Kamtix Clearners Limited v Midira (Appeal E218 of 2024) [2025] KEELRC 973 (KLR)
The bottom line
#Kenyan employers cannot extend probation without employee consent or fire for poor performance without a hearing — both make termination unfair.
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 respondent's employment was dependent on the appellant's cleaning contract with KCB such that its termination was lawful
- 2.Whether the respondent was on probation at termination or had become a full-time employee after the initial probation lapsed
- 3.Whether the termination on alleged poor performance complied with sections 41, 43 and 45 of the Employment Act
- 4.Whether the awards of notice pay, compensation, underpayments and leave pay were justified, and if not, the appropriate quantum
Key legal issues
#Status of the respondent at termination
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
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.
Procedural fairness in termination for poor performance
No show-cause notice or hearing preceded the termination; section 41 requirements are mandatory and their breach rendered the termination unfair
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.
Inconsistent reasons for termination
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
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.
Quantum of awards
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)
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).
Legal principles established
#- 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
#- 1.Compensation of Ksh.93,653.10 (6 months' gross wage)
- 2.Notice pay of Ksh.15,608.85
- 3.Underpayments of wage inclusive of house allowance of Ksh.43,306.02
- 4.Leave pay of Ksh.14,929.02
- 5.Certificate of service to be issued
- 6.Costs of the trial court from the date of the judgment
- 7.For the appeal, the respondent awarded 50% of the costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
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
#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)
Underpayment claims beyond 12 months before cessation
Limitation under section 89 of the Employment Act as a continuing injury
Leave days accrued beyond 18 months
Section 28(4) of the Employment Act limits accrual of leave to 18 months
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
#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;
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.
Without the consent of the employee, any extension of the probation period, through another contract terms as probationary contract or otherwise, this is unlawful.
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.
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.
For the appeal, the respondent is awarded 50% of the costs.
Issues in the judgment
#The judgment records the termination notice as stating the contract 'ended on 31 September 2020', a non-existent date
Leave pay figures differ between the reasoning (Ksh.14,929.20) and the final orders (Ksh.14,929.02)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.