https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2210

REPUBLIC OF KENYA IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT MOMBASA ELRCA NO. E111 OF 2025 DIGITAL SANITATION SERVICES LIMITED......................................................................APPELLANT VERSUS ALI MWADULE MDOE.............................................RESPONDENT *(Being an Appeal against the entire Judgment of Hon. Lewis K. Gatheru, Principal Magistrate, delivered on 31st October 2024 in the Chief Magistrate's Court at Mombasa, Cause No. E792 of 2023)* **JUDGMENT** **A. INTRODUCTION** 1. This is an appeal by Digital Sanitation Services Limited ("the Appellant") against the entire judgment of Hon. Lewis K. Gatheru, Principal Magistrate, delivered on 31st October 2024 in Mombasa Chief Magistrate's Court Cause No. E792 of 2023, in which the trial court found that Ali Mwadule Mdoe ("the Respondent") was not, on the evidence, a probationary employee, that his termination was unfair, and entered judgment for the Respondent in the net sum of Kshs. 94,253, together with interest at court rates and 75% of the costs of the suit. 2. The central controversy, both before the trial court and on this appeal, is a narrow but consequential one: whether the Respondent was, at the material time, serving under a valid probationary contract of employment, or whether he was, in law, a full employee, and whether he was entitled to the substantive and procedural protections of sections 41, 43 and 45 of the Act. **B. BACKGROUND: THE PROCEEDINGS AND JUDGMENT OF THE TRIAL COURT** 1. The Respondent was engaged by the Appellant, a company that provides cleaning, landscaping and sanitation services to corporate clients, on or about 7th January 2023, as a cleaner/landscaper, initially deployed to Aga Khan Academy, at a monthly salary of Kshs. 19,050. It is common ground that the Respondent had previously performed similar work at the same site for a different service provider, and that he was recruited by the Appellant's Managing Director, Ms Judith Lamech Kivunzi. 2. The Respondent's case at trial was that he served diligently, trained a colleague sent to assist him, and was thereafter transferred, without his agreement, to a different work site in Nyali, occasioning him personal inconvenience given his residence in Likoni. He testified that he was, without prior notice, disciplinary hearing, or stated reason beyond a vague reference to "the Director" being the only one who could explain, instructed to surrender his uniform and company equipment, and that his services were thereby brought to an end on or about 7th August 2023. He was later paid a sum of Kshs. 21,998, which he maintained was an "appreciation token," and, dissatisfied with the outcome of a subsequent hearing at the Mombasa County Labour Office, instituted the suit that gave rise to the judgment now under appeal. 3. The Appellant's case, led through the evidence of Ms. Kivunzi (DW1), was that the Respondent had been engaged on a probationary contract "from January," that his six-month probation was thereafter "verbally extended," that he performed poorly at both Aga Khan Academy and, following a transfer, at Ideal Appliances Limited, occasioning verbal complaints from both clients, and that at the conclusion of his probationary term the Appellant elected not to confirm him, there being no vacancy, and paid him 18 days' off-duty payment (Kshs. 15,444) together with an appreciation token (Kshs. 6,554), totalling Kshs. 21,998. Critically, however, Ms Kivunzi admitted in cross-examination, in terms that both the trial court and this Court find determinative, that "the letter of appointment in Court does not state it's a probation employment" and that she had "no other document to show he was on probation." 4. Having heard the evidence and considered the parties' rival submissions, the trial court framed the issues for determination as: (a) whether the Respondent was on probation; (b) whether his employment was unfairly terminated; (c) whether he was entitled to the prayers sought; and (d) costs. On the first issue, the trial court held that, in light of the statutory definition of a probationary contract, and in the absence of any written instrument expressly stating that the Respondent's engagement was probationary, "the claimant cannot be said to have been on probation terms." On the second issue, having found that section 42 accordingly did not apply, the trial court applied section 41 and found that there had been no prior notification of the reasons for termination and no hearing, and held the termination to be unfair. On relief, the trial court awarded one month's notice pay (Kshs. 19,050), accumulated leave days (Kshs. 8,255), unpaid leave allowance (Kshs. 11,793), house allowance (Kshs. 20,003), and three months' compensation for unfair termination (Kshs. 57,150) — declining the claims for public holidays and unpaid rest days for want of proof — arriving at a gross award of Kshs. 116,251, from