Pamba v Kenya Hospital Association for & on behalf of the Nairobi Hospital & another (Cause E614 of 2020) [2025] KEELRC 1776 (KLR)
The bottom line
#Kenya's Employment Court ruled that probation can't be extended without the employee's agreement, and awarded a former CEO over Kshs 200 million for unfair termination.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Claimant's contract of employment was automatically confirmed
- 2.Whether the Claimant was entitled to fair procedure during termination in terms of section 41
- 3.Whether the Claimant is entitled to compensation for his termination
- 4.Whether the Claimant is entitled to damages for defamation
- 5.What reliefs the Claimant is entitled to, if any
- 6.Who is to bear costs
Key legal issues
#Whether the Claimant's contract of employment was automatically confirmed on expiry of his probation
Yes. The purported extension of probation was unilateral, contrary to section 42(2) of the Employment Act and the HR Manual, and void ab initio; the Claimant was automatically confirmed on 8th September 2020.
Section 42(2) requires an employee's agreement to extend probation and is couched in mandatory terms. The Claimant received no communication notifying him of the purported extension, and the HR Manual permitted extension only following midpoint discussions. The 2nd Respondent ignored the HR Director's written guidance that the process was unprocedural. Accordingly the probation lapsed on 8th September 2020 and the Claimant was automatically confirmed as CEO.
Whether the Claimant was entitled to fair procedure under section 41 of the Employment Act
Yes. Having been automatically confirmed, the Claimant was entitled to notice of the grounds for termination and an opportunity to be heard; none was afforded, making the termination procedurally unfair.
Since the probation had lapsed and the Claimant was confirmed, sections 41, 43 and 45 applied. The Respondents' reliance on section 42(4) to deny a hearing failed. The Claimant was neither issued a notice to show cause nor heard before termination, and the Board resolution terminating him was irregular, with no agenda item for his termination as required by the Board Charter.
Whether the Claimant is entitled to compensation and damages
Yes. The Respondents, having unlawfully terminated the Claimant, are liable for salaries for the balance of the contract, leave dues, 12 months' compensation, allowances, medical cover, and damages for defamation and reputational harm.
The court found the Respondents 'almost decimated' the Claimant's ability to find employment and were liable for the loss, damage to reputation and attendant distress caused by the unlawful termination. Evidence showed the Claimant performed well and would have served the three-year term. Awards were made for the balance of the contract, statutory maximum compensation of 12 months' salary, allowances, and Kshs. 10 million defamation damages.
Legal principles established
#- A probationary period may only be extended with the agreement of the employee, and an extension made without the employee's agreement is void and results in automatic confirmation upon expiry of the probationary period
- An employee whose probationary period has expired without a lawful extension is automatically confirmed and is entitled to the full benefit of section 41 of the Employment Act in any ensuing termination
Court orders
#- 1.A declaration that the Claimant's termination of his contract of employment was unfair, unjustified, illegal, null and void
- 2.A declaration that the 2nd Respondent acted in bad faith and with malice in the evaluation of the Claimant and in his role in the termination of the Claimant's service
- 3.A declaration that the 2nd Respondent grossly violated express provisions of the 1st Respondent's Board Charter and the Human Resource Manual on Probation
- 4.Payment of salaries for the balance of the contract – Kshs. 117,000,000/-
- 5.Leave dues – Kshs. 11,700,000/-
- 6.12 months' salary compensation – Kshs. 36,000,000/-
- 7.Kshs. 150,000/- for telephone allowances
- 8.Car allowance – Kshs. 13,500,000/-
- 9.Home security allowance – Kshs. 3,000,000/-
- 10.Medical cover – Kshs. 15,000,000/-
- 11.Damages for defamation – Kshs. 10,000,000/-
- 12.Costs of this suit (to the Claimant)
- 13.Interest at court rates on the pecuniary awards from date of judgment till payment in full
- 14.Certificate of Service
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (first-instance claim for unfair termination); Labour Relations Act provisions referred to through sections 41, 42, 43, 45 and 49 of the Employment Act
Relief refused
#Reinstatement to employment as Chief Executive Officer of the 1st Respondent without loss of benefits
The Claimant withdrew this relief at trial, having obtained other employment in December 2021
An injunction restraining the Board of Directors from interfering with or sabotaging the Claimant's terms of employment
Not granted in the final orders; the court instead granted declarations and monetary awards
Full contractual value of Kshs. 350 million sought in submissions
The court awarded salaries for the balance of the contract at Kshs. 117 million rather than the full contract value claimed in submissions
Costs
Costs of this suit awarded to the Claimant (order (l) of the disposition: 'Costs of this suit.')
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The law is clear that section 42(2) as noted in the above case is couched in mandatory terms. No ifs, buts or. The Claimant did not receive any communication notifying him of the purported extension of his probationary contract.
The Court therefore finds that the Claimant was automatically confirmed to his position as CEO when his probationary period expired on 8th September 2020. The purported extension of probation by the 2nd Respondent was an afterthought, a non-starter and void ab initio.
The Respondents almost decimated the Claimant's ability to find employment and therefore are liable for the damages caused when the Claimant was unlawfully terminated.
d. Payment of salaries for the balance of the contract – Kshs. 117,000,000/-
f. 12 months' salary compensation – Kshs. 36,000,000/-
k. Damages for defamation – Kshs. 10,000,000/-
n. Certificate of Service.
Issues in the judgment
#The judgment states the end-of-probation evaluation was conducted on 10th September 2020 (after probation expired 8th September 2020) in the Claimant's pleading, but the Respondents' defence dates the final evaluation to 9th and 10th October 2020, an internal inconsistency in the pleaded dates
The costs order in the disposition simply states 'Costs of this suit.' without expressly naming the party in whose favour costs are awarded, though the Claimant sought costs and succeeded
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Pamba v Kenya Hospital Association for & on behalf of the Nairobi Hospital & another (Cause E614 of 2020) [2025] KEELRC 1776 (KLR)", Case Analysis (2025). Employment and Labour Relations Court Claim (Amended Statement of Claim dated 12th November 2020) – Kisumu. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1776/eng@2025-06-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.