On termination during the probationary period - The Case of Mwangi v Kevian Kenya Limited [2025] KEELRC 2032

Brief Facts:

In the case, the Claimant was terminated for poor performance and insubordination. The Claimant, Mr. Mwangi, was employed by Kevian Kenya Limited under a probationary contract that allowed either party to terminate the employment by giving two weeks’ notice or payment in lieu. During his probation, the Claimant was terminated for poor performance and insubordination without being given a hearing or an opportunity to respond to the allegations. The Respondent terminated the Claimant’s employment without adhering to procedural safeguards under Section 41 of the Employment Act, arguing that the Contractual probationary terms excluded such requirements. The Respondent argued that Section 41 of the Employment Act, which provides for procedural fairness in termination, did not apply due to the probationary nature of the contract and the agreed termination clause.

 

Issues for determination:

1. Does Section 41 of the Employment Act apply to probationary employees?
2. Was the termination of the Claimant procedurally fair?

 

Court’s Holding:

The court held that the Respondent’s reliance on the probationary clause to avoid procedural fairness was misplaced. It affirmed that while probationary contracts allow for easier termination, they do not exempt employers from complying with the mandatory provisions of Section 41. The court retaliated that even employees on probation are entitled to procedural fairness before termination.  

The Court held that:

• Section 41 of the Employment Act applies to all employees, including those on probation.
• Probationary contracts do not exclude employees from the right to procedural fairness.
• The Respondent failed to follow due process by not informing the Claimant of the allegations and not giving him an opportunity to be heard.

 

Court’s Decision:

• The Court found the termination unfair and procedurally flawed.
• The Respondent’s reliance on the probation clause to bypass statutory obligations was misplaced.
• The Claimant was entitled to remedies for unfair termination, although the nature and extent of compensation would reflect his probationary status.

 

Legal Principle:

Probationary employment contracts do not override the mandatory provisions of Section 41 of the Employment Act. Procedural fairness is a right afforded to all employees, including those on probation.

Key Takeaways from the Decision:

1. Probation Does Not Eliminate Procedural Fairness:
• The court made it clear that being on probation does not strip employees of their right to fair hearing.
• Employers must still adhere to Section 41, which requires that:
• The employee be informed of the reasons for termination.
• The employee be given an opportunity to respond before termination.
2. Contractual Terms vs. Statutory Rights:
• The employer’s argument that the probation clause in the contract allowed for termination without procedural safeguards was rejected.
• The court emphasized that contractual terms cannot override statutory protections under the Employment Act.
3. Termination for Cause Still Requires Due Process:
• Since the termination was based on poor performance and insubordination (i.e. misconduct or incapacity), it triggered Section 41 obligations, even during probation.
4. Legal Implication for Employers:
• Employers must conduct a fair process before terminating any employee, including those on probation.
• Failure to follow due process can render a termination unfair, even if the probation clause permits notice or payment in lieu.

️Broader Impact:

This judgment reinforces employee protections and offers a caution to employers not to assume that probation equals “no rules.” It aligns with the growing body of Kenyan jurisprudence that upholds constitutional fairness in employment relationships, even at early stages.

 

Read the full case Here