Question 1

a. i. In view of Trizah’s situation, explain to her what is meant by probationary

contract and the legal position of her dismissal.
Duration of the probationary period

There is no law setting the length of the trial period. However, the employer is expected to be
reasonable. A probationary period does not generally last more than six months or three months for
an internal transfer to a new post. The trial period can sometimes be extended, but this must be
stated in the employment contract.

When an employee encounters difficulties during the trial period

If the employee experiences any issues at any point during the probationary period, the manager
should discuss them with the employee and not wait for the next scheduled job interview. The main
objective is to achieve a sustainable increase in performance and to ensure that the employee has
enough opportunities to do so. The following approach should be considered at each appraisal
session with the employee when issues need to be resolved.

• Reinforce areas where the employee feels good.

• Be open and honest with the employee about their shortcomings. If possible, provide supporting
documents.

• Let the employee answer. A number of other factors can be causing the problem.

• Try to agree on the nature of the problem. If mutual agreement can be found, the employee reacts
more positively to suggestions for improvement.

• Provide advice and support to overcome difficulties. This may include additional training / coaching
or more intensive counseling.

• Ensure that the employee understands the required progress and that a properly completed trial
period depends on it.

• Inform the employee that the employment relationship must be terminated if this standard is not
met.

• In the event of misconduct, other than gross negligence (where termination without notice is
appropriate), advise the employee that the employment relationship will be terminated with
immediate effect in the event of subsequent errors.

Termination of the contract

While an employee may not be entitled to a wrongful dismissal during the first two years of service,
an employee may request a wrongful dismissal that does not require a complaint, if you fire
someone without going through a dismissal process. appropriate. Unjustified dismissal occurs when
an employer terminates an employee in violation of the employer's contractual or statutory
obligations, for example by not following a disciplinary / contractual dismissal procedure or by failing
to give a contractual dismissal. Employers may be required to pay damages for unjustified dismissal
in the event of a dispute in the labor court. It should also be noted that if the person has a trait
protected under equality law (for example, if they are disabled), there is a potential risk that they
will claim discrimination and this is something that you have to keep in mind when making a
decision.

ii.  Given Obwaka’s case, advise Data Experts whether Obwaka qualifies to bring a
claim for unfair dismissal. 

Obwaka qualifies to bring a claim for unfair dismissal on the following grounds

Time Limits

He must assert his right to unjustified termination within six months of the date of
termination. If he is bankrupt, he can extend this period up to 12 months from the date of
termination. However, the reason must be strong and convincing - to say that he did not know
that the law would not be enough. According to the law on termination, the date of
termination is the day on which the termination is justified.

Period of service

Normally, you must have been with your employer for at least twelve consecutive months
before you can submit an unjustified dismissal. An uninterrupted employment relationship
usually only ends if the employer terminates you or if you terminate your employment
relationship.

Employment status

To be legally employed, you must be working for an employer under a "contract of service".
This is different from a "service contract" where a contractor or self-employed person
provides a service for a fee. If you work for an agency, you can usually file a wrongful
dismissal law complaint against the employer who employed you at the agency.

The actual discharge

You must have been refused to claim. The only exception to this rule is dismissal without
notice when you resign but claim that your employer's behavior towards you has forced you
to resign. If your employer doubts the reality of the dismissal, you must provide proof. Only
then will your complaint take the next step to determine if the termination was fair. This is a
question your employer must prove.

Assessment decision

Once your employer sends a written statement explaining the reasons for your dismissal, your
request can proceed to the next step. At this point, your complaint will be forwarded to a
labor tribunal commissioner (WRC) to determine if the termination was appropriate.

Remedy

If your unfair dismissal request is successful, the agency that heard your request may take one
of the following actions: reinstatement, reinstatement or compensation.
Restoration

This means that you will be treated as if you have never been released. Re-employment
entitles you to compensation for loss of income between the day of dismissal and the day of
the hearing as well as beneficial changes in employment conditions during this period, such
as salary increases. This remedy is rarely used.

Reinstatement

Re-engagement means that you don't get your job back until a certain date, such as the day of
your decision. This means that you are not entitled to compensation for loss of income. This
measure is often used when the judge considers that the employee contributed to the
dismissal, even if the actual dismissal was unjustified. This remedy is rarely used.

replacement

This is the most common solution that only compensates for financial losses. In general, the
maximum compensation is two annual salaries. If you have been fired for protected release,
the maximum salary is 5 years. You cannot claim compensation for issues such as: B.
Emotional damage or stress caused by termination.

b.     Discuss the legal positions of Data Experts, Obwaka and Kopesha Motors Limited
under the hire purchase agreement. 

Guarantees of the data expert

(1) Unless otherwise provided in this Law, a surety shall not be released from his surety by
reason of the effect of this Law.

(2) The surety remains liable even if the landlord has taken back the goods it contained in
accordance with the provisions of a rental agreement (and whether the goods have been
delivered to or to the order of the tenant or not in accordance with this law) . Nothing in this
paragraph serves to maintain a warranty obligation if the landlord and tenant have entered
into a new contract for the goods contained in a rental agreement.

(3) No surety is bound by a measure other or different than the tenant, whose performance he
has guaranteed; Subject to article 19, however, this law does not affect any agreement of the
suretyship which commits it to the performance of an obligation which is not part of the
obligations of the tenant under the rental agreement for which the warranty is supported.

(4) If the tenant has delivered goods to the customer under a lease and these are subsequently
taken back by the landlord, the surety who paid the landlord money in accordance with his
guarantee has the same right to recover this sum in the same way as he would have done if he
had been tenant of the goods, but to calculate the amount received from the owner, calculate
all the sums paid and the value of any other compensation paid by or in the name of the
tenant under the contract: are deemed to be paid by the surety or returned.

(5) Without prejudice to paragraph 4, the surety may not demand a sum in addition to that
which he has actually paid in accordance with his surety.

(6) At any time before final payment under a rental agreement, the landlord must send him a
copy of the warranty agreement within 14 days of receiving a written request from a
guarantor. However, an owner is not obliged to act on the request if he has sent a copy of the
guarantee contract within three months immediately preceding receipt of the request.

c.      Submit your recommendations to Obwaka regarding his intentions to apply for

bankruptcy.

I would advise Obwaka to have an alternative to bankruptcy

Bankruptcy is serious. You have to give up valuables and interest in your home. But you
don't have to go bankrupt because you are in debt.

Instead, you can try to make arrangements with your creditors, including:

• Informal arrangements - you write to your creditors to agree on a repayment schedule.

• Individual Voluntary Arrangements (IVA) - a liquidator will help you negotiate repayment
terms.

• Administrative order - The regulatory authority (EJO) asks you to make payments, which
EJO then distributes to your creditors

• Debt relief if you can't pay and owe no more than Kes 2,000,000

Debt relief is a formal bankruptcy process for people who cannot pay their debts and have no
assets, low income, no other access to debt relief, and no prospect of debt relief.
'improvement.

When people are wealthy or there is an opportunity to improve economic conditions, a

scrutineer is not an appropriate solution.