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Makori v Independent Medico-Legal Unit (Cause E028 of 2023) [2025] KEELRC 820 (KLR)

Employment and Labour Relations Court of Kenya
7 March 2025
4,891 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~20 min to read original · ~4 min brief

The bottom line

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If your probation ends and your Kenyan employer does nothing, you're confirmed by law — firing you then requires full due process.

What this practically means

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Executive summary

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The Claimant was employed by the Respondent as Reparation Manager by offer letter dated 28th October 2022 on a monthly salary of Kshs.209,420, placed on four months' probation running to 28th February 2023. Following a performance appraisal process, the Respondent's Senior Management Team met him on 9th March 2023 and decided not to confirm him, issuing a 'Decision on probation performance' letter on 10th March 2023 citing deficits in interpersonal skills, temperament and leadership. He was paid two months' salary in lieu of notice, salary for days worked in March 2023 and pro-rata leave. He sued for constitutional damages under Articles 27 and 41, twelve months' compensation under section 49(1)(c) of the Employment Act, unpaid dues, reinstatement and a certificate of service. The Respondent maintained he was on probation and that due process was followed. The court framed three issues: merit, entitlement to reliefs, and costs. Holding that the probation lapsed on 28th February 2023 without a mutually agreed extension, the court found the Claimant stood confirmed by operation of law, following Peris Nyambura Kimani v Dalbit Limited and Monica Munira Kibuchi v Mount Kenya University. The Respondent therefore had to comply with sections 41 and 45 of the Employment Act, which it failed to do. Judgment was entered for the Claimant on unfair termination, but constitutional claims were rejected as a simple employer/employee dispute. He was awarded one month's salary (Kshs.207,420) with interest at 14% per annum, costs, and a certificate of service. Judgment delivered virtually at Nakuru on 7th March 2025 by Anna Ngibuini Mwaure, Judge.

Questions the Court framed

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

  1. 1.Whether the suit before this Honourable Court is merited.
  2. 2.If (a) is in the affirmative, is the Claimant entitled to the reliefs sought.
  3. 3.Who should bear the costs of the suit.

Key legal issues

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01

Whether the Claimant was still on probation at the time of termination on 9th/10th March 2023

Holding

The probationary period ended on 28th February 2023; absent a mutually agreed extension, the Claimant stood confirmed into his term contract and was entitled to section 41 procedural safeguards and section 45 substantive justification

Reasoning

The court found the probation period expressly ran to 28th February 2023. Section 42(2) permits extension only with the employee's consent, and no evidence of a mutual agreement to extend was produced. Relying on Peris Nyambura Kimani v Dalbit Limited, once the probation lapses without action by the employer, the employee is confirmed by operation of law. The Claimant was therefore serving his term contract when terminated, and the Respondent's reliance on the probationary exemption in section 42(1) failed.

p. 9
02

Whether the termination was substantively justified and procedurally fair

Holding

The termination was unfair: the Respondent failed to comply with sections 41 and 45 of the Employment Act, denying the Claimant an opportunity to respond to the reasons for termination

Reasoning

Having held the Claimant was no longer on probation, the court found the SMT meeting of 9th March 2023 merely communicated a pre-made decision and was not a disciplinary hearing. Citing Jane Wairimu Machira v Mugo Waweru Associates, poor performance terminations require pointing out shortcomings and allowing a reasonable improvement period within a participatory appraisal process. None of this was done; the appraisal was not participatory and no valid reason was established through the mandatory procedure.

p. 9
03

Whether the Claimant proved violations of Articles 27 and 41 of the Constitution

Holding

No constitutional violation was proved; the claim was a simple employer/employee dispute not warranting constitutional damages

Reasoning

The court held that although the Claimant pleaded discrimination and unfair labour practices under Articles 27(5) and 41, he did not set out with precision the manner of infringement, and the grievances were adequately addressed as ordinary employment claims under the Employment Act. Constitutional remedies were therefore refused and prayers (a) and (b) denied.

