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ELRCPartially AllowedELRC Appeal arising from Mombasa CMELRC No. E314 of 2021

Kamtix Clearners Limited v Midira (Appeal E218 of 2024) [2025] KEELRC 973 (KLR)

Employment and Labour Relations Court
27 March 2025
2,713 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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Kenyan employers cannot extend probation without employee consent or fire for poor performance without a hearing — both make termination unfair.

What this practically means

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Executive summary

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This is a first appeal to the Employment and Labour Relations Court at Mombasa against the judgment of 27 September 2024 in Mombasa CMELRC No. E314 of 2021, in which a cleaning supervisor employed from September 2017 to December 2020 at Ksh.12,000 monthly won awards for unfair termination, notice pay, leave, house allowance, underpayment and 12 months' compensation. The appellant employer contended the respondent was a fixed-term probationary employee dependent on its cleaning contract with KCB, terminated lawfully on non-renewal and poor performance. The court, per M. Mbarũ J, distinguished fixed-term from probationary contracts, holding that a probationary period cannot be unilaterally extended beyond its term without the employee's consent; the second 12-month probationary contract was therefore unlawful and the respondent was a full-time employee. The termination notice cited poor performance, yet no show-cause notice or hearing was given, breaching the mandatory requirements of section 41 of the Employment Act, and the appellant's shifting reasons (third-party contract expiry, probation, poor performance) lacked clarity, resulting in wrongful termination under sections 43 and 45. The court varied the trial judgment: compensation reduced to six months (Ksh.93,653.10), notice pay Ksh.15,608.85, underpayments limited to 12 months as a continuing injury under section 89 (Ksh.43,306.02), leave pay for 33 days Ksh.14,929.02, plus a certificate of service, trial costs from the date of judgment, and 50% of the appeal costs to the respondent.

Questions the Court framed

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

  1. 1.Whether the respondent's employment was dependent on the appellant's cleaning contract with KCB such that its termination was lawful
  2. 2.Whether the respondent was on probation at termination or had become a full-time employee after the initial probation lapsed
  3. 3.Whether the termination on alleged poor performance complied with sections 41, 43 and 45 of the Employment Act
  4. 4.Whether the awards of notice pay, compensation, underpayments and leave pay were justified, and if not, the appropriate quantum

Key legal issues

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01

Status of the respondent at termination

Holding

The initial 6-month probation lapsed and was never lawfully extended; the second 12-month probationary contract issued on 1 September 2019 was unlawful, so the respondent was a full-time employee entitled to notice and reasons

Reasoning

The court found the first 6-month probation ended without explanation and that continued service was evidenced by wage payments. Under section 42 of the Employment Act, upon expiry of the agreed probation the employee becomes a full-time employee unless the probation is mutually extended, and any extension cannot exceed 12 consecutive months. Unilaterally issuing a further probationary contract was unlawful.

p. 4
02

Procedural fairness in termination for poor performance

Holding

No show-cause notice or hearing preceded the termination; section 41 requirements are mandatory and their breach rendered the termination unfair

Reasoning

The court relied on Court of Appeal authority that section 41 requires notification and explanation of reasons and an opportunity to make representations, requirements rooted in natural justice. The appellant did not claim to have issued notice addressing the alleged poor performance, and there was no hearing or elaboration of particulars.

p. 5
03

Inconsistent reasons for termination

Holding

The appellant advanced conflicting reasons (expiry of third-party contract, probationary terms, poor performance); the notice itself cited poor performance, and the lack of clarity resulted in wrongful termination

Reasoning

Under section 43, the employer must prove the reason for termination as matters it genuinely believed to exist at termination. The notification letter dated 1 October 2020 cited non-renewal for poor performance, while submissions alleged dependence on the third-party KCB contract. These shifting and contradictory reasons could not sustain a lawful termination.

p. 5
04

Quantum of awards

Holding

Compensation reduced to six months' gross wage (Ksh.93,653.10), notice pay set at Ksh.15,608.85, underpayments limited to 12 months (Ksh.43,306.02) and leave pay recalculated for 33 days (Ksh.14,929.02)

Reasoning

The court held the trial court had not justified the maximum 12 months' compensation under section 45(5); considering procedural lapses and service from 2017 to 2020, six months was appropriate. Underpayment is a continuing injury limited to 12 months under section 89, and leave accrual is capped at 18 months under section 28(4).

p. 5

Legal principles established

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  • A fixed-term contract and a probationary contract are not synonymous; each has its own procedure for execution and termination
  • A probationary period cannot be extended beyond its term without the employee's consent; an unconsented extension is unlawful and the employee becomes a full-time employee
  • An employer terminating for poor performance must comply with section 41 of the Employment Act; due process is mandatory
  • Parties cannot contract out of the statutory minimum wage; an employment contract cannot be used to pay below the Wage Order

Court orders

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  1. 1.Compensation of Ksh.93,653.10 (6 months' gross wage)
  2. 2.Notice pay of Ksh.15,608.85
  3. 3.Underpayments of wage inclusive of house allowance of Ksh.43,306.02
  4. 4.Leave pay of Ksh.14,929.02
  5. 5.Certificate of service to be issued
  6. 6.Costs of the trial court from the date of the judgment
  7. 7.For the appeal, the respondent awarded 50% of the costs

The bench

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

majority

Wrote the judgment

On appeal from
Magistrates' Court (Employment and Labour Relations), Mombasa
CMELRC No. E314 of 2021
Jurisdiction invoked
First appeal from the trial court in employment and labour relations matter

Relief refused

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12 months' maximum compensation as awarded by the trial court

Court reduced compensation to six months, holding the trial court did not justify the maximum under section 45(5)

p. 5

Underpayment claims beyond 12 months before cessation

Limitation under section 89 of the Employment Act as a continuing injury

p. 5

Leave days accrued beyond 18 months

Section 28(4) of the Employment Act limits accrual of leave to 18 months

p. 6

Costs

Costs of the trial court from the date of the judgment to the respondent; for the appeal, the respondent is awarded 50% of 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.

Accordingly, the judgment in Mombasa CMELRC Cause No.E314 of 2021 is hereby reviewed in the following terms;
p. 6disposition - variation of the trial court's judgment
Whereas an employer is allowed to issue the employee with a fixed term contract, to place the employee under probation, the two are not synonymous.
p. 4distinction between fixed-term and probationary contracts
Without the consent of the employee, any extension of the probation period, through another contract terms as probationary contract or otherwise, this is unlawful.
p. 4unlawful extension of probation
It is not suficient to cite poor performance or that the employee was on probation. The due process for section 41 of the Employment Act is mandatory.
p. 5mandatory procedural fairness in termination
The appellant failed to follow its letter of appointment, there is no adherence to the mandatory provisions of Sections 35, 41, 43 and 45 of the Employment which results in unfair termination of employment.
p. 5unfair termination findings
For the appeal, the respondent is awarded 50% of the costs.
p. 6costs of the appeal

Issues in the judgment

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minor

The judgment records the termination notice as stating the contract 'ended on 31 September 2020', a non-existent date

minor

Leave pay figures differ between the reasoning (Ksh.14,929.20) and the final orders (Ksh.14,929.02)

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, "Kamtix Clearners Limited v Midira (Appeal E218 of 2024) [2025] KEELRC 973 (KLR)", Case Analysis (2025). ELRC Appeal arising from Mombasa CMELRC No. E314 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/973/eng@2025-03-27

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