Kamtix Cleaners Limited v Odhiambo (Employment and Labour Relations Appeal E219 of 2024) [2025] KEELRC 2475 (KLR)
The bottom line
#Kenya's Employment Court confirmed that probation can't outlast the statutory cap, and employers who can't prove a valid reason for firing must pay compensation.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Was the Respondent under a probationary contract at the time of separation?
- 2.Whether the Respondent's employment was unfairly terminated
- 3.Whether the Respondent was entitled to the reliefs granted by the learned magistrate
Key legal issues
#Probationary status at separation
The Respondent was not on probation at the time of separation; she was deemed confirmed after six months, and the 2019 probationary terms were unlawful and did not override the indefinite contract
The 2017 contract was indefinite subject to probation. Section 42 of the Employment Act caps probation, and statutory limits cannot be contracted out of. With no express extension by consent, the employee was confirmed by operation of law. The 2019 document merely conferred new duties and higher salary and did not terminate the original contract; its probation stipulations were unfair labour practices.
Fairness of termination
Termination was substantively unjustified; the employer failed to prove a valid and fair reason
Under sections 43 and 45, the employer must prove the reason for termination and its validity. The non-renewal letter was internally contradictory, citing both effluxion of time and poor performance, and the pleadings and evidence were sketchy and contradictory. No performance evaluation mechanism was demonstrated, so the termination lacked substantive justification.
Reliefs
Notice pay, leave pay, house allowance and underpayment claims properly awarded; twelve months' compensation reduced to six months
Employment was terminable by 28 days' notice and none issued. Leave is a statutory entitlement and forfeiture clauses are unenforceable. The employer failed to prove the consolidated salary included house allowance. Section 48 of the Labour Institutions Act allows recovery of minimum wage underpayments. Compensation under section 49(1)(c) is discretionary and the trial court erred in not giving reasons, but the award was justified, reduced for the short service period.
Legal principles established
#- An employee cannot be kept on probation beyond the statutory maximum under section 42 of the Employment Act, and such statutory limits cannot be waived or modified by contract
- Where probation is not expressly extended with the employee's consent within the statutory period, the employee is deemed confirmed by operation of law
- Contractual forfeiture clauses for untaken leave are contrary to law and unenforceable
- The employer bears the burden of proving, with sufficient evidence, that a consolidated salary included house allowance
Court orders
#- 1.Appeal substantially fails
- 2.Trial Magistrate's award of twelve months' gross pay for unfair termination set aside and replaced with six months' gross salary
- 3.Appellant to issue the Respondent with a certificate of service within 30 days of the Judgment
- 4.Costs of the Appeal awarded to the Respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Magistrates' Court
- Jurisdiction invoked
- First appellate jurisdiction over the magistrates' court in an employment dispute
Relief refused
#Twelve months' gross pay as compensation for unfair termination (reduced, not refused)
Respondent worked only three years; compensatory award reduced to six months' gross salary
Costs
Costs of this Appeal shall be for the Respondent.
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 the upshot, the Appellant's appeal substantially fails. The trial Court's Judgment is only disturbed to the extent above-stated [para. 68].
Costs of this Appeal shall be for the Respondent.
I firmly hold that this provision cannot be waived or modified through stipulations within an employment contract
Legal burdens are never discharged through sketchy and contradictory evidence.
Under Section 51 of the Act, a certificate of service is a statutory right to an employee who has exited the employment of an employer.
Issues in the judgment
#Judgment refers to termination letter dates inconsistently
Judgment uses inconsistent dates for the second contract ('probationary employment Contract' dated 20th September 2019 versus document dated 1st September 2019)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kamtix Cleaners Limited v Odhiambo (Employment and Labour Relations Appeal E219 of 2024) [2025] KEELRC 2475 (KLR)", Case Analysis (2025). Not stated in the extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2475/eng@2025-09-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.