She lost her baby after a 28-week premature delivery, then faced a battle over maternity leave, sick-off and her job that ended with a KSh2.33 million court award.
The Kenya Yearbook Editorial Board has been ordered to pay KSh2.33 million after losing a bitter employment dispute.
The Employment and Labour Relations Court found Lilian Kaivilu was unfairly terminated after her probation had expired.
Justice Hellen Wasilwa also found serious shortcomings in the Board’s handling of her pregnancy-related medical challenges.
The ruling faulted the employer for extending probation retrospectively before terminating Kaivilu over alleged poor performance.
The court further dismissed a KSh2 million counterclaim accusing Kaivilu of damaging the Board’s computer systems.
Kaivilu was awarded KSh121,085 in notice pay and KSh1.21 million for unfair termination.
She also received KSh1 million for discrimination and unfair treatment, bringing the award to KSh2,331,935.
The judgement was delivered virtually in Nairobi on September 21, 2026.
Probation Expired
Kaivilu joined the Kenya Yearbook Editorial Board as a sub-editor after successfully completing its recruitment process.
Her appointment letter was dated April 23, 2018, while she reported for duty on May 28.
She earned a gross monthly salary of KSh121,085 under the terms of her appointment.
Her probation was scheduled to last six months, subject to satisfactory performance during that period.
That probation ended on November 27, 2018, but the Board made no communication extending it.
Instead, the employer issued a letter dated February 4, 2019, extending probation for another three months.
The extension purported to operate retrospectively from February 1, several months after probation had ended.
The Board cited a performance review which allegedly showed Kaivilu had performed poorly.
But Kaivilu maintained that she had never undergone such an evaluation during her probation.
The judge accepted that argument after examining the evidence presented by both sides.
Justice Wasilwa found the later extension letter had little legal effect after probation expired.
“With effect from that time, the claimant became automatically permanent and pensionable,” the judge ruled.
Section 42 permits probation extensions for another period but requires agreement between employer and employee.
The statutory framework therefore made the timing and circumstances surrounding the extension particularly important.
Performance Missing
The Board maintained that Kaivilu’s performance had been continuously monitored throughout her probationary period.
It argued that her performance fell below the standards required for confirmation into permanent employment.
Yet the evidence produced at trial failed to establish that position convincingly.
The Board’s Human Resources officer admitted there was no performance evaluation report before the court.
He further confirmed that probation had been extended despite the absence of an evaluation report.
That admission weakened the central justification eventually advanced for terminating Kaivilu.
The Board terminated her through a letter dated April 17, 2019, citing inadequate performance.
Justice Wasilwa found that Kaivilu had never received a proper performance review before losing her job.
She also found that the employee had not been subjected to a disciplinary hearing.
Section 41 requires an employer to explain contemplated termination and hear an employee’s response.
Section 45 additionally requires employers to establish both valid reasons and fair termination procedures.
The court consequently found Kaivilu’s termination unfair under the Employment Act.
Pregnancy Battle
The employment dispute unfolded while Kaivilu faced a devastating pregnancy and medical ordeal.
She had been placed on bed rest after suffering complications before her premature delivery.
Kaivilu went into premature labour at 28 weeks and delivered her baby on January 18, 2019.
The baby unfortunately died on the same day, according to evidence recorded in the judgement.
She subsequently sought maternity leave while dealing with the physical and emotional consequences.
The employer rejected her request, citing requirements concerning medical certification and expected delivery dates.
The judge sharply criticised the Board’s approach given the exceptional circumstances surrounding Kaivilu’s premature delivery.
“The respondent, in my view, acted in a callous manner,” Justice Wasilwa stated.
The court found that the Board knew about Kaivilu’s health challenges while she was away.
After denying maternity leave, the employer also denied her sick-off and ordered her back to work.
The judgement says Kaivilu continued working despite experiencing considerable difficulty during that period.
Kenyan employment law expressly protects maternity leave and prohibits discriminatory treatment based on pregnancy.
The Employment Act provides female employees with three months’ maternity leave with full pay.
KSh2m Counterclaim
The Board entered the dispute with a separate KSh2 million counterclaim against Kaivilu.
It accused her of performing private assignments during working hours using employer resources.
The Board also alleged that she changed an office Apple computer’s password without authorisation.
It further claimed that Kaivilu deleted files belonging to the organisation from that machine.
The employer said it hired Esobyte East Africa to reset access and recover deleted information.
According to its evidence, the recovery exercise retrieved thousands of documents from the computer.
The Board claimed those efforts cost approximately KSh2 million in total.
But the court found critical gaps in the evidence supporting those allegations.
No invoice or receipt proving the alleged KSh2 million expenditure was presented during trial.
There was also no data-recovery report demonstrating what had happened to the computer.
The employer further failed to establish that Kaivilu had used the particular machine.
Its own witness admitted there was no evidence proving Kaivilu performed private assignments during working hours.
The judge therefore described the counterclaim as “largely speculative” and dismissed it.
The final award included KSh121,085 for notice and KSh1,210,850 for unfair termination.
The court then added KSh1 million for discrimination and unfair treatment.
The award totalled KSh2,331,935, subject to statutory deductions, plus costs and court-rate interest.
The judgement ultimately turned on more than a disputed performance assessment.
It examined whether an employer could retrospectively extend probation after failing to act earlier.
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It also examined whether alleged poor performance could justify dismissal without documented evaluation.
For Kaivilu, the answer was decisive: the termination failed both substantive and procedural fairness.
For the Board, the KSh2.33 million award ended a seven-year employment dispute with substantial legal consequences.
The ruling also reinforces the importance of documented performance processes before employers make termination decisions.
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