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ELRCDismissedNot stated in the judgment

Theuri v Integrated Payment Services Limited (Cause 2220 of 2017) [2024] KEELRC 1506 (KLR)

Employment and Labour Relations Court
14 June 2024
4,667 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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Kenya's Employment Court confirmed employers can end probationary jobs without a hearing or reasons, as long as they follow the probation contract.

What this practically means

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Executive summary

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The Claimant, former CEO of the Respondent (a wholly-owned subsidiary of the Kenya Bankers Association), was employed on a 3-year limited-term contract effective 11th November 2016, subject to 6 months' probation. Her probation was extended by a letter dated 10th July 2017; she contended the extension was for 3 months to 10th October 2017, while the Respondent produced a signed, certified copy showing extension to 10th November 2017. The Court preferred the Respondent's copy, holding the Claimant had agreed in writing to a 6-month extension as permitted by Section 42(2) of the Employment Act, and that no reasons for extension were required. On the fairness of termination, the Court held that during probation both parties are free to terminate for any or no reason; Sections 41, 43 and 45 do not apply to probationary contracts. It declined to follow Monica Munira Kibuchi v Mount Kenya University, applied its own earlier decision in Danish Jalang'o, and followed the Irish Court of Appeal in O'Donovan and the Supreme Court of Zimbabwe in St. Giles Medical Rehabilitation Centre. Section 42(1) of the Employment Act was held to be a different procedure permitted by Section 4(6) of the Fair Administrative Action Act, so no hearing is required on termination of probationary employment. The multi-stage performance procedure in Schedule 6 of the Staff Handbook was held impracticable for probationary employees. Non-confirmation at the end of the extended probation was fair and lawful; terminal dues including one month's notice had been paid. The injunction obtained by the Claimant was overtaken by events. The Claim was declined in its entirety with no order on costs.

Questions the Court framed

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

  1. 1.Whether the Claimant's probationary period was extended lawfully
  2. 2.Whether the Respondent terminated her contract fairly
  3. 3.Whether she merits the prayers sought

Key legal issues

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01

Whether the extension of probation was lawful

Holding

The letter dated 10th July 2017, signed by both Olaka and the Claimant, extended probation by 6 months to 10th November 2017 with her agreement, as permitted by Section 42(2); no reasons for extension were required

Reasoning

The Court preferred the Respondent's certified, signed copy of the extension letter over the Claimant's unsigned copy showing 10th October 2017. The Claimant admitted signing the extension. Section 42(2) requires only the Employer's proposal and the Employee's agreement; no obligation to justify extension exists.

p. 6
02

Whether the standards of fair termination under Sections 41, 43 and 45 apply to probationary contracts

Holding

No - during probation either party may terminate for any or no reason; the Court declined to follow Monica Munira Kibuchi and applied Danish Jalang'o and O'Donovan

Reasoning

Probation is an inchoate employment relationship. Imposing hearing requirements would defeat the purpose of probation. Section 42(1) is a distinct, standalone procedure; Section 4(6) of the Fair Administrative Action Act permits a different procedure under written law, so Article 47 does not import a right to be heard in probationary termination.

p. 7
03

Whether the Schedule 6 performance development procedure of the Staff Handbook applies to probationary employees

Holding

It does not; its multi-stage hearings and timelines cannot be accommodated within a maximum 12-month probationary period

Reasoning

Schedule 6 involves capability hearings, performance development plans, warnings and appeals modelled on Section 41 disciplinary procedures, which are impracticable within the limited lifespan of probationary contracts. It applies only to regular employees.

04

Whether the Claimant's terminal dues and compensation claims were merited

Holding

Terminal dues were paid in accordance with the contract and exceeded the statutory minimum notice; no compensation or damages were due as termination was fair and lawful

Reasoning

The contract required 1-month notice or pay, which was given. Section 42(4) permits as little as 7 days' notice or pay for probationers. Non-confirmation after the extended probation without hearing was lawful, and the injunction could not confirm a probationary employee.

p. 9

Legal principles established

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  • A probationary period may be extended by up to 6 months with the employee's agreement, and an aggregate of 12 months may not be exceeded (Section 42(2) and (3) Employment Act)
  • During probation, parties are free to terminate for any or no reason; Sections 41, 43 and 45 do not apply to probationary contracts
  • Section 42(1) of the Employment Act is a written law under Section 4(6) of the Fair Administrative Action Act permitting a different procedure; no hearing is required on termination of probationary employment

Court orders

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  1. 1.The Claim is declined
  2. 2.No order on the costs

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment and Labour Relations Act (employment dispute; claim founded on Article 41 Constitution and Employment Act)

Relief refused

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Declarations that extension of probation, demand for resignation, unfair labour practices and termination were illegal, unlawful, unfair and malicious

Extension was lawful under Section 42(2) as the Claimant agreed in writing; termination during probation required no hearing or reasons

p. 9

Compensation for unfair and unlawful termination equivalent of 12 months' salary

Sections 41, 43 and 45 do not apply to probationary contracts; non-confirmation at end of probation was fair

p. 9

Terminal dues and damages for unfair labour practices

Terminal dues (salary, accrued leave, notice pay) were already paid in accordance with the probationary contract

p. 9

Costs

No order on costs made

p. 9

Costs

No order on the costs.

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 Court upholds the copy exhibited by the Respondent, which is certified as a true copy of the original, and which is signed by both Olaka and the Claimant, as the letter which extended the Claimant's probation by 6 months, to 10th November 2017.
p. 5Documentary evidence - preferred copy of extension letter
during probation, both Parties must be free to terminate employment for any, or no reason, subject only, to the terms of the probationary contract and the demands of Section 42 of the Employment Act.
p. 6Termination during probation
Employers are not obligated to hear Employees on termination of probationary contracts, on the strength of Section 41 of the Employment Act or Section 4 [3] of the Fair Administrative Action Act.
p. 8No hearing entitlement in probationary termination
It is not the role of the Court to confirm probationary Employees through orders of injunction. Parties must remain free, to disengage from their unconsummated employer-employee relationships.
p. 9Injunctions and probationary employment
The Claim is declined.
p. 9Final orders - dismissal
No order on the costs.
p. 9Final orders - costs

Issues in the judgment

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minor

The judgment itself notes the Claimant exhibited two versions of the same extension letter with different end dates

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Theuri v Integrated Payment Services Limited (Cause 2220 of 2017) [2024] KEELRC 1506 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1506/eng@2024-06-14

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