any evidence, be dismissed with costs to the Claimant. Respondent’s Submissions 54 The Respondent submitted on four issues: whether the Claimant's employment was confirmed by operation of law; whether the termination of the Claimant's employment was unfair or unlawful; whether the Claimant was discriminated against on account of pregnancy; and whether the Claimant is entitled to the remedies sought. 55 On the first issue, the Respondent that the Claimant’s employment remained probationary throughout the material period and was never confirmed by operation of law. It argued that under Clause 10 of the Letter of Appointment, confirmation was expressly contingent upon satisfactory completion of the probationary period and a favourable performance appraisal, rather than the mere lapse of time. Page 14 of 25

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56 It is the Respondent’s submission that the Claimant’s prolonged absences owing to illness prevented a meaningful assessment of her performance, productivity, reliability and suitability for confirmation, thereby justifying the extension of her probation by a further three months in accordance with the contract and the Respondent’s established Human Resource practices. 57 The Respondent submitted that the extension of the Claimant’s probation period was a reasonable exercise of managerial discretion, undertaken in good faith and without discrimination, and that the Claimant was formally notified of the extension. The Respondent maintained that, absent a confirmation letter or a positive assessment of performance, the Claimant could not be deemed confirmed by operation of law. 58 In support of this position, reliance was placed on Patrick Korir Rotich v Unilever Tea Kenya Limited [2016] KEELRC 134 (KLR), where the Court observed that: “the confines of probation are guided and guarded by the law... probation period is in law a transition period whereby the employer is allowed time and opportunity to test the suitability of a new recruit in employment.” 59 On the second issue, the Respondent submitted that the Claimant’s employment was lawfully terminated during the extended probationary period after she failed to attain Page 15 of 25

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the threshold necessary for confirmation. It argued that the decision was made pursuant to the Letter of Appointment, the Human Resource Policy and Section 42 of the Employment Act as it stood in April 2019. 60 It is the Respondent’s submission that the Claimant’s recurrent and accommodating prolonged numerous absences, requests despite for sick it leave, rendered it impossible to conduct a comprehensive assessment of her suitability for permanent employment. 61 It was further submitted that the Respondent complied with Section 42(4) of the Employment Act by issuing a thirteen-day notice of termination, which exceeded the statutory minimum of seven days applicable to probationary contracts. It relied on Danish Jalang’o & another v Amicabre Travel Services Limited [2014] KEELRC 254 (KLR), wherein the Court held:“It is completely illogical to expect the Employer to prove any substantive performance, grounds relating physical to incapacity... misconduct, in poor terminating contracts of Employees on probation.”and further that: “Employment during probation is at will, and protections afforded to regular employees under unfair dismissal laws are not available to employees whose contracts are terminated while on probation.” 62 The Respondent acknowledged the subsequent decision in Monica Munira Kibuchi & 6 others v Mount Kenya Page 16 of 25

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University; Attorney General (Interested Party) [2021] eKLR, which declared Section 42(1) of the Employment Act unconstitutional to the extent that it excluded probationary employees from the procedural safeguards under Section 41. However, it argued that the impugned termination occurred before that declaration and that it was entitled to rely on the law as it then existed. 63 It further submitted that this principle was reaffirmed in Waweru v Amoebax Insurance Agency Limited [2025] KEELRC 233 (KLR). The Respondent therefore maintained that the termination was lawful, procedurally compliant and a proper exercise of managerial prerogative. 64 Regarding the allegation of discrimination, the Respondent submitted that the Claimant failed to discharge the burden of proving discrimination on account of pregnancy. It argued that discrimination must be established through cogent evidence demonstrating differential treatment, a prohibited ground and a causal connection between the impugned action and the protected characteristic, none of which had been demonstrated. 65 It is the Respondent’s submission that the Claimant’s termination was attributable to legitimate operational concerns arising from her probationary performance and prolonged absences rather than her pregnancy. Page 17 of 25

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66 The Respondent accommodated submitted that Claimant’s medical the it consistently condition by granting extensive sick leave notwithstanding procedural irregularities in some of her applications. It further argued that under its Human Resource Manual, read together with Section 29(6) of the Employment Act, eligibility for maternity leave required prior submission of a medical certificate indicating the expected date of delivery. 67 It contended that the Claimant only notified it of her pregnancy after she had already delivered and therefore failed to comply with the applicable policy requirements. The Respondent maintained that its correspondence demonstrated adherence to its Human Resource policies governing sick leave and maternity leave rather than discriminatory treatment. 68 It also argued that the probation extension letter expressly referred to performance-related concerns and made no reference to pregnancy, thereby negating any inference that pregnancy influenced either the extension of probation or the eventual termination. 69 The Respondent further submitted that, in addition to the attendance and performance concerns, evidence before the Court established acts of misconduct by the Claimant. It maintained that the Claimant undertook private assignments during official working hours, utilized the Page 18 of 25

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Respondent’s resources for personal benefit, altered the password of an official Apple computer without authority, and deleted the Respondent’s files. 70 It submitted that a forensic examination undertaken by Esobyte East Africa necessitated expenditure to recover deleted information and restore access to the device, with the recovered evidence revealing substantial deletion of data that disrupted the Respondent’s operations. According to the Respondent, these acts amounted to gross misconduct and further demonstrated the Claimant’s unsuitability for confirmation into permanent employment. 71 On the reliefs sought, the Respondent submitted that the Claimant had failed to satisfy the statutory threshold for compensation under Section 49 of the Employment Act. It contended that the decision to terminate was founded on valid and objectively justifiable grounds, namely the Claimant’s inability confirmation due to to satisfy prolonged the conditions absences and for the consequent inability to assess her performance. The Respondent maintained that it acted consistently with the Letter of Appointment and its Human Resource Policy in extending the probation period before ultimately terminating the employment. 72 The Respondent further submitted that the Claimant had not established procedural unfairness, discrimination, Page 19 of 25

