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:

1. Employers were not required to follow the Section 41 hearing process; and
2. 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:

1. Labour rights apply to all employees, including those on probation;
2. Procedural fairness is a fundamental component of fair labour practices; and
3. 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:

1. Sections 42(1) and 47(6) are not unconstitutional per se, but their application is limited;
2. They do not exclude probationary employees from constitutional protection;
3. Employers must still demonstrate fairness, reasonableness, and justification; and
4. 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.

Contact us today to ensure your employment practices are robust, compliant, and defensible in court.

Matrimonial property in Kenya refers to all assets and liabilities acquired during a marriage, including contributions both monetary and non-monetary.
Marriage is not just a partnership of love, but also a financial and legal union. Many couples in Nairobi underestimate the complexities of matrimonial property, which can lead to disputes or loss of assets during divorce or separation. According to the Judiciary of Kenya’s State of the Judiciary Report 2022‑23, matrimonial and family law matters remain among the most frequently filed categories in Nairobi courts.
Many clients come to us only after assets have been frozen, sold, or hidden. By then, legal options are limited. Early guidance can prevent these losses.
Who This Guide is For:
Newly married couples
Spouses planning divorce or separation
Stay-at-home spouses or non-financial contributors
Business owners or investors married in Nairobi
Whether you’re a stay-at-home spouse, a business owner, or a working professional, your contribution carries legal weight. You deserve clarity and protection.
At F.M. Muteti & Co. Advocates, our Nairobi-based matrimonial property lawyers guide clients through these complex legal matters with clarity and precision.

What is Matrimonial Property?

Under the Matrimonial Property Act, 2013, contributions aren’t purely financial, domestic efforts, childcare, and spousal support are also recognized.
Matrimonial property includes:
Real estate (land, homes)
Vehicles and other movable property
Bank accounts and investments
Business interests
Household items

Key Principles Under the Matrimonial Property Act Kenya

 The Matrimonial Property Act Kenya considers both financial and non-financial contributions, marriage duration, and the needs of children when dividing property. Understanding these principles helps you protect your rights effectively.
 

Key principles include:

Equal Contribution Does Not Always Mean Equal Share – Courts consider both financial and domestic contributions when dividing property.
Ownership Before Marriage – Assets acquired before marriage are generally excluded unless they have been jointly enhanced during the marriage.
Division on Divorce – Courts aim for fair distribution, considering:
Duration of marriage
Each spouse’s contributions
Needs of children and dependents
Prenuptial agreements
For professional guidance, contact our team at F.M. Muteti & Co. Advocates to see how these principles apply in your case.

What Counts as Contribution?

Contributions to matrimonial property take many forms. Understanding which actions are legally recognized, financial, domestic, business, or non-monetary, helps spouses protect their rights and prepare for fair division if disputes arise.
Financial input — paying for property, renovations, loans
Domestic work — managing the household, caring for children
Business or investment involvement — even if not salary-based
Non-monetary support — enabling the other spouse to earn, invest, or acquire assets
In Kenya, the rights of wives and husbands to matrimonial property are recognized equally under the law. Courts carefully consider non-monetary contributions in marriage, such as childcare or managing the home, when dividing assets. This ensures a fair outcome based on all contributions, not just financial ones. Understanding how courts divide property in Kenya divorce cases can help spouses prepare and protect their interests.
If you’re uncertain about how your rights or contributions affect property division, our family law advocates in Nairobi can help you review your position today,  before matters escalate.

How Courts Treat Matrimonial Homes & Land

In Kenya, courts look at both ownership and contribution when deciding what counts as matrimonial property. The focus is on fairness rather than whose name is on the title.
Homes occupied by the couple usually qualify as matrimonial property.
Land acquired during marriage is generally included unless clearly excluded.
Hidden assets or business shares may trigger court investigations.
Our firm has successfully advised numerous spouses on asset protection, settlement negotiation, and court representation across Nairobi and surrounding counties.

Common Matrimonial Property Disputes in Nairobi

In Nairobi, most matrimonial property disputes arise when ownership or contribution isn’t clearly defined.
 These are the issues courts handle most often:
Family homes and jointly-owned land
Business interests in one spouse’s name
Hidden debt or transferred assets
Inheritance or land received during marriage

Steps to Protect Your Matrimonial Property Interests
 

Protecting your assets starts with clarity and preparation. Whether you’re married, separating, or planning ahead, these steps can help you safeguard what’s rightfully yours under Kenyan law.
Document Property Ownership – Maintain clear records.
Consider a Prenuptial Agreement – Clarifies ownership and contributions.
Engage Legal Counsel Early – Understand your rights before disputes.
Understand Your Rights Under the Act – Recognise your role and contribution.
Review Regularly – Families and assets evolve; periodic checks protect you.