which the sum of Kshs. 21,998 already paid was deducted, leaving a net award of Kshs. 94,253, with interest at court rates and costs at 75% in the Respondent's favour, that percentage reflecting his only partial success on the reliefs claimed. **C. THE APPEAL** 1. By a Memorandum of Appeal dated 10th June 2025, the Appellant, aggrieved by the whole of the trial court's judgment, raised five grounds: (a) that the Learned Magistrate erred in holding that the Respondent was a permanent employee as opposed to being on probationary terms; (b) that the Learned Magistrate erred in applying the legal threshold and protections applicable to permanent employment to a Respondent who was still serving a probationary term; (c) that the Learned Magistrate erred in finding the termination unfair, whereas it was effected during the probationary period in accordance with section 42(1) and (4) of the Employment Act; (d) that the trial court erred in awarding excessive remedies, including one month's notice pay, accumulated leave days, unpaid leave allowance, house allowance, and compensation for wrongful dismissal and unfair termination; and (e) that the Learned Magistrate erred by making findings against the weight of the evidence and the applicable law. The Appellant sought that the judgment be set aside and the appeal allowed with costs. **D. THE APPELLANT'S SUBMISSIONS** 1. The Appellant submits that the Respondent was engaged on 7th January 2023 on a probationary contract which was extended in line with section 42(2) of the Employment Act, that upon effluxion of time on 7th August 2023 his probationary contract ended and he was paid his dues, and that his subsequent complaint to the Labour Office was dismissed. The Appellant contends that employees on probationary contracts operate under a special statutory regime that does not automatically extend to them the full suite of remedies available to permanent employees, and relies on section 42(1) (excluding the application of section 41 to the termination of a probationary contract), section 42(4) (permitting termination on seven days' notice or payment in lieu), and section 47(6) (barring a probationary employee from making a complaint of unfair termination under that section). 2. The Appellant further submits that its evidence establishes that it engages workers on probationary or fixed-term bases pegged to the duration of its underlying service contracts with clients, that workers are aware of this arrangement from the outset, and that the Respondent's engagement accordingly lapsed by effluxion of time. It denies that the termination was unfair, asserting compliance with section 42(4), and points to the Respondent's attendance at, and the outcome of, the Labour Office hearing as vindicating its position. On quantum, the Appellant challenges each head of the trial court's award: that notice pay was already discharged by the Kshs. 21,998 paid and receipted; that the Respondent took all leave he requested and is due nothing further; that his salary was consolidated, inclusive of house allowance, per **Charity Wambui Muriuki v M/s Total Security Surveillance Limited [2017] eKLR**; and that, even if wrongfully or unfairly terminated (which it denies), an award of one month's compensation would suffice given the Respondent's short, approximately seven-month tenure. It urges that interest and costs awarded below be declined. **E. THE RESPONDENT'S SUBMISSIONS** 1. The Respondent supports the judgment in its entirety. He submits that both parties produced before the trial court the same letter of appointment, and that it is common ground that this letter nowhere states that the engagement was on probationary terms, and that no written contract of employment stipulating probationary terms was ever produced by the Appellant. He places particular reliance on the Appellant's own witness's concession in cross-examination that "the letter of appointment in Court does not state it's a probation contract" and that she had "no other document to show he was on probation." He submits that, by section 2 of the Employment Act, a probationary contract must be a contract of employment not exceeding twelve months, in writing, and expressly stating that it is for a probationary period, and that the evidence on record, being wholly silent on probation, cannot be interpreted otherwise. On that footing, he submits the trial court correctly found him to be a full employee, to whom sections 41, 43 and 45 of the Employment Act applied in full. 2. On the fairness of the termination, the Respondent relies on section 47(5) of the Employment Act — that the burden of proving that unfair termination occurred rests on the employee, while the burden of justifying the grounds for termination rests on the employer — and submits that the Appellant produced no document whatsoever in support of its allegations of incompetence or client complaints, such that the only evidence properly before the court was that of an unfair termination