Flora Printers v Abdulkader M. Musani
The bottom line
#Even if an employer claims it 'rescinded' a job offer, Kenyan law still requires notice or pay in lieu during probation.
What this practically means
#Executive summary
#Key legal issues
#Rescission for misrepresentation versus termination of a probationary contract
Even on the appellant's own framing (rescission for misrepresentation), notice or payment in lieu was still required; the characterization did not escape the notice obligation.
The court accepted that the parties contracted on 16th December 2015 with a 3-month probation clause. Section 42 of the Employment Act applied, which allows termination of a probationary contract on seven days' notice or wages in lieu. Since neither the contract nor the statute dispensed with notice altogether, the appellant could not avoid liability by labelling its withdrawal a rescission.
Implied reasonable notice where the probationary contract is silent
In the absence of an agreed notice period, the ELRC may imply a reasonable notice; the statutory seven days is a minimum that may be enhanced.
Section 42(4) fixes the minimum notice at seven days, but Section 26(2) permits more favourable terms agreed by the parties, in a CBA, or decreed by a judgment or order. Relying on the Kenya Tea Growers decision, the court held the ELRC is empowered to issue such favourable terms, and thus could imply a notice period longer than seven days.
Quantum of salary in lieu of notice
Three months' salary was unreasonable; one month's notice was reasonable on the circumstances, and the award was reduced accordingly.
Applying the principle that an appellate court interferes with damages only where the trial judge acted on a wrong principle or the award was so high or low as to be an entirely erroneous estimate, the court found three months excessive. It substituted one month's salary of Kshs.140,000 for the Kshs.420,000 awarded below.
Scope of first appellate review and absence of cross-appeal
A party who has not filed a notice of cross-appeal cannot invite the first appellate court to disturb findings in its favour; the respondent's challenge to the unfair-termination finding failed for that reason.
The court noted that jurisdiction to determine an appeal is invoked by filing a Notice of Appeal. The respondent filed no cross-appeal against the finding that termination was not unfair, and the appellant did not challenge it either, so that line of submission was misconceived and failed.
Legal principles established
#- A probationary contract may be terminated only on not less than seven days' notice or payment of seven days' wages in lieu, but parties or the ELRC may agree to or enhance more favourable terms.
- Where a contract of employment is silent on a notice period for termination of a probationary contract, the ELRC has discretion to imply a reasonable notice period.
Court orders
#- 1.Set aside the ELRC decision with regard to payment of 3 months' salary of Kshs.420,000 in lieu of notice
- 2.Substitute it with payment of one month's salary of Kshs.140,000
- 3.Each party to bear its own costs of the appeal
- 4.No interference with the ELRC award of costs in favour of the respondent
- On appeal from
- Employment and Labour Relations Court at Mombasa
- Cause No. 246 of 2016
- Jurisdiction invoked
- First appellate jurisdiction over the Employment and Labour Relations Court under Article 164(3) of the Constitution and the Employment and Labour Relations Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Flora Printers v Abdulkader M. Musani", Case Analysis (2018). Civil Appeal No. 64 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/621/eng@2018-05-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.