Matrimonial Property Rights in Kenya: Frequently Asked Questions

Q1: What qualifies as matrimonial property in Kenya?
 A: Any asset acquired during the marriage contributing to family wealth, including land, vehicles, investments, household goods, and non-monetary contributions.
Q2: Can property owned before marriage become matrimonial property?
 A: Generally no, unless enhanced or jointly managed during marriage.
Q3: How is matrimonial property divided during divorce?
 A: The court considers fairness, contributions, marriage duration, dependents, and prior agreements.
Q4: Do I need a lawyer to protect my property?
 A: While not legally required, engaging a specialised matrimonial property lawyer ensures your rights are understood and safeguarded.
Final Thoughts
Protecting your matrimonial property is essential for financial security and peace of mind. Although the Matrimonial Property Act Kenya lays out the framework, the right legal guidance makes all the difference. If you’re married, planning to marry, or facing separation, it’s time to act.

📞 Get Legal Guidance on Matrimonial Property Today
Speak to our matrimonial property lawyers in Nairobi for confidential advice on asset division, spousal rights, or settlement negotiation.
📞 Call or WhatsApp our team
📧 Email: legal@fmlawadvocates.co.ke
 
 

Introduction

A marriage by cohabitation simply means an arrangement where a couple lives together in a romantic relationship without legal recognition. “Come we stay” unions are not recognized as a type of marriage under the Marriage Act,2014. The five kinds of marriages that are recognized by law are Christian, Civil, Customary, Hindu and Islamic marriages as provided for in Section 6 of the Marriage Act,2014.

 The Marriage Act,2014 provides a definition of “to cohabit’ in Section 2 as a situation where an unmarried couple lives together in a long-term relationship that resembles a marriage. It is important to know the place of marriage by cohabitation in Kenya so as to determine the fate and rights of parties in case of succession and property ownership disputes in the eventuality of death of one party or breakdown of the union.

As family lawyers in Kenya, we often advise clients who are in ‘come we stay’ unions about their rights, especially where issues of succession, matrimonial property division, or child custody arise. Understanding the law on presumption of marriage is crucial for anyone in such a relationship.

Analysis of Marriage by Cohabitation in Kenya

Kenyan courts have also defined marriage by cohabitation and emphasized that it is not equivalent to a legally recognized marriage. The High Court of Kenya in CWN v DK (2021) eKLR held that, regardless of the length of the relationship and the intention of the couple, a cohabiting couple still remains unmarried according to the law. Therefore, cohabitation relationships do not have the same status as that of recognized marriages in Kenya.

Kenyan courts have noted the fact that “come we stay” unions have become prevalent in Kenya. While citing great expenses and time as some of the reasons why couples postpone formal ceremonies, Koome J in Re Estate of Patrick Kibunja Kamau (2008) eKLR pointed out that courts often grapple with these unions when disputes arise. Other reasons include: prior experiences or the desire to never marry.

Couples living in long-term cohabitation often seek legal advisory from family lawyers in Kenya to know whether they can claim rights to matrimonial property, inheritance, or maintenance in case of separation.

Cohabitation marriages go hand in hand with presumption of marriage which is a common law doctrine. The doctrine states that, long cohabitation of a man and woman with a general reputation as husband and wife raises a rebuttable presumption that the parties have contracted marriage. Consequently, the doctrine of presumption of marriage has been used over time to infer the existence of a marriage where a couple has not legally formalized their union. In Kenyan law, presumption of marriage is provided in Section 119 of the Evidence Act, Cap 80. It provides that, the court may presume the existence of any fact which it thinks likely to have happened based on inter alia; human conduct and natural events. This has been restated in several cases such as Hortensia Wanjiku Yawe v. The Public Trustee Nairobi (1976) eKLR and in Mary Njoki v John Kinyanjui Mutheru & 3 Others [1985] eKLR. It is also important to note that the Married Women’s Property Act,1882 (repealed) which was inherited as a statute of general application pursuant to the Judicature Act, applied to all women, whether in marriages recognized or unrecognized in law. This is in contrast with the application of the Matrimonial Property Act,2013.

Many clients in succession disputes and matrimonial property cases rely on presumption of marriage arguments. Skilled matrimonial property lawyers in Kenya can assist in proving or rebutting such claims, depending on the circumstances.

The Legal Test for Presumption of Marriage in Kenya

Kenyan courts have recently stated that long cohabitation and repute does not always raise a presumption of marriage. The Supreme Court of Kenya in MNK v POM (2023) eKLR laid out strict parameters that must be met by parties who want the court to find that a presumption of marriage exists. They are as follows: –

1. Long cohabitation;
2. Capacity to marry;
3. Intention to marry;
4. Consent by both parties;
5. Repute;
6. The onus of proving the presumption is on the party who alleges it;
7.  The evidence to rebut the presumption has to be strong, distinct, satisfactory and conclusive; and
8. The standard of proof is on a balance of probabilities.

