Otieno v Fairmont Mount Kenya Safari Club (Employment and Labour Relations Cause E017 of 2024) [2025] KEELRC 796 (KLR)
The bottom line
#Kenyan employers cannot fire probationary staff for poor performance without first giving them a hearing — even after a performance improvement plan.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the termination of claimant's contract of service was unfair and unlawful.
- 2.Whether the reliefs sought are merited.
Key legal issues
#Whether a valid reason existed for terminating the claimant's probationary contract
The court found a valid reason - the claimant's failure to submit reports and a hygiene incident demonstrated poor performance incompatible with long-term employment
The court held that probation exists to assess compatibility, and the employer demonstrated the claimant did not perform to satisfaction. He failed to make daily and weekly reports and a foreign object was found in a customer's food, justifying separation for incompatibility.
Whether a fair procedure was followed before termination
No hearing was accorded; the termination was procedurally unfair notwithstanding the valid reason
Section 41 is mandatory: an employer must explain reasons and hear representations before terminating for poor performance. Placement on a PIP or an offer of salary in lieu of notice does not displace the right to a hearing. Termination without hearing was unfair under section 45.
Whether section 42 excludes fair-hearing rights for probationary employees
The provision has been declared unconstitutional; probationary employees enjoy Article 41 and 47 protections
The court noted that the sui generis pre-contract treatment of probationary contracts excluding sections 41 and 45 has been declared unconstitutional as contrary to fair labour practices and fair administrative action. Employers must show valid reason and follow fair procedure even in probation.
Legal principles established
#- The constitutional protection of fair hearing under Article 47 and section 41 of the Employment Act applies to termination of probationary contracts despite section 42 of the Employment Act
- An employer must accord an employee a fair hearing before termination on grounds of poor performance, even where a PIP preceded the termination or notice/salary in lieu is offered
Court orders
#- 1.Judgment entered for the claimant in the sum of Kshs.140,000 as compensation for unfair termination, subject to statutory deductions
- 2.Costs of the suit awarded to the claimant
- 3.Interest on the award at court rates from the date of judgment
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act and Article 41 and 47 of the Constitution
Relief refused
#Certificate of service
The certificate had already been issued after demand by the claimant's lawyer; the claim was overtaken by events
Terminal benefits of Kshs.60,000
The claim lacked particulars and supporting evidence
Compensation of 12 months' gross salary (Kshs.1,480,000)
Only one month's salary awarded considering the short period of service and the claimant's own poor performance
Costs
Costs awarded to the claimant, with interest at court rates from the date of judgment
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In view of the foregoing development in our jurisprudence, the special nature of the probationary contract has been eroded and therefore the employers are now required to act fairly before terminating probationary contracts.
the employee may have been preceded by a PIP, but that does not distinguish the employee's rights to fair hearing under section 41 above
Consequently, I enter judgment for him in the sum of Kshs.140,000 as compensation for the unfair termination. The award is subject to statutory deductions. I further award him costs and interest at court rates from the date of judgment.
Issues in the judgment
#Claim as pleaded states damages of Kshs.1,680,000 but the reliefs section refers to 12 months' compensation of Kshs.1,480,000; the termination letter also misdates February as 'Februaruy' and the compensation figure differs
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Otieno v Fairmont Mount Kenya Safari Club (Employment and Labour Relations Cause E017 of 2024) [2025] KEELRC 796 (KLR)", Case Analysis (2025). Memorandum of Claim dated 22nd May 2024 (ELRC, Nyeri). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/796/eng@2025-03-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.