On Whether the termination of the Claimant’s employment was substantively and procedurally fair: The Case of Pamba v Kenya Hospital Association (for and on behalf of The Nairobi Hospital) & Another [2025] KEELRC 1776 (KLR)

LEGAL BRIEF: 

I. INTRODUCTION

This brief analyzes the judgment delivered in Pamba v Kenya Hospital Association & Another, where the Employment and Labour Relations Court (ELRC) addressed the procedural requirements surrounding the extension of probationary contracts under Section 42 of the Employment Act, 2007. The Court’s decision reinforces employee protections by clarifying the lawful process for extending probation periods and affirming the right to a fair hearing before termination. Notably, the Court declared the termination of the Claimant unlawful and awarded maximum compensation for lack of procedural fairness.

II. STATEMENT OF FACTS

The Claimant, Mr. Pamba, was employed by the Kenya Hospital Association, trading as The Nairobi Hospital, under a probationary contract. At the conclusion of the agreed probationary term, the Respondents terminated the Claimant’s employment, alleging that he remained on probation and was therefore not entitled to the procedural safeguards provided under Section 41 of the Employment Act.

The Respondents justified their actions by invoking Section 42(1) of the Act, which (prior to being declared unconstitutional) excluded probationary employees from the right to a hearing prior to termination. They argued that the probationary period had been validly extended, thereby exempting the Claimant from the full procedural requirements of termination.

The Claimant, however, disputed the legitimacy of the purported extension. He contended that the extension was unilaterally imposed without his knowledge or consent, contrary to Section 42(2) of the Employment Act, which mandates that any extension of a probationary period must be mutually agreed upon in writing. Furthermore, the extension had not complied with the Respondents’ internal HR policies. 

III. ISSUES FOR DETERMINATION

1. Whether the probationary period had been lawfully extended under Section 42(2) of the Employment Act, 2007.
2. Whether the Claimant was entitled to procedural safeguards under Section 41 at the time of termination.
3. Whether the termination of the Claimant’s employment was substantively and procedurally fair.
4. Whether the Claimant was entitled to remedies for unfair termination.

IV. COURT'S HOLDING AND LEGAL ANALYSIS

A. Invalid Extension of Probation

The Court found that the Respondents failed to comply with the statutory requirement under Section 42(2) of the Employment Act, which provides that a probationary period may only be extended with mutual consent and in writing. The Court further noted that the Respondents failed to adhere to their internal HR policy governing probation management and confirmation procedures.

Accordingly, the Court held that the Claimant’s probation period had expired by operation of law, and in the absence of a valid extension, the Claimant was deemed to have been confirmed in his position upon the lapse of the initial probation period.

B. Right to Procedural Fairness

Having been deemed a confirmed employee, the Claimant was entitled to the full protections of Section 41 of the Employment Act. The Court emphasized that any termination must comply with the principles of procedural fairness, including:

• Notification of the reasons for intended termination;
• An opportunity to respond to the allegations in the presence of a fellow employee or union representative.

The Respondents’ reliance on the now-invalidated Section 42(1) to bypass the hearing requirement was misplaced, especially since the probationary status had lapsed.

C. Unlawful and Unfair Termination

The Court found that the termination was procedurally and substantively unfair. It noted that the Respondents had failed to provide any valid justification for the termination and had also failed to observe the mandatory hearing procedure. The Court declared the termination unlawful and unfair under Sections 41, 43, and 45 of the Employment Act. 

V. REMEDIES AWARDED

In light of the severity of the procedural violations and the Respondents’ failure to act in good faith, the Court awarded the Claimant maximum compensation for unfair termination. The Court noted that the unlawful termination had not only deprived the Claimant of his livelihood but also violated his right to fair labour practices under Article 41 of the Constitution.

VI. SIGNIFICANCE OF THE DECISION

This judgment offers crucial clarification on the following legal principles:

• Extension of probationary contracts must be done in strict compliance with Section 42(2) of the Employment Act and the employer’s internal HR policies. Unilateral extensions are void and unenforceable.
• A probationary employee who continues working beyond the agreed probation period without lawful extension is deemed automatically confirmed.
• The procedural protections under Section 41 apply to all confirmed employees, and failure to observe them renders a termination unlawful.
• Section 42(1) of the Employment Act, which previously allowed termination without a hearing during probation, has been declared unconstitutional, enhancing procedural protections for all employees. 

VII. CONCLUSION

The Pamba decision serves as a cautionary precedent for employers, reaffirming the need to adhere to both statutory and internal procedures when managing probation and termination. The Court's strict interpretation of Section 42(2) ensures that probationary employees are not arbitrarily excluded from protections afforded to confirmed employees. Employers are now on notice that failure to obtain mutual written agreement for probation extensions, or to provide a fair hearing upon termination, exposes them to significant legal and financial liability.