The Supreme Court went on to say that, due to the changes in matrimonial laws in Kenya, the doctrine of presumption of marriage is on its deathbed and should thus be used sparingly. Furthermore, that it is the exception rather than the rule. In summary, marriage by cohabitation is not legally recognized in Kenya. However, where the parameters outlined above are met, courts will find that there is a marriage.  

For individuals in ‘come we stay’ unions, seeking early advice from a family lawyer in Kenya helps to clarify their rights before disputes over property or succession reach the courts.

The Interplay Among Cohabitation, Succession & Property Rights in a Marriage

As mentioned earlier, matters such as inheritance and property ownership are involved when the disputes arising from “come we stay’ unions are brought before courts. In matters pertaining to succession, cohabitants do not have equivalent rights to legally married couples unless a cohabitee had a will or a cohabiting couple meets the strict parameters which were outlined in the case of MNK v POM (2023) eKLR. The High Court of Kenya in re Estate of MMJ (Deceased) (2023) eKLR stated that, the application of a presumption, whether of law or fact, cannot be done by ignoring clear and express provisions of the law. For instance, under Section 3 of the Law of Succession Act (Cap 160), a spouse is defined as a husband or a wife or wives recognised under the Marriage Act, 2014. Additionally, cohabitees are not named as dependants under Section 29 of the Law of Succession Act (Cap 160). Under the same Act, cohabitees are not envisioned in the category of persons a Court will consider when granting letters of Administration in Section 66.

In matters pertaining division of property upon breakdown of cohabitation unions, the parties do not have equivalent rights to legally married couples thus the Matrimonial Property Act, 2013 is not applicable to them. In order for properties to be declared by a court to be matrimonial properties, it must be shown that they were acquired during the subsistence of a marriage. In order for a presumption of marriage to arise, the cohabitation should not be mere friendship, neither should the woman be a mere concubine but that the long cohabitation should have crystallized into a marriage as stated by the Court of Appeal in Phylis Njoki Karanja& 2 others v Rosemary Mueni Karanja and Another (2009) eKLR. To put it simply, properties cannot be distributed between a couple as per the provisions of the Matrimonial Property Act,2013 if there is no evidence of the existence of any form of a valid marriage as held in BKR v PWG (2024) eKLR.

Owing to the fact that cohabitants have no automatic rights to division of matrimonial property, courts have resorted to applying the doctrine of trusts; particularly constructive and resulting trusts, to come up with decisions. In JKG v MGM (2024) eKLR, there was a dispute between cohabitees regarding division of property. The High Court of Kenya held that there was a resulting trust in favour of the appellant in respect of the suit property because the respondent failed to provide sufficient evidence to prove ownership of the suit property. Resulting trusts is an equitable remedy that works in scenarios where someone registers his or her property in another person’s name without intending to pass beneficial interest to that person. The resulting trust will therefore arise in the favour of the one whose money was used to purchase the property.

On the other hand, constructive trusts is an equitable remedy that is used to prevent unjust enrichment or rather prevent people from unjustly retaining property which they should not rightfully retain. It arises where a party has conducted himself or herself in an unjust manner thus preventing another party from having a beneficial interest in the property in question as stated in Shah and 7 others v Mombasa Bricks and Tiles Limited and 5 others (2023) eKLR.For a constructive trust to be applied, the court has to establish either of two elements. Firstly, that the parties involved had an express agreement regarding sharing of the property and that the claimant acted to his or her detriment with the belief that he or she was acquiring a beneficial interest. Secondly, that both parties have a common intention for existence of a beneficial interest for both of them. This is demonstrated via the conduct of both parties.

Lastly, in matters concerning child custody in marriage by cohabitation, the best interest of the child is of uttermost importance. Therefore, the marital status of the parties does not affect the decision of the court in determining what constitutes the best interests of the child.

Conclusion

In summation, it is evident that parties in ‘Come we stay’ marriages largely remain unprotected by the law in Kenya. As earlier on discussed, cohabitees do not enjoy the same automatic rights accorded to legally married couples unless there are exceptional factors including: – Long cohabitation; Capacity to marry; Intention to marry; Consent by both parties and; Repute. Owing to the fact that the doctrine of Presumption of Marriage is no longer liberally applied by Courts, cohabitees have often found themselves caught between a rock and a hard place upon death of a partner or breakdown of the union.

For couples in such unions, seeking legal guidance from family lawyers in Kenya is critical when dealing with presumption of marriage, division of matrimonial property, or succession disputes. We provide advisory and representation to ensure your rights and interests are protected.