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ELRCPartially AllowedNot stated in the judgment· [2025] KEELRC 748 (KLR)

Mbugua v New Muthokinju Hardware Ltd (Cause E197 of 2023) [2025] KEELRC 748 (KLR)

Employment and Labour Relations Court
13 March 2025
3,623 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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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

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Executive summary

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The Claimant, engaged as a Retail Manager, sued for one month's pay in lieu of notice, prorated leave, holiday pay and 12 months' compensation for allegedly unlawful termination following a letter of 'unsuccessful Probation' dated 19th December 2022. The Respondent maintained that she was on a 6-month fixed-term probationary contract commencing 15th June 2022, which expired by effluxion of time after two appraisals, with a hearing on 13th December 2022 and payment of full final dues including 7 days' notice pay. The court framed three issues: whether the Claimant was still on probation at termination; whether the termination was unfair; and whether remedies were deserved. The court found the start date to be 15th June 2022, so the probationary contract ended on 15th December 2022 and was not confirmed by operation of law. Applying Monica Munira Kibuchi v Mount Kenya University and Evans Kiage Onchwari, it held that probationary employees enjoy Section 41 procedural safeguards, as the exclusion in Section 42(1) is unconstitutional. The one-day notice of the appraisal meeting, issued on a public holiday and without disclosing that termination was at stake, amounted to trial by ambush. The court also rejected the characterization of the probationary contract as a self-terminating fixed-term contract. The Claimant was awarded a declaration of unfair and unlawful termination, one month's salary as compensation (Kshs. 242,000/=) and holiday pay of Kshs. 55,846/=. The notice pay and leave claims were dismissed; the Respondent was ordered to pay costs and interest.

Key legal issues

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01

Whether the Claimant was still under a probationary contract at termination

Holding

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.

Reasoning

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.

p. 6
02

Whether she was unfairly terminated

Holding

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.

Reasoning

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.

p. 7
03

Whether the Claimant deserves the remedies sought

Holding

Notice pay and prorated leave claims failed; holiday pay succeeded as uncontroverted; one month's salary awarded as compensation for unfair termination.

Reasoning

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.

p. 8

Legal principles established

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  • 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

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  1. 1.A declaration that the Claimant's termination was unfair and unlawful
  2. 2.1 month's salary as compensation for the unfair termination at Kshs. 242,000/=
  3. 3.Holiday pay at Kshs. 55,846/-
  4. 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

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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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.