Makori v Independent Medico-Legal Unit (Cause E028 of 2023) [2025] KEELRC 820 (KLR)
The bottom line
#If your probation ends and your Kenyan employer does nothing, you're confirmed by law — firing you then requires full due process.
What this practically means
#Executive summary
#Key legal issues
#Whether the Claimant was still on probation at the time of termination on 9th/10th March 2023
The probationary period ended on 28th February 2023; absent a mutually agreed extension, the Claimant stood confirmed into his term contract and was entitled to section 41 procedural safeguards and section 45 substantive justification
The court found the probation period expressly ran to 28th February 2023. Section 42(2) permits extension only with the employee's consent, and no evidence of a mutual agreement to extend was produced. Relying on Peris Nyambura Kimani v Dalbit Limited, once the probation lapses without action by the employer, the employee is confirmed by operation of law. The Claimant was therefore serving his term contract when terminated, and the Respondent's reliance on the probationary exemption in section 42(1) failed.
Whether the termination was substantively justified and procedurally fair
The termination was unfair: the Respondent failed to comply with sections 41 and 45 of the Employment Act, denying the Claimant an opportunity to respond to the reasons for termination
Having held the Claimant was no longer on probation, the court found the SMT meeting of 9th March 2023 merely communicated a pre-made decision and was not a disciplinary hearing. Citing Jane Wairimu Machira v Mugo Waweru Associates, poor performance terminations require pointing out shortcomings and allowing a reasonable improvement period within a participatory appraisal process. None of this was done; the appraisal was not participatory and no valid reason was established through the mandatory procedure.
Whether the Claimant proved violations of Articles 27 and 41 of the Constitution
No constitutional violation was proved; the claim was a simple employer/employee dispute not warranting constitutional damages
The court held that although the Claimant pleaded discrimination and unfair labour practices under Articles 27(5) and 41, he did not set out with precision the manner of infringement, and the grievances were adequately addressed as ordinary employment claims under the Employment Act. Constitutional remedies were therefore refused and prayers (a) and (b) denied.
What compensation was due given terminal dues already paid
The Claimant was awarded one month's salary as full compensation, having already received two months' notice pay, nine days' salary for March 2023 and pro-rata leave
The Claimant worked only slightly over four months and admitted receiving notice pay, March 2023 salary and pro-rata leave. Balancing the length of service and payments already made, the court exercised discretion under the remedial framework to award one month's salary with interest at 14% per annum from judgment, plus costs and the certificate of service.
Legal principles established
#- Upon lapse of a probationary period without the employer confirming or formally extending it, the employee stands confirmed by operation of law and full procedural safeguards under section 41 of the Employment Act apply to any subsequent termination
- Any extension of probation must be agreed with the employee; it cannot be unilaterally imposed
- Termination for poor performance requires a participatory appraisal process, an opportunity to improve over a reasonable period (2-3 months), and adherence to sections 41 and 45 of the Employment Act
Court orders
#- 1.Judgment entered for the Claimant for unfair termination
- 2.Claimant awarded one month's salary as full compensation being Kshs.207,420/= with interest at 14% per annum from the date of Judgment till full payment
- 3.Claimant entitled to the costs of the suit
- 4.Claimant to be issued with a certificate of service if not already released
- 5.Prayers (a) and (b) of the claim (constitutional damages and 12 months' compensation under section 49(1)(c)) not granted
- 6.Judgment dated, signed and delivered virtually at Nakuru on 7th March 2025
- Jurisdiction invoked
- Article 162(2) of the Constitution / Employment Act (employment and labour relations dispute; enforcement of Article 41 and 27 rights within a statement of claim per Rule 7 of the ELRC (Procedure) Rules)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Makori v Independent Medico-Legal Unit (Cause E028 of 2023) [2025] KEELRC 820 (KLR)", Case Analysis (2025). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/820/eng@2025-03-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.