Termination During Probation in Kenya: Interpreting Sections 42(1) and 47(6) of the Employment Act in Light of Recent Case Law

Introduction

Employment termination during probation has historically been treated as a relatively low-risk exercise for employers in Kenya. Sections 42(1) and 47(6) of the Employment Act, 2007 appeared to grant employers wide latitude by limiting procedural protections and restricting complaints by probationary employees. Many organisations relied on these provisions to terminate employees during probation without extensive process or documentation.

However, this position has undergone a fundamental shift following the 2010 Constitution and subsequent judicial interpretation. Kenyan courts have increasingly held that statutory provisions must be read in conformity with constitutional guarantees, particularly the right to fair labour practices under Article 41. As a result, Sections 42(1) and 47(6) no longer operate as absolute shields for employers.

This article provides a comprehensive analysis of how Kenyan courts have interpreted these provisions together, the current legal position, and the practical implications for large organisations.

The Statutory Position: Sections 42(1) and 47(6) of the Employment Act

Section 42(1): Exclusion of Procedural Safeguards

Section 42(1) of the Employment Act provides that the procedural protections under Section 41, particularly the requirement for a disciplinary hearing, do not apply where termination occurs during a probationary contract. On a strict reading, this suggests that employers are not required to conduct a formal hearing before terminating a probationary employee.

Section 47(6): Limitation on Complaints

Section 47(6) provides that:

“No employee whose services have been terminated or who has been summarily dismissed during a probationary contract shall make a complaint under this section.”

This provision appears to bar probationary employees from lodging complaints relating to unfair termination under the statutory framework.

Combined Effect (Traditional Interpretation)

Read together, Sections 42(1) and 47(6) created a regime where:

Employers were not required to follow the Section 41 hearing process; and
Employees on probation had limited recourse in challenging termination.

This interpretation led to the widespread belief that termination during probation could be effected with minimal legal risk.

Constitutional Shift: Reinterpreting Probationary Employment

The promulgation of the Constitution of Kenya, 2010 significantly altered this position. Article 41 guarantees every worker the right to fair labour practices, while Articles 47 and 50 guarantee fair administrative action and fair hearing.

In Monica Munira Kibuchi & 6 Others v Mount Kenya University [2021] eKLR, the Employment and Labour Relations Court (constituted as a three-judge bench) addressed the constitutionality of Section 42(1). The court held that excluding probationary employees from procedural fairness is inconsistent with the Constitution unless it can be justified under Article 24.

The court emphasised that:

Labour rights apply to all employees, including those on probation;
Procedural fairness is a fundamental component of fair labour practices; and
Blanket statutory exclusions must yield to constitutional protections.

Although the decision focused on Section 42(1), its reasoning has been extended to the interpretation of Section 47(6).

Judicial Interpretation of Sections 42(1) and 47(6)

No Absolute Exclusion of Probationary Employees

Kenyan courts now take the position that Sections 42(1) and 47(6) cannot be interpreted to completely exclude probationary employees from legal protection.

In Red Lands Roses Limited v Mugo [2025] eKLR, the Court of Appeal affirmed that all employees, including those on probation, are entitled to fair labour practices. The court emphasised that statutory provisions must be interpreted in a manner that promotes constitutional rights rather than limits them.

This decision reinforces the principle that probationary status does not extinguish an employee’s right to challenge unfair termination.

Procedural Fairness Still Applies

While Section 42(1) limits the strict application of Section 41, courts have clarified that this does not eliminate the requirement for fairness altogether.

In Postal Corporation of Kenya v Andrew K. Tanui [2019] eKLR, the Court of Appeal outlined the essential elements of procedural fairness, including notification of allegations and an opportunity to respond. These principles have been applied broadly, including in probationary contexts.

Courts now expect employers to demonstrate that termination during probation was carried out fairly, even if the process is less formal than that required for confirmed employees.

Section 47(6) Does Not Oust Court Jurisdiction

Section 47(6) has also been interpreted narrowly. Courts have held that while it may limit administrative complaints under Section 47, it does not bar employees from filing claims before the Employment and Labour Relations Court.

In practice, probationary employees continue to file and succeed in claims for unfair termination, particularly where the employer fails to demonstrate fairness or justification.

Emerging Judicial Position

The current position emerging from Kenyan jurisprudence is that:

Sections 42(1) and 47(6) are not unconstitutional per se, but their application is limited;
They do not exclude probationary employees from constitutional protection;
Employers must still demonstrate fairness, reasonableness, and justification; and
Courts will intervene where termination is arbitrary or procedurally deficient.

Practical Implications for Employers

Probation Does Not Eliminate Legal Risk

For large organisations, probation can no longer be treated as a risk-free termination window. Courts will scrutinise termination decisions even where the employee is still under probation. Employers must therefore ensure that termination decisions are supported by valid reasons and a fair process.

Need for Structured Probation Management

Organisations should implement structured probation management frameworks that include clear performance expectations, periodic reviews, and documented feedback.

Where performance concerns arise, employees should be informed and given an opportunity to improve. This aligns with judicial expectations and strengthens the employer’s position in the event of a dispute.

Increased Exposure to Claims

Failure to follow a fair process may result in findings of unfair termination and awards of compensation under Section 49 of the Employment Act. Courts have demonstrated a willingness to grant remedies even where termination occurs during probation.

Best Practices for Corporate Employers

Employers should ensure that probation clauses in employment contracts are clearly drafted and compliant with the law. Performance expectations should be communicated from the outset, and regular evaluations should be conducted and documented.

Where termination is contemplated, employers should provide the employee with reasons and an opportunity to respond, even if a full disciplinary hearing is not conducted. Decisions should be documented and supported by evidence. Legal oversight is particularly important in high-risk or senior-level terminations. A structured and compliant approach will significantly reduce exposure to litigation.

Conclusion

Sections 42(1) and 47(6) of the Employment Act, 2007 were originally intended to limit the procedural and substantive protections available to probationary employees. However, judicial interpretation in the post-2010 constitutional era has significantly narrowed their application.

Courts have made it clear that probationary employees are entitled to constitutional protection, including the right to fair labour practices and fair administrative action. Employers must therefore ensure that termination during probation is justified, reasonable, and procedurally fair.

For large organisations, the key takeaway is clear: probation is no longer a legal safe zone. A structured, transparent, and compliant approach is essential to avoid costly employment litigation.

Facing Termination of Employment Legal Matter?

If your organisation is managing probationary employees or making termination decisions, it is essential to align your processes with current legal standards and judicial expectations.

F.M. Muteti & Co. Advocates provides specialised employment law advisory to corporate clients, including guidance on probation management, termination procedures, and litigation defence. We work closely with HR and management teams to ensure compliance and minimise legal risk.