Understanding Probationary Contracts In Kenya

Probationary contracts are a common feature in employment relationships, especially during the initial phase of engagement. Probationary periods allow employers to assess a new employee’s suitability for a role. In Kenya, these contracts are governed by the Employment Act, 2007.

Section 2 of the Employment Act (the Act) defines probationary contracts as a contract of employment, which is of not more than twelve months duration or part thereof, is in writing and expressly states that it is for a probationary period.

The probationary period is limited to six months, but can be extended with the employee's consent for a further period of not more than six months. The total probationary period must not exceed twelve months.

Termination of probationary contracts

Notice Requirements

Either party may terminate a probationary contract by providing at least seven days’ notice in writing or making payment in lieu of notice, equivalent to seven days’ wages.

Where the contract provides for a longer notice period, the employer or employee must comply with the contractual notice period or provide payment in lieu of that longer notice, despite the statutory minimum of seven days.

Procedural Fairness

Section 42(1) of the Employment Act seeks to exclude probationary employees from the procedural safeguards which mandates a fair hearing before termination. However, recent court decisions have challenged this exclusion.

In the case of Monica Munira Kibuchi & 6 others v Mount Kenya University; Attorney General (Interested Party) [2021] eKLR, a three Judge Bench declared Section 42(1) of the Employment Act null and void citing it was inconsistent with constitutional provisions on fair labour practices and the right to a fair administrative action.

Case Summary: Monica Munira Kibuchi & 6 others v Mount Kenya University [2021]

The Petitioners had applied for a job posted by Mount Kenya University. After successful interviews, they began working on probationary terms until April 2016, when they were terminated. The Petitioners received termination letters along with 14 days' salary in lieu of notice, as outlined in their contracts.

Believing the termination was unjust, the employees challenged the fairness of their dismissal in court. Specifically, they sought a declaration that Section 42(1) of the Employment Act which excludes probationary employees from the protection provided under Section 41 of the Act. Section 41 of the Act requires employers to comply with procedural and substantive justice in the termination of employment of employees.

Case Determination

In its determination, the three-Judge Bench declared Section 42(1) of the Employment Act null and void to the extent that it excluded an employee holding a probationary contract from the provisions of Section 41 of the Employment Act. The court acknowledged that the employer had acted in accordance with the law as it stood at the time of termination.

Impact of the court’s ruling on termination of probationary contracts

In light of the court’s ruling, the termination of probationary contracts now requires adherence to the procedural fairness outlined in Section 41 (1) of the Act.

This section mandates that employers must notify an employee of the reasons for termination, whether due to misconduct, poor performance, or physical incapacity. Additionally, employees must be provided with an opportunity to be heard, and they have the right to be accompanied by a representative of their choice or another employee during the hearing.

This ensures that probationary employees, like their term counterparts, are afforded the constitutional protections of fair treatment before termination.

Conclusion

The decision in the case of Monica Munira Kibuchi illuminate the critical principle that probation is not a period of legal vulnerability, but a phase protected by the rule of law. Employers are now unequivocally required to adhere to the standards of fairness, including notification, justification, and the right to be heard, even when dealing with employees under

probation or short-term contracts. For both employers and employees, the message is clear: constitutional protection extends to every stage of the employment relationship. As the courts continue to interpret employment law, it is imperative for employers to revisit their human resource practices and align them with these evolving legal standards.

How we can help

At CM Advocates LLP, we provide comprehensive legal support in all matters relating to employment and labour law. Our team of skilled employment lawyers advises both employers and employees on the drafting, review, and enforcement of employment contracts including probationary and permanent contracts. We ensure that the employment contracts of our clients are fully compliant with the Employment Act, the Constitution, and evolving judicial interpretations. Whether you’re looking to implement sound HR practices, navigate employee laws, or resolve workplace disputes, we help you mitigate risk, maintain regulatory compliance, and uphold fair labour standards at every stage of the employment relationship.

Contributors

Amy Onderi-Trainee Advocate

Emily Gitau-Associate Advocate