founded on unsubstantiated allegations. He relies on **Pamela Nelima Lutta v Mumias Sugar Company Limited [2017] eKLR** for the proposition that fair termination requires both a valid reason and a fair procedure, and submits that neither was demonstrated. He further defends each head of the trial court's award, save that he maintains, without cross-appealing, that maximum compensation would have been more appropriate given what he characterises as the humiliating manner of his dismissal. **F. THE DUTY OF THIS COURT AS A FIRST APPELLATE COURT** 1. It is well settled, and neither party disputes, that this being a first appeal, this Court is enjoined to re-evaluate and re-assess the evidence on record afresh, and to draw its own conclusions of both fact and law, while bearing in mind, and giving due allowance for, the fact that the trial court had the advantage of seeing and hearing the witnesses testify — see **Selle & Another v Associated Motor Boat Co. Ltd & Others [1968] EA 123**. This Court will not, however, interfere with a finding of fact reached by the trial court unless satisfied that it is unsupported by the evidence or that the trial court failed to take account of some material particular. **G. ISSUES FOR DETERMINATION** 1. Arising from the grounds of appeal and the submissions of both parties, the following issues fall for determination: (a) whether the Respondent was, at the material time, engaged under a valid probationary contract of employment; (b) what fairness safeguards, if any, are due to an employee even where a probationary contract is validly established; (c) whether the Appellant discharged the burden resting on it, under sections 41, 43, 45 and 47(5) of the Employment Act, to justify the Respondent's termination; (d) whether the trial court erred in finding the termination unfair; and (e) whether the reliefs awarded by the trial court were properly assessed. **H. ANALYSIS AND DETERMINATION** ***(i) Not Every Employment Requires Probation: The Need for a Clear, Written Agreement*** 1. It is necessary to begin by dispelling what appears to be an unstated assumption underlying much of the Appellant's case: that any new employee, or any employee engaged pending the duration of a client contract, is, without more, "on probation" simply because the employer regards the relationship as provisional or because the nature of its business is dependent on the availability of client work. That assumption is not sound in law. Probation is not the default condition of new employment; it is a distinct legal status that arises only where the parties have expressly agreed to it in the manner the Employment Act prescribes. 2. Section 2 of the Employment Act defines a probationary contract as "a contract of employment, which is not more than twelve months duration or part thereof, [which] is in writing and expressly states that it is for a probationary period." Three requirements are apparent on the face of that definition, each of which is conjunctive rather than alternative: the contract must not exceed twelve months; it must be in writing; and it must expressly state that it is for a probationary period. An employer who wishes an employee to serve on probation, with the consequently relaxed regime that follows under section 42, must therefore reduce that intention to a clear, written agreement, expressly labelled as such, at the point of engagement. It is not open to an employer to assert, after the fact and in the course of litigation, that an engagement was "understood" to be probationary, or that this followed inferentially from the employer's general business model or practice. Nor is it a matter of the employer's unilateral characterisation: it is the existence of the written, express agreement — not the employer's subjective intention or its evidence about how it "generally" operates that determines whether an employee is, in law, on probation. 3. Applied to this case, the evidence is unambiguous and, in material respect, undisputed. The letter of appointment produced before the trial court by both parties contains no reference whatsoever to probation. No separate written contract of employment, of the kind contemplated by section 2, was produced by the Appellant. Ms Kivunzi, the Appellant's own Managing Director and sole witness, conceded this in cross-examination: "the letter of appointment in Court does not state it's a probation employment. I have no other document to show he was on probation." On this state of the evidence, there was, and is, simply no basis upon which the Respondent's engagement could be found to satisfy the statutory definition of a probationary contract. The trial court was correct so to find. ***(ii) Fairness Safeguards Due to an Employee Even Where Validly on Probation*** 1. Although the foregoing finding disposes of the probation question on the facts of this case, it is appropriate, given the emphasis the Appellant places on the relaxed regime it says applies to probationary staff, to address a related point of principle: that even an employee validly serving under a genuine, written probationary contract does not thereby forfeit all entitlement to fair treatment. Probation is not a wholesale suspension of an employee's rights; it is, at most, a modification of the procedure by which those rights are given effect. 