Maina v Takaful Insurance of Africa Limited (Employment and Labour Relations Cause E872 of 2021) [2025] KEELRC 76 (KLR)
The bottom line
#A Kenyan employer who silently lets probation expire cannot later extend it or fire without full Employment Act protections.
What this practically means
#Executive summary
#Key legal issues
#Lawfulness of termination of employment after expiry of probation period
The termination was unlawful and unfair; the probation having expired without extension, the Claimant was deemed confirmed and entitled to statutory protections.
The initial three-month probation lapsed on 14/1/2021 without written extension. The letter of extension dated 19/3/2021 was received on 16/4/2021, over three months after expiry. Continued work in the appointed position gave rise to legitimate expectation of confirmation, and the Respondent was estopped from extending the expired probation. Sections 36, 41, 43 and 45 of the Employment Act therefore applied, requiring one month's notice, a notice to show cause and a hearing, none of which was accorded.
Whether the Respondent proved a valid reason for termination
The Respondent failed to discharge the burden under sections 43, 45 and 47(5) of proving a valid reason; no appraisal signed by the employee was produced.
RW1 admitted that appraisals had to be signed by both employee and supervisor, yet none was produced. The recommendation progress confirmation report had no input from the Claimant, and the head of department had rated the employee fit for confirmation. The court found the Respondent did not lawfully evaluate the Claimant's performance and thus did not prove poor performance as a valid reason for termination.
Reliefs entitlement
The Claimant was entitled to one month's pay in lieu of notice and compensation of five months' salary under section 49(1)(c) and (4).
Having found the termination unlawful and unfair, the court considered the Claimant's loss of legitimate expectation to continue serving at a monthly salary of Kshs. 180,000, loss of career prospects, lack of contribution to the termination, non-payment of terminal benefits, and relocation to the USA, and, following two comparable authorities, awarded five months' salary plus one month's notice pay.
Legal principles established
#- An employer must notify an employee of an intended extension of probation during or on the expiry date of the initial probation period; failing which, the employee is deemed confirmed and the employer is estopped from extending probation retrospectively.
- Once the probationary period lapses without extension, statutory protections under sections 36, 41, 43 and 45 of the Employment Act apply to the contract, requiring notice, a fair procedure and a valid reason for termination.
Court orders
#- 1.Kshs. 180,000.00 in lieu of one-month notice
- 2.Kshs. 900,000.00 being the equivalent of five months' salary (180,000 x 5) as compensation for unlawful and unfair termination
- 3.Total award of Kshs. 1,080,000.00 with interest at court rates from the date of judgment till payment in full
- 4.Costs of the suit to the Claimant
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (sections 36, 41, 43, 45, 47(5) and 49 applied)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Maina v Takaful Insurance of Africa Limited (Employment and Labour Relations Cause E872 of 2021) [2025] KEELRC 76 (KLR)", Case Analysis (2025). Not stated in the judgment text provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/76/eng@2025-01-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.