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ELRCPartially AllowedNot stated in the judgment as supplied· [2025] KEELRC 2980 (KLR)

Muga v CCI Kenya Limited (Cause E151 of 2023) [2025] KEELRC 2980 (KLR)

Employment and Labour Relations Court
30 October 2025
3,790 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~15 min to read original · ~4 min brief

The bottom line

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Kenyan employers cannot terminate probationary employees without valid reasons and fair procedure; this employee won one month's salary compensation.

What this practically means

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Executive summary

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The Claimant, engaged as a Human Capital Shared Services Manager from 10th January 2022 on a three-month probationary contract that was extended for a further three months to July 2022, challenged the Respondent's decision not to confirm her employment. She received a calendar invite on the evening of 7th July 2022 for a performance review meeting the following day, at which - lasting about two minutes on her account - she was handed a termination letter with immediate effect. The court framed two issues: whether the contract was improperly terminated, and whether she was entitled to the reliefs sought. Following the three-judge decision in Monica Munira Kibuchi & 6 others v Mount Kenya University, which declared section 42(1) of the Employment Act unconstitutional insofar as it excluded probationary employees from section 41 protections - a position recently endorsed by the Court of Appeal in Red Lands Roses Ltd v Mugo - the court held that probationary employees are entitled to valid reasons and fair procedure before termination. The Respondent was held to have possibly had legitimate grounds for non-confirmation, but to have denied the Claimant adequate notice (less than twelve hours) and an opportunity to be heard, and it failed to tender the calendar invite or minutes of the meeting. The termination was declared irregular. Compensation was limited to one month's salary (Ksh. 210,000.00) rather than the twelve months sought, given the probationary status of the contract, with interest at court rates from the date of judgment and costs of the suit to the Claimant. All other reliefs were deemed declined.

Key legal issues

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01

Whether section 41 procedural protections apply to probationary contracts

Holding

Yes - section 42(1) cannot be read to exclude probationary employees from the protections of section 41, following Monica Munira Kibuchi and Red Lands Roses

Reasoning

The court reasoned that the Employment Act predates the 2010 Constitution and any provision inconsistent with it must fall or be read with modifications. Following the three-judge decision in Monica Munira Kibuchi and the Court of Appeal in Red Lands Roses, it held that probationary employees enjoy section 41 protections and fair administrative action under section 4 of the Fair Administrative Action Act and article 47.

p. 5
02

Whether the termination of the Claimant's probationary contract was fair

Holding

The Respondent may have had legitimate grounds but failed to observe due process; termination was irregular

Reasoning

The Claimant received a calendar invite on the evening of 7th July 2022 for a meeting the next day, leaving her less than twelve hours to prepare. The Respondent did not tender the calendar invite or minutes of the meeting, and there was no cogent evidence she was given an opportunity to respond to the perceived poor performance before being handed the termination letter.

p. 6
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What remedies flow from the unfair termination of a probationary contract

Holding

Compensation limited to one month's salary (Ksh. 210,000.00) given the probationary status, plus interest and costs

Reasoning

Relying on Ogembo's treatise, the court held that remedies for unfair termination of a probationary contract are meagre because probation contemplates limited service. The probationary status of the contract militated against the twelve months' compensation sought, so only one month's salary was awarded, subject to statutory deductions.

p. 7

Legal principles established

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  • Employees on probationary contracts are entitled to protection from arbitrary deprivation of employment; an employer must demonstrate valid grounds and follow fair procedure before terminating a probationary contract
  • Section 42(1) of the Employment Act, insofar as it excludes probationary employees from section 41 protections, is inconsistent with articles 41 and 47 of the Constitution (following Monica Munira Kibuchi)
  • Less than twelve hours' notice of a performance review meeting at which termination is decided is insufficient notice
  • Standard of proof for the employer is a balance of probabilities

Court orders

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  1. 1.Declaration that the Respondent irregularly terminated the Claimant's probationary contract of service
  2. 2.Compensation for unfair termination in the sum of Ksh. 210,000.00, equivalent to one month's salary
  3. 3.The award is subject to applicable statutory deductions
  4. 4.Interest on the award at court rates from the date of the decision
  5. 5.Costs of the suit to the Claimant
  6. 6.Any other relief sought but not expressly granted deemed declined
Jurisdiction invoked
Original employment and labour relations jurisdiction of the ELRC under the Employment Act and article 41 and 47 of the Constitution (as engaged in the judgment)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Muga v CCI Kenya Limited (Cause E151 of 2023) [2025] KEELRC 2980 (KLR)", Case Analysis (2025). Not stated in the judgment as supplied. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2980/eng@2025-10-30

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.