p. 10
04

What compensation was due given terminal dues already paid

Holding

The Claimant was awarded one month's salary as full compensation, having already received two months' notice pay, nine days' salary for March 2023 and pro-rata leave

Reasoning

The Claimant worked only slightly over four months and admitted receiving notice pay, March 2023 salary and pro-rata leave. Balancing the length of service and payments already made, the court exercised discretion under the remedial framework to award one month's salary with interest at 14% per annum from judgment, plus costs and the certificate of service.

p. 10

Legal principles established

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  • Upon lapse of a probationary period without the employer confirming or formally extending it, the employee stands confirmed by operation of law and full procedural safeguards under section 41 of the Employment Act apply to any subsequent termination
  • Any extension of probation must be agreed with the employee; it cannot be unilaterally imposed
  • Termination for poor performance requires a participatory appraisal process, an opportunity to improve over a reasonable period (2-3 months), and adherence to sections 41 and 45 of the Employment Act

Court orders

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  1. 1.Judgment entered for the Claimant for unfair termination
  2. 2.Claimant awarded one month's salary as full compensation being Kshs.207,420/= with interest at 14% per annum from the date of Judgment till full payment
  3. 3.Claimant entitled to the costs of the suit
  4. 4.Claimant to be issued with a certificate of service if not already released
  5. 5.Prayers (a) and (b) of the claim (constitutional damages and 12 months' compensation under section 49(1)(c)) not granted
  6. 6.Judgment dated, signed and delivered virtually at Nakuru on 7th March 2025

The bench

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

Wrote the judgment

Jurisdiction invoked
Article 162(2) of the Constitution / Employment Act (employment and labour relations dispute; enforcement of Article 41 and 27 rights within a statement of claim per Rule 7 of the ELRC (Procedure) Rules)

Relief refused

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Damages for breach of fundamental rights under Articles 27 and 41 of the Constitution

No constitutional violation proved; this was a simple employment dispute

p. 10

Compensation of 12 months' salary under section 49(1)(c) of the Employment Act (Kshs.2,513,040/=)

No constitutional violation established; Claimant worked only slightly more than four months and had already received notice pay, March salary and pro-rata leave

p. 10

Reinstatement

Not granted, the court instead awarding compensation for unfair termination

p. 10

Costs

The Claimant is awarded the 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 court is therefore convinced the Claimant has made out a case of unfair termination and judgment is entered in his favour.
p. 10Finding of unfair termination
He is awarded one month salary as full compensation being Kshs.207,420/= plus interest at 14% per annum from date of Judgment till full payments.
p. 10Final orders - compensation awarded
He is also entitled to the costs of the suit and certificate of service if not already released. Orders accordingly.
p. 10Final orders - costs and certificate of service
No case is proved of constitutional violations as this is a simple case of employee/employer. So, the prayers a and b of the claim are not granted.
p. 10Constitutional claims refused
Where an employer allows the same to pass without any action, the employee stands confirmed into full employment with the due benefits.
p. 9Confirmation upon lapse of probation (adopted from Peris Nyambura Kimani v Dalbit Limited)

Issues in the judgment

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minor

The judgment states the SMT meeting occurred on 9th March 2024, which conflicts with the termination letter dated 10th March 2023 and the pleaded chronology placing the termination in March 2023

minor

The compensation awarded (Kshs.207,420) does not match the pleaded monthly salary of Kshs.209,420; the judgment gives both figures

minor

The Respondent filed a reply dated 23rd August 2023 to a Memorandum of Claim dated 23rd June 2023, but the reply is described as opposing a claim of the same date; also the witness statement of RW2 is dated 2nd February 2024 while her bundle is dated 8th February 2023

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, "Makori v Independent Medico-Legal Unit (Cause E028 of 2023) [2025] KEELRC 820 (KLR)", Case Analysis (2025). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/820/eng@2025-03-07

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