For years, many Kenyan employers believed they could terminate probationary employees at will, that is without warning, reason, or a fair hearing. This led to numerous probationary contracts ending abruptly and without proper process.
This practice was largely based on Section 42 (1) of the Employment Act, 2007 (“the Employment Act”), which excludes probationary contracts from the procedural safeguards afforded to permanent employees.
While this has been the law, recent court decisions have dismantled the notion that probation means no more protections Our courts are rewriting the rules.
Courts Are Rewriting the Rules
a. Kibuchi Case: A Constitutional Challenge Emerges
In Monica Munira Kibuchi & 6 others v Mount Kenya University [2021] eKLR, the Court highlighted that denying fair process based solely on length of service contradicts constitutional guarantees particularly those relating to fair labour practices and fair administrative action.
Though, the Court in the Kibichu case did not formally strike down the ambiguity of Section 42 (1) of the Employment Act, it made clear that constitutional rights apply to all employees, including those on probation.
b. Ambogo Case: A Clearer Position
Then came Enos Ambogo v Sameer Agriculture and Livestock (Kenya) Ltd [2023] KEELRC 2257. The Court took a stronger stance, holding that probationary employees must be given a hearing before termination. The Court described relying on Section 42 (1) of the Employment Act to justify at-will termination as “misguided,” firmly prioritizing constitutional fairness over statutory ambiguity.
What Does This Mean for Employers?
Employers must now treat probation as part of the broader framework of fair labour practices. This includes:
- Notifying probationary employees of any performance issues or allegations of misconduct;
- Allowing them to respond and present evidence;
- Holding disciplinary hearings to give them a fair opportunity to be heard; and
- Properly documenting the entire termination process.
In short, termination must be for a valid reason and follow a fair process.
Why This Matters
Ignoring due process during probation opens employers to claims of unfair dismissal, legal liability, and reputational harm. The era of unchecked probationary terminations is over.
The Bottom Line
Probation is no longer a legal loophole. It’s a phase of employment that demands fairness, transparency, and constitutional compliance, just like any other stage and just like any other employee.
To avoid legal risks, employers should now embark on updating employment contracts and HR policies to reflect this evolving reality because even probation deserves process. So, the next time you think probationary employees can be terminated at will, well, think again.