Kibuchi & 6 others v Mount Kenya University; Attorney General (Interested Party) (Petition 94 of 2016) [2021] KEELRC 2310 (KLR)
The bottom line
#Kenya's Employment Court has ruled that probationary employees must be given a fair hearing before termination, despite what the Employment Act says.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether this Court has jurisdiction to determine constitutional petitions
- 2.Whether Section 42(1) of the Employment Act is inconsistent with the Constitution hence null and void to that extent
- 3.Whether in terminating the services of the Petitioners the Respondent was bound but failed to abide by the provisions of Section 41 of the Employment Act and, as a corollary, whether the Petitioners are entitled to the remedies sought in the Petition
Key legal issues
#Jurisdiction of the ELRC over constitutional petitions
The ELRC, like the High Court and ELC, has jurisdiction to determine constitutional questions arising within its delimited jurisdiction under Article 165(5)
The Court adopted the dictum of Majanja J in United States International University v Attorney General, holding that labour and employment rights are part of the Bill of Rights protected under Article 41, within the province of the Industrial Court. Excluding the Industrial Court from constitutional interpretation arising from employment relationships would create parallel jurisdiction, forum shopping and undermine consistent application of employment law.
Constitutionality of Section 42(1) of the Employment Act
Section 42(1) is unconstitutional insofar as it excludes probationary employees from Section 41's procedural safeguards, being inconsistent with Articles 24, 41 and 47
The Court noted divided local jurisprudence (Rika J in Danish Jalang'o versus Ndolo J in Evans Kiage Onchwari) and sampled comparative South African and Canadian jurisprudence showing a confluence that probationary employees ought to be heard. Reading Section 41 with Section 42(2) (which requires employee concurrence for extension of probation) renders Section 42(1) illogical. Limitation of labour rights by mere reason of length of service does not meet the Article 24 threshold; the exclusion of audi alteram partem is not reasonable and justifiable in an open and democratic society.
Liability of the Respondent for terminating without a hearing
The Respondent is not liable because it honestly applied the law as enacted before this judgment
Although Section 42(1) was found unconstitutional, the Respondent had relied on the statute as enacted by Parliament, which expressly excluded probationary contracts from Section 41. It would be unjust to condemn a party for applying a law that was, at the material time, the operative law of the land, even though it was later found inconsistent with the Constitution.
Legal principles established
#- Section 42(1) of the Employment Act is unconstitutional to the extent that it excludes probationary employees from the procedural safeguards of Section 41
- Labour rights are part of the Bill of Rights and any limitation must satisfy Article 24
- The ELRC has jurisdiction to determine constitutional questions arising within its employment and labour jurisdiction
Court orders
#- 1.A declaration that to the extent that Section 42(1) of the Employment Act, 2007 excludes employees having probationary contracts from the provisions of Section 41, it is inconsistent with Articles 24, 41 and 47 of the Constitution
- 2.The Court declined to declare that in terminating the Petitioners' probationary contracts the Respondent violated their constitutional rights and Section 41 of the Employment Act, since the Respondent relied on Section 42(1) of the Act as enacted
- 3.No order for compensation as prayed by the Petitioners
- 4.No order as to costs, the Petition being partially successful and involving an important question in the development of Employment Law
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
Wrote the judgment
- Jurisdiction invoked
- Article 162(2) of the Constitution and the Employment and Labour Relations Court's jurisdiction to determine constitutional questions arising within its delimited jurisdiction under Article 165(5) of the Constitution
Relief refused
#Declaration that the Respondent's decision to terminate the Petitioners was unconstitutional, null and void
The Respondent honestly applied the law as enacted prior to this judgment; it would be unjust to condemn it for applying a statute later found unconstitutional
Payment of the balance of contractual periods
Flows from the finding that the Respondent could not be faulted for applying the impugned law
Payment of Kshs.1 million to each of the 7 Petitioners for failure to accord a fair hearing
No compensation order could issue given the finding on the Respondent's reliance on the then-existing law
Costs
No order as to costs - 'The Petition being partially successful and involving an important question in the development of our Employment Law, no order will be made regarding costs.' (Each party to bear own costs.)
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
To the extent that Section 42(1) of the Employment Act, 2007 excludes employees having probationary contracts from the provisions of Section 41, it is inconsistent with articles 24, 41 and 47 of the Constitution.
we find and hold that Section 42(1) insofar as it excludes an employee holding a probationary contract from the provisions of Section 41 of the Employment Act, is inconsistent with Articles 41 and 47 of the Constitution hence null and void
The Court will not declare that in terminating the Petitioners' probationary contracts, the Respondent violated their constitutional rights and Section 41 of the Employment Act since the Respondent relied on the provisions of Section 42(1) of the Act as enacted by Parliament
The Petition being partially successful and involving an important question in the development of our Employment Law, no order will be made regarding costs.
Apart from life and land ownership, employment ranks among the most emotive issues in a person's life.
it is necessary to emphasize the need for the Attorney General to review and where in concurrence, initiate necessary legislative repeal or amendment of the statute or sections thereof declared unconstitutional.
Issues in the judgment
#The Petition pleads the unconstitutionality of Section 41(2) in its prayers, but the substance of the case and the judgment concern Section 42(1) of the Employment Act
The judgment inconsistently dates the memo referred to in the submissions as 14th April 2016 in the Petition and 14th April 2015 in the Court's recital of submissions
The judgment states that Article 47 was breached but then describes termination notice, which is an Article 50 fair hearing point
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Orkistudio Company Ltd v MAV & another (Civil Appeal 148 of 2020) [2026] KECA 1065 (KLR)[2026] KECA 1065 (KLR)29 May 2026followed
Cite this brief
#Cite this brief
Caselaw, "Kibuchi & 6 others v Mount Kenya University; Attorney General (Interested Party) (Petition 94 of 2016) [2021] KEELRC 2310 (KLR)", Case Analysis (2021). Petition dated 23rd June, 2016 (number not stated in the judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/2310/eng@2021-07-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.