2. Section 42(4) of the Employment Act itself preserves a residual procedural minimum even for a probationer: termination requires not less than seven days' notice, or seven days' wages in lieu, and that requirement is not dispensed with merely because the employee is on probation. Beyond the statute, this Court and others have been increasingly emphatic that probationary status cannot be deployed as a device for arbitrary or unexplained dismissal. In **Monica Munira Kibuchi & 6 Others v Mount Kenya University; Attorney General (Interested Party) [2021] KEELRC 2310 (KLR)**, this Court held that section 42(1) of the Employment Act, insofar as it purported to exclude a probationary employee from the protections of section 41 in their entirety, was inconsistent with Articles 41 and 47 of the Constitution of Kenya, 2010 — the right to fair labour practices and the right to fair administrative action — reasoning that employment carries profound social and economic significance for the individual regardless of the formal label attached to the contract, and that even a probationer is entitled to know, and to be heard on, the reasons said to justify the end of their engagement. Whatever view is ultimately taken of that holding — and this Court notes, as the trial court did, that the constitutionality of provisions curtailing the rights of employees on probation and of short standing remains a live and evolving area of this Court's jurisprudence — the direction of travel is unmistakable: probation confers on an employer a lighter procedural burden, not a licence to dispense with fairness altogether. 3. It is not necessary for this Court, any more than it was necessary for the trial court, to resolve the constitutional status of section 42(1) definitively in order to determine this appeal, since, as found above, the Respondent was in any event not a probationary employee at all. The point is made only to underscore that even had the Appellant established a valid probationary contract, it would not have been entitled to treat the Respondent as wholly without recourse; at a minimum, he remained entitled to the seven-day notice (or pay in lieu) prescribed by section 42(4), to be free from termination for a discriminatory or otherwise unlawful reason, and, on the authority of Kibuchi, arguably to know the reason for and be heard on his termination. The Appellant's submission that a probationer enjoys no protection whatsoever overstates the position even on its own version of the facts. ***(iii) Why the Appellant's Position is Misguided*** 1. Standing back, the Appellant's position on this appeal is misguided in more than one respect. First, it conflates its own general business practice — engaging staff on terms pegged to the duration of its client contracts — with the specific statutory requirements for a valid probationary contract in respect of this particular Respondent. A business model, however consistently applied, cannot substitute for the written, express agreement that section 2 of the Act demands in each individual case. Second, the Appellant's own evidence was internally inconsistent as to when the alleged probation began and how it was said to have been extended — Ms. Kivunzi's witness statement placed the commencement at "31st December 2022," her oral evidence at "January," and the claimed extension, said to be "in accordance with section 42(2)," was, on her own account, effected only verbally, with no document evidencing either the original probationary term or its extension ever placed before the trial court. Third, and most tellingly, the Appellant's own witness conceded, without equivocation, that the one document both sides agree governs the relationship — the letter of appointment — says nothing about probation, and that no other document exists to prove it. An appeal grounded on a factual premise that the appellant's own principal witness disavowed under cross-examination is not merely weak; it is, in the language used by the trial court and adopted by this Court, unsupported by the evidence and the applicable law. The trial court cannot be said to have erred in rejecting a probation defence that collapsed on the Appellant's own testimony. ***(iv) An Employer May Not Rely on a Bald Assertion of Poor Performance or Misconduct*** 1. A closely related difficulty with the Appellant's case is that, even taken at its highest, it amounts to little more than an unsubstantiated assertion that the Respondent performed poorly and attracted client complaints, without the documentary or procedural underpinning that the law requires before such an assertion can found a lawful termination. It is now well established in the jurisprudence of this Court, and of the Court of Appeal, that an employer cannot discharge its burden of justifying a termination by simply declaring, ex post facto, that the employee was incompetent or engaged in misconduct; something considerably more is required. 