Legal Analysis of Probationary Contract Extension and Procedural Fairness in Employment Termination – Pamba v Kenya Hospital Association

 Full case: Pamba v Kenya Hospital Association for & on behalf of the Nairobi Hospital & another [2025] KEELRC 1776 (KLR):

I. Introduction

This memorandum provides an analysis of the recent Employment and Labour Relations Court decision in Pamba v Kenya Hospital Association for & on behalf of the Nairobi Hospital & another [2025] KEELRC 1776 (KLR). The decision is significant in clarifying the legal requirements for extension of probationary contracts and the procedural rights of employees under the Employment Act, especially in light of the unconstitutionality of Section 42(1).

II. Issues

1. Whether the probationary period can be unilaterally extended by an employer.
2. Whether an employee whose probationary period has expired is entitled to a fair hearing under Section 41 of the Employment Act.
3. Whether termination of such an employee without adherence to due process is unlawful.
4. What remedies are available for unlawful termination in such circumstances.

III. Relevant Law

• Employment Act, 2007 (Kenya):
• Section 41: Requires that an employee be informed of the reasons for termination and given an opportunity to respond before dismissal.
• Section 42(1): Excluded probationary employees from Section 41 protection; however, this section has been declared unconstitutional (see Nairobi ELRC Petition No. 94 of 2019).
• Section 42(2): Allows extension of probationary contracts only with mutual agreement in writing.
• Constitution of Kenya, 2010:
• Article 47: Right to fair administrative action.
• Article 41: Right to fair labour practices.
• Internal HR Policies: Employer policies are binding and enforceable where they supplement or operationalize statutory obligations.

IV. Case Summary

In the Pamba case:

• The Claimant was employed on a probationary contract.
• After the lapse of the initial probationary period, the Claimant continued working without formal confirmation or an executed extension.
• The Respondents later terminated the Claimant, arguing he was still under probation and not entitled to a hearing.
• The Claimant contested this, asserting that the extension of his probation was invalid because:
• There was no mutual agreement to the extension.
• