https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1731

Anyango v Eidu Kenya Ltd (Cause E969 of 2025) [2026] KEELRC 1731 (KLR) (24 June 2026) (Ruling) Neutral citation: [2026] KEELRC 1731 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nairobi Cause E969 of 2025 HS Wasilwa, J June 24, 2026 Between Linah Anyango Claimant and Eidu Kenya Limited Respondent Ruling 1.In opposition to the Claimant’s claim dated 27th August 2025, the Respondent filed a Notice of Preliminary Objection dated 16th March 2026 to have the Claim dismissed with costs on the following grounds: 1.The Claimant’s employment with the Respondent was terminated whilst the Claimant was under probation. 2.Pursuant to the provisions of Section 42(1) of the Employment Act 2007, Chapter 226 laws of Kenya (as restated) the provisions of Section 41 of the Employment Act do not apply. 3.At the time the Claimant’s employment with the Respondent was terminated, the Claimant had been in employment with the Respondent for less than six months. 4.Pursuant to the provisions of Section 45 (3) of the Employment Act 2007, Chapter 226 laws of Kenya, the Claimant has no statutory right to complain of unfair termination. 5.The corollary of the foregoing is that the Claimant’s Claim is unsustainable and consequently the continuance of these proceedings constitutes an abuse of the Court Process. 6.The Respondent thus prays that the Claimant’s Claim dated August 27, 2025, be dismissed with costs to the Respondent. Claimant’s Case 2.The Claimant opposed the Notice of Preliminary Objection dated 16th March 2026 by filing Grounds of Opposition dated 15th April 2026 on the following grounds:1.That the Respondent’s Preliminary Objection is fundamentally defective, misconceived, and unmerited.2.That the suit herein is competent and properly before this Honourable Court.3.That the reliance on Section 42(1) of the Employment Act is misplaced, as the exclusion of probationary employees from its protections has been declared unconstitutional. In Monica Munira Kibuchi & 6 Others v Mount Kenya University; Attorney General (Interested Party) [2021] eKLR, the High Court held as follows: “To this extent therefore, we find and hold that Section 42(1) insofar as it excludes an employee holding a probationary contract from the provisions of Section 41 of the Employment Act, is inconsistent with Articles 41 and 47 of the Constitution hence null and void.”4.That the Preliminary Objection is devoid of merit and discloses no sufficient legal basis for striking out the suit.5.That the Preliminary Objection is intended to delay, frustrate, and defeat the expeditious hearing and determination of the Claimant’s claim on its merits. Respondent’s Submissions 3.The Respondent submitted that its preliminary objection is anchored on Sections 42(1) and 45(3) of the Employment Act, 2007. Section 42(1) excludes the provisions of Section 41 where termination relates to a probationary contract, while Section 45(3) provides that the right to complain of unfair termination accrues only to an employee who has been in continuous employment for not less than 13 months immediately before the date of termination. The Respondent submitted that the combined effect of these two provisions is that employees on probation cannot invoke the statutory remedy of unfair termination. 4.It was further submitted that Section 45(3) draws a clear legislative distinction between employees who have attained the statutory threshold and those who have not, and that where the pleadings establish that the employee was dismissed before attaining that threshold, the statutory bar applies and the claim is legally unsustainable. 5.It is the Respondent’s submission that in the instant case, the Claimant had not been in employment for the statutory prescribed period as stipulated by Section 45(3) of the Employment Act and as such the provisions acts as a statutory bar to a claim for unfair. 6.On the nature of the claim, the Respondent submitted that the Claimant sought twelve (12) months' compensation for unfair dismissal amounting to KES 2,400,000; though she merely asserted that she was a victim of unfair labour practice without laying any factual basis to establish a violation of her constitutional right to fair labour practices under Article 41 of the Constitution. 7.While conceding that Section 42(1) of the Employment Act has been declared unconstitutional, the Respondent submitted that the Claimant cannot latch onto that unconstitutionality to sustain her claim. It argued that the Claimant neither sought a declaration of violation of her constitutional right to fair labour practices nor sought any constitutional relief. It was submitted that a claim for unfair dismissal is manifestly different from a claim for violation of fundamental rights and freedoms. 8.On the pleading standard for constitutional claims, the Respondent relied on Anarita Karimi Njeru v Republic [1979] eKLR where the court held that a petitioner must set out with clarity the specific provisions alleged to have been infringed upon, the manner of infringement, and the nature of injury caused. It was submitted that a claimant must further particularize the alleged violation, specify the appropriate reliefs sought, and demonstrate a causal link between the Respondent's actions and the infringed right. 9.It was submitted that a claim for unfair termination under the Employment Act is entirely distinct from a constitutional petition alleging violation of Article 41. 10.Relying on Momanyi v Attorney General & another [2012] KEHC 5446 (KLR), where the 13-month service requirement was held to be inconsistent with constitutional rights to fair labour practices and access to justice, a position reaffirmed by the Court of Appeal in Gogni Rajope Construction Company Limited & another v Omondi [2025] KECA 161 (KLR). However, it submitted that these decisions are distinguishable from the present matter in that they involved express constitutional challenges, whereas the Claimant herein has not pleaded any constitutional violation nor sought any constitutional relief. 11.It is the Respondent's submission that where a statute removes or limits a statutory remedy, this Court lacks jurisdiction to entertain claims outside the confines of that limitation. Claimant’s Submissions 12.It is the Claimant's submission that the Respondent's Preliminary Objection is legally untenable and contrary to settled constitutional and employment law jurisprudence. 13.On Section 42(1) of the Employment Act, the Claimant submitted that its constitutionality was conclusively determined by the High Court in Monica Munira Kibuchi & 6 others v Mount Kenya University; Attorney General (Interested Party) [2021] eKLR, where a three-Judge bench declared Section 42(1) unconstitutional to the extent that it excluded employees serving under probationary contracts from the procedural safeguards under Section 41; it held:"Section 42(1) insofar as it excludes an employee holding a probationary contract from the provisions of Section 41 of the Employment Act, is inconsistent with Articles 41 and 47 of the Constitution hence null and void." 14.It was submitted that the effect of that declaration is that employers are legally obligated to comply with the procedural fairness requirements under Section 41 even where an employee is serving under probationary terms. The Claimant argued that the Respondent's reliance on Section 42(1) is therefore misguided, as a provision declared unconstitutional cannot form a lawful basis for defeating her suit. 15.It was submitted that this decision unequivocally affirmed that employers are bound to comply with Section 41 notwithstanding that an employee is serving under probationary terms, and that it is trite law that a provision declared unconstitutional ceases to have legal effect. 16.The Claimant further submitted that the Respondent's Preliminary Objection does not raise a pure point of law capable of disposing of the suit at a preliminary stage as contemplated in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd. It was argued that the issues raised touch on substantive questions regarding the legality and procedural fairness of the termination, matters which can only properly be determined upon full hearing and evaluation of evidence. 17.The Claimant accordingly submitted that the Respondent's Notice of Preliminary Objection is misconceived, devoid of merit, and an abuse of the Court process, and prayed that it be dismissed with costs. 18.I have considered the averments and submissions of the parties herein. The preliminary objection raised by the respondent relates to factual matters which go beyond the purview of Mukisa Biscuit case. Other than that, the respondents seeks to rely on section 42 of the Employment Act where a three-judge bench of this court in Monica Munira Kibuch & 6 Others Petition No. 94 of 2016 declared null and void. On relying on this case, I therefore find the preliminary objection not merited and is dismissed accordingly. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 24TH DAY OF JUNE, 2026.HELLEN WASILWAJUDGE