2. In **Jane Samba Mukala v Ol Tukai Lodge Limited, Cause No. 823 of 2010, [2013] KEELRC 794 (KLR)**, this Court held that an employer seeking to terminate on grounds of poor performance must demonstrate, among other things, what measures — an appraisal system, documented performance standards, or the like — it had in place to assess the performance of the employee in question, what steps it took to bring identified shortcomings to the employee's attention and afford an opportunity to improve, and that section 41's requirement of an explanation and a hearing, in the presence of a representative of the employee's choosing, was honoured before any decision to terminate was taken. The Court of Appeal reached materially the same conclusion in **National Bank of Kenya v Anthony Njue John, Civil Appeal No. 117 of 2017, [2019] KECA 445 (KLR)**, holding that "it will not suffice to just say that one has been terminated for poor performance": the employer must show that it had "an employment policy or practice on how to measure good performance as against poor performance," what measures it took "to enable [it] to assess the performance of each employee," and that the employee was called, informed of the concerns, and "allowed to defend themselves" before termination followed. 3. The general evidentiary insistence that a party may not discharge a legal burden by bare, unparticularised assertion, that allegations, however often repeated, are not evidence, and must be substantiated by documents, witnesses, or other proof capable of being tested finds support closer to home in **Pius Machafu Isindu v Lavington Security Guards Limited, Cause No. 1050 of 2012, [2014] eKLR**, where this Court (Nzioki wa Makau, J.) declined to accept a party's case where it rested on "many allegations" unaccompanied by supporting documentation such as demand letters or formal notices, holding that a case so constituted had not been proved. That principle, applied there to a claimant's unsubstantiated claims, applies with at least equal — indeed, given the employer's custody of employment records and its statutory burden under section 47(5), with greater — force to an employer who would resist a claim of unfair termination by mere assertion of misconduct or poor performance, without producing the underlying complaints, warnings, appraisal records, or minutes of any hearing said to have taken place. 4. On the facts of this appeal, the Appellant's allegations of poor performance fail this test comprehensively. Ms. Kivunzi's own evidence was that complaints from Aga Khan Academy and, later, Ideal Appliances Limited were made to her "verbally" by the clients; no written complaint, incident report, appraisal, or warning was produced. No evidence was led of any performance improvement plan, of any target or standard the Respondent was told to meet, or of any occasion on which the Respondent was formally invited to respond to a specific allegation. On the Respondent's own evidence, which the trial court was entitled to and did accept, he was simply summoned and told to return company property, having been informed only that "the Director" could explain the reason. Measured against **Jane Samba Mukala** and **National Bank of Kenya v Anthony Njue John**, the Appellant's case falls well short of what the law requires before an assertion of poor performance can justify a termination, whether of a probationer or, as here, of a full employee. ***(v) Sections 41, 43, 45 and 47(5): The Termination Was Unfair*** 1. Having found that the Respondent was a full employee and not a probationer, the trial court correctly proceeded to test the fairness of his termination against sections 41, 43 and 45 of the Employment Act, and this Court, on its own re-evaluation of the record, reaches the same conclusion. 2. Section 41 required the Appellant, before terminating the Respondent's employment on grounds of misconduct or poor performance, to explain to him, in a language he understood, the reason the Appellant was considering termination, and to afford him the opportunity to have a representative of his choosing present, and thereafter to hear and consider any representations he might make. On the evidence, none of this occurred: the Respondent was neither informed in advance of any specific allegation nor given any opportunity to respond to one; he was simply instructed to surrender company property. Section 43 provides that in any claim arising out of termination, the employer bears the burden of proving the reason or reasons for the termination, and that where the employer fails to do so, the termination is, by operation of that section, deemed to be unfair within the meaning of section 45. Here, the Appellant proved