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ELRCPartially AllowedNot stated in the judgment

Mary Kemunto Oyugi v Canton Building & Construction Limited [2018] KEELRC 2322 (KLR)

Employment and Labour Relations Court
20 December 2017
1,586 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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The Claimant, employed in August 2013 as an office secretary/typist on a probationary contract, sued for unlawful termination following her dismissal on 27th February 2014. She sought February salary, one month's notice pay, pro rata leave, compensation for unlawful termination, general damages, costs and interest. The Respondent contended she earned Kshs. 15,000/- (not Kshs. 18,000/-), that her performance during probation was unsatisfactory, that she absconded a day before her probation ended, and that she was not entitled to damages. After hearing both parties, the court found the Claimant not entirely candid, holding that she produced a doctored payment voucher to mislead the court on her remuneration. Applying Danish Jalang'o & Another v Amicabre Travel Services Limited, and disagreeing with Samuel G. Momanyi v The Attorney General & Another, the court held that Section 41 of the Employment Act does not apply to probationary contracts; an employer retains discretion whether to confirm a probationary employee, and dismissal during probation may be effected without the strictures of Section 41. However, the Claimant was entitled to payment for days worked. The court awarded her February salary of Kshs. 10,000/-, pro rata leave of Kshs. 6,750/- and Kshs. 15,000/- as notice pay, and refused compensation and general damages, the latter being unavailable under a contract of service. Each party was ordered to bear its own costs. The judgment was dated 20th December 2017 (Nzioki wa Makau J) and delivered on 17th January 2018 (Radido Stephen J).

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the termination of the Claimant's employment during probation was unlawful and unfair
  2. 2.Whether Section 41 of the Employment Act applied to a probationary contract
  3. 3.What salary the Claimant earned - Kshs. 15,000/- or Kshs. 18,000/- per month
  4. 4.Whether the Claimant was dismissed or deserted her employment
  5. 5.What dues, if any, the Claimant was entitled to

Key legal issues

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01

Whether Section 41 of the Employment Act applies to probationary contracts

Holding

It does not; the Claimant was not entitled to the Section 41 process while under probation

Reasoning

Following Rika J's reasoning in Danish Jalang'o v Amicabre, the court held that probation is a fitting period during which employer and employee assess each other. The employee may leave without ramifications and correspondingly dismissal may be effected without the strictures of Section 41. This disposes of the claim of unfair termination.

p. 2
02

Whether the Claimant earned Kshs. 15,000/- or Kshs. 18,000/- per month

Holding

The court found the Claimant's Kshs. 18,000/- voucher was doctored and she was not candid

Reasoning

The court disbelieved the Claimant's evidence on remuneration, finding she produced a suspect payment voucher intended to mislead the court. Her testimony was characterised as deceitful. The court therefore proceeded on the basis of the Respondent's computation of dues.

p. 2
03

Whether the Claimant was entitled to the dues for February and notice

Holding

She was entitled to February salary, pro rata leave and one month's notice pay as computed by the Respondent

Reasoning

Although the dismissal was not unfair under Section 41, the Claimant worked in February and was entitled to her dues. The court adopted the Respondent's computation: Kshs. 10,000/- February salary, Kshs. 6,750/- pro rata leave and Kshs. 15,000/- notice pay.

p. 2

Legal principles established

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  • Section 41 of the Employment Act does not apply to employees serving under probation; employers retain discretion whether to confirm or not confirm a probationary employee
  • General damages are not available under a contract of service
  • An employee on probation is nevertheless entitled to payment for days worked

Court orders

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  1. 1.Payment of February salary of Kshs. 10,000/-
  2. 2.Payment of pro rata leave of Kshs. 6,750/-
  3. 3.Payment of Kshs. 15,000/- as notice for the dismissal
  4. 4.Each party to bear their own costs of the suit

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

majority
Jurisdiction invoked
Original jurisdiction under the Employment Act (first-instance employment claim); no specific constitutional or statutory provision invoked in the judgment extract

Relief refused

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Compensation for unlawful termination

The Claimant was on probation and Section 41 did not apply; dismissal during probation could be effected without the strictures of Section 41

p. 2

General damages

General damages are not available under a contract of service

p. 2

Balance of the claim (any further compensation)

The balance of the claim failed

p. 2

Costs

Each party will bear their own costs of the suit

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The Claimant was not entitled to the process under Section 41 of the Employment Act as she was under the cloud of probation which is a period when the employer and employee are undergoing a fitting process.
p. 2Applicability of Section 41 to probationary contracts
The Claimant could leave without ramifications during probation and in the same vein a dismissal could be effected without the strictures of Section 41 being engaged.
p. 2Employer discretion during probation
General damages are not available under a contract of service.
p. 2Remedies in employment contracts
Each party will bear their own costs of the suit.
p. 2Costs order
The Claimant though dishonest is to receive her February salary which was Kshs. 10,000/-, her pro rata leave of Kshs. 6,750/- and Kshs. 15,000/- as notice for the dismissal.
p. 2Final orders / dues awarded

Issues in the judgment

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minor

The names of the parties are not given in the judgment text; only 'Claimant' and 'Respondent' appear

minor

The case number of the suit is not stated in the judgment text

minor

The judgment is dated 20th December 2017 and signed by Nzioki wa Makau J but delivered on 17th January 2018 by Radido Stephen J

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, "Mary Kemunto Oyugi v Canton Building & Construction Limited [2018] KEELRC 2322 (KLR)", Case Analysis (2017). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/2322/eng@2018-01-17

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