Mbugua v New Muthokinju Hardware Ltd (Cause E197 of 2023) [2025] KEELRC 748 (KLR)
The bottom line
#Kenya's Employment Court confirmed that probationary employees are entitled to fair hearing before termination, awarding the claimant compensation despite her probation status.
What this practically means
#Executive summary
#Key legal issues
#Whether the Claimant was still under a probationary contract at termination
The Claimant started on 15th June 2022, so her 6-month probationary contract ended on 15th December 2022; she was still on probation at termination and her employment was not confirmed by operation of law.
The contract on the face of the Respondent's copy indicated the start date of 15th June 2022, consistent with the recommendation letter from the former employer showing service until 14th June 2022. Simple arithmetic fixed the end of the 6-month probation at 15th December 2022, defeating the claim that over six months of service had confirmed the employment by operation of law.
Whether she was unfairly terminated
The termination was unfair and unlawful: the notice of the appraisal meeting was too short, issued on a public holiday, and did not indicate that termination was on the agenda; a probationary employee is entitled to Section 41 procedural fairness and substantive justification.
Following Monica Munira and Evans Kiage Onchwari, Section 42(1)'s exclusion of probationary employees from Section 41 safeguards is unconstitutional. The email of 12th December 2022 merely referenced 'the way forward of your appraisal', gave one day's notice on a public holiday and did not disclose that termination was at stake, amounting to trial by ambush. The Respondent also failed to show a fixed-term self-terminating contract.
Whether the Claimant deserves the remedies sought
Notice pay and prorated leave claims failed; holiday pay succeeded as uncontroverted; one month's salary awarded as compensation for unfair termination.
The Claimant admitted receiving notice pay, December salary and mileage, and taking 5 days' leave, defeating those heads. The Respondent led no evidence to displace the holiday pay claim. For compensation, the court considered that she did not appeal her appraisal rating and served to the end of the probation period, justifying only one month's salary rather than the 12 months' maximum.
Legal principles established
#- An employee under a probationary contract is entitled to the procedural safeguards in Section 41 of the Employment Act following the declaration of unconstitutionality of the exclusion in Section 42(1).
- Fixed term contracts cannot at the same time be probationary contracts; a probationary contract is confirmed or terminated at the end of its period.
- An employee serving under a probationary contract is entitled to both fair procedure and substantive justification before termination.
Court orders
#- 1.A declaration that the Claimant's termination was unfair and unlawful
- 2.1 month's salary as compensation for the unfair termination at Kshs. 242,000/=
- 3.Holiday pay at Kshs. 55,846/-
- 4.The Respondent shall bear the costs of the suit and interest from the date of this judgment until payment in full
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (employment dispute)
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.
- Muga v CCI Kenya Limited (Cause E151 of 2023) [2025] KEELRC 2980 (KLR)[2025] KEELRC 2980 (KLR)30 Oct 2025applied
Cite this brief
#Cite this brief
Caselaw, "Mbugua v New Muthokinju Hardware Ltd (Cause E197 of 2023) [2025] KEELRC 748 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/748/eng@2025-03-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.