no reason capable of withstanding scrutiny: its assertions of incompetence were, as found above, bare and undocumented. Section 45 in turn renders unlawful any termination that is not shown to be founded on a valid reason related to the employee's conduct, capacity or compatibility, or the Appellant's operational requirements, and to have been effected in accordance with fair procedure; the Appellant established neither substantive nor procedural fairness. Finally, section 47(5) fixes the burden of proof: the employee must show that a termination or dismissal occurred and that it is challenged as unfair, whereupon the burden shifts to the employer to justify the grounds for that termination. The Respondent discharged his burden — it is not disputed that his engagement ended and that he considered this unfair — and the Appellant did not discharge its reciprocal burden of justification. 3. The Appellant's reliance on section 42, for the reasons already given, is misplaced, since that provision is engaged only where a valid probationary contract exists; it was not engaged here. The trial court's finding that the termination was unfair was, in this Court's assessment, correct and amply supported by the evidence. ***(vi) The Reliefs Awarded by the Trial Court*** 1. This Court has independently reviewed each head of relief awarded below and is satisfied that none discloses error warranting interference. 2. On notice pay, the trial court correctly distinguished the Kshs. 21,998 paid to the Respondent — which, on the Respondent's uncontroverted evidence, and as recorded at page 6 of the certified proceedings, comprised an "appreciation token" and payment for accrued off-days, not notice pay — from the separate entitlement to one month's pay in lieu of notice consequent upon the finding of unfair termination; the award of Kshs. 19,050 is upheld. On accumulated leave and leave allowance, the trial court properly applied section 28(1) of the Employment Act on a pro-rated basis for the Respondent's seven months of service, and the Appellant, bearing the burden of showing that leave requested was granted, produced no persuasive rebuttal; the awards of Kshs. 8,255 and Kshs. 11,793 are upheld. On house allowance, the trial court correctly held that, in the absence of an itemised pay statement as required by section 20 of the Employment Act, the Appellant could not simply assert that the salary paid was "consolidated" and inclusive of housing; the burden lay on the Appellant, as the party in possession of payroll records, to demonstrate this by production of payslips, and it did not do so. The award of Kshs. 20,003 is upheld. On compensation for unfair termination, the trial court exercised its discretion under section 49 conservatively, awarding three of the twelve months claimed, having regard to the Respondent's short tenure of approximately seven months and the fluid, contract-dependent nature of the Appellant's business; this Court finds no basis to disturb that assessment, which was, if anything, moderate rather than excessive. The claims for public holidays and unpaid rest days were, correctly, declined for want of particularised proof — a further indication that the trial court approached the claim even-handedly rather than uncritically in the Respondent's favour. The net award of Kshs. 94,253, together with interest at court rates and costs assessed at 75% in recognition of the Respondent's only partial success, is accordingly upheld in its entirety. **I. DISPOSITION** 1. For the reasons set out above, this Court finds that: (a) the Respondent was not, on the evidence, engaged under a valid probationary contract within the meaning of section 2 of the Employment Act, there being no written instrument expressly stating that his engagement was probationary, and the Appellant's own witness having conceded as much; (b) even an employee genuinely on probation is not thereby stripped of all fairness safeguards, though this finding does not need to be, and is not, determinative of the present appeal; (c) the Appellant's position that the Respondent enjoyed no protection under the Employment Act is misguided, both in law and on its own evidence; (d) the Appellant failed to discharge the burden resting on it under sections 41, 43, 45 and 47(5) of the Employment Act to justify the Respondent's termination, its allegations of poor performance having been advanced as bald assertions unsupported by any documentary or procedural foundation; and (e) the reliefs awarded by the trial court were properly and, if anything, conservatively assessed. 2. Accordingly, the appeal fails on every ground raised. The judgment of Hon. Lewis K. Gatheru, Principal Magistrate, delivered on 31st October 2024 in Mombasa Chief Magistrate's Court Cause No. E792 of 2023, is hereby upheld in its entirety. 3. The appeal is dismissed with costs to the Respondent. 4. It is so ordered. Delivered, signed and dated at Mombasa this 30th day of July 2026. **OCHARO KEBIRA** **JUDGE**