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breach of statutory duty or any other basis warranting compensation. It contended that the circumstances leading to the termination were substantially attributable to the Claimant’s own conduct, particularly her recurrent absence from duty during probation. 73 I have examined all the evidence and submissions of the parties herein. The claim by the claimant is for unfair termination and discrimination on account of pregnancy. The claimant indicated that she was employed vide a letter of appointment dated 23/4/2018 and reported on duty on 28/5/2018. She was to serve on probation for 6 months which probation period would have ended on 27/11/2018. 74 The respondents did not write to the claimant after the expiry of the probation period to indicate that the period was being extended for poor performance. Under section 42 of the employment act, the period of probation can only be extended for a further 6 months but with the agreement of the employee. 75 The respondent wrote to the claimant a letter dated 4/2/2019 extending her probation period for 3 months with effect from 1/2/2019. It is my finding that this letter extending the claimant’s period remained largely of no consequence as the probation period had ended on 27/11/2018 when the respondents did not communicate the extension and so with effect from that time, the Page 20 of 25

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claimant became automatically permanent and pensionable. There is also no evidence that she had been subjected to any performance review within that 6 months period which would have warranted an extension of the probation period. 76 The claimant further produced evidence that she was pregnant within that period and delivered a pre mature baby on 18/1/2019 which baby unfortunately died. She sought to be allowed to proceed on maternity leave which request was denied on the ground that “ you do not quality to be away on maternity leave as this type of leave only applies to female employees who are due for delivery and signed medical certificate has been received by the HR indicating the expected EDD of the female employee”. 77 The respondent in my view acted in a callous manner by failing to appreciate the special circumstances that the claimant found herself in having to go into premature labour at 28 weeks and subsequently loosing her baby. 78 The RW1 admitted that the respondents were aware of the claimant’s health challenges when she was away on maternity leave. RW1 averred that the claimant used the employers time to do her private work but also admitted that there was no such evidence submitted before court. Page 21 of 25

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79 RW2 also indicated that the claimant cost them kshs 2 million dues spent restoring the data she had deleted from the computer. Evidence of the invoice of the said payment was also not submitted before this court nor any report of the said data recovery. What emerges from this evidence is that the respondents counter claim remained largely speculative as no evidence was produced before court and the counter claim is found without any proof and is dismissed accordingly. 80 As pertains to the claimant’s case, after denial of her request to proceed on maternity leave, she was also denied sick off and ordered to report to work and she continued working with difficulty. 81 Vide a letter dated 17/4/2019, the claimant was now terminated due to poor performance. It is evident that the claimant was not subjected to any disciplinary hearing or performance review. She was terminated against clear labour standards on unfair hearing as provided for under section 41 of the Employment Act 2007 which states as follows: 41. (1). Subject to section 42 (1), an employer shall, before terminating the employment of an employee, on the grounds of misconduct, poor performance or physical incapacity explain to the employee, in a language the employee understands, the reason for which the employer is considering termination and Page 22 of 25

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the employee shall be entitled to have another employee or a shop floor union 82 The reason given for poor performance also lack proof as the claimant was not subjected to any performance review. It is my finding that the claimant was unfairly terminated as provided for under section 45(2) of the Employment Act 2007 which states as follows: (2) A termination of employment by an employer is unfair if the employer fails to prove― (a) that the reason for the termination is valid; (b) that the reason for the termination is a fair reason― (i) related to the employees conduct, capacity or compatibility; or (ii) based on the operational requirements of the employer; and (c) that the employment was terminated in accordance with fair procedure 83 Having found as above, I find for the claimant and award her as follows: (1) 1 months’ salary in lieu of notice = kshs 121,085/-. (2) Given the inhumane way in which the claimant was terminated and denied sick off and maternity leave even after loosing her baby, I award her 10 months’ salary as compensation for the unfair termination = kshs 121,085x10= kshs 1,210,850. Page 23 of 25

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(3) I also award her a further Kshs 1 million as damages for discrimination and unfair treatment as provided for under article 27 and 28 of the Constitution which states as follows: 27. (1) (2) (3) (4) (5) (6) Every person is equal before the law and has the right to equal protection and equal benefit of the law. Equality includes the full and equal enjoyment of all rights and fundamental freedoms. Women and men have the right to equal treatment, including the right to equal opportunities in political, economic, cultural and social spheres. The State shall not discriminate directly or indirectly against any person on any ground, including race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth. A person shall not discriminate directly or indirectly against another person on any of the grounds specified or contemplated in clause (4). To give full effect to the realisation of the rights guaranteed under this Article, the State shall take legislative and other measures, including affirmative action programmes Page 24 of 25

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and policies designed to redress any disadvantage suffered by individuals or groups because of past discrimination. (7) Any measure taken under clause (6) shall adequately provide for any benefits to be on the basis of genuine need. (8) In addition to the measures contemplated in clause (6), the State shall take legislative and other measures to implement the principle that not more than twothirds of the members of elective or appointive bodies shall be of the same gender. 28. Every person has inherent dignity and the right to have that dignity respected and protected. TOTAL AWARDED = Kshs 2,331,935/- less statutory deductions. (4) The respondents will pay costs of this suit with interest at court rates with effect from the date of this judgment. Dated, Signed and Delivered virtually at Nairobi this 21st Day of September 2026. HELLEN WASILWA JUDGE Page 25 of 25

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