Adipo v Self Help Africa (Cause E019 of 2024) [2025] KEELRC 1155 (KLR)
The bottom line
#Kenyan employers must follow fair hearing procedures even when terminating staff on probation, the Employment and Labour Relations Court confirmed.
What this practically means
#Executive summary
#Key legal issues
#Applicability of Section 41 to probationary contracts
Section 41 of the Employment Act applied to the claimant notwithstanding her probationary status, following Monica Munira Kibuchi
The court noted two schools of thought on Section 42, but since the facts arose after the three-Judge Bench decision in Monica Munira Kibuchi declaring Section 42(1) unconstitutional to the extent it excludes probationary employees from Section 41, that decision was applicable. However, the employer's discretion to confirm or not confirm a probationary employee was preserved.
Duty to state reasons for termination
The respondent was bound to identify the reasons for termination but failed, as the termination letter carried no reason and the purported poor-performance reason was introduced at hearing without documentary support
The termination letter contained no reason. The claimant's response queried the reasons, which the respondent misconstrued. The witness introduced underperformance at hearing but had no minutes, appraisals or documented meetings to substantiate it; reasons not given at termination cannot be supplied at hearing.
Procedural fairness under Section 41
Termination was procedurally flawed for non-compliance with Section 41's mandatory hearing requirements
Relying on Pius Machafu Isindu, Postal Corporation v Tanui and Jane Samba Mukala, the court held the employer must explain grounds, hear the employee in the presence of a colleague, and consider the explanation. No verifiable evidence showed the claimant was informed of underperformance, afforded a hearing or a chance to improve.
Compensation under Section 49
Equivalent of one month's gross salary (Kshs.300,000) awarded instead of the 12 months sought
The court considered that the claimant was still on probation, had served only about 4 months and three weeks, had no previous warning or disciplinary matter, did not appeal, and contributed to the termination as email exchanges revealed; hence one month's salary was fair.
Legal principles established
#- For a termination to pass muster, the employer must show both a valid and fair reason and procedural fairness
- Section 42(1) of the Employment Act is null and void to the extent it excludes probationary employees from Section 41 procedural safeguards, so Section 41 applies to probationary contracts
- A termination without stated reasons, non-compliance with Section 41 procedure and no recorded warning letter is unfair
Court orders
#- 1.Declaration that termination of the claimant's employment by the respondent was unfair
- 2.Equivalent of one (1) month's gross salary, Kshs.300,000.00
- 3.50% of the costs of the suit
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act (Sections 41, 42, 43, 45 and 47(5) invoked); Article 41 of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Adipo v Self Help Africa (Cause E019 of 2024) [2025] KEELRC 1155 (KLR)", Case Analysis (2025). Cause No E019 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1155/eng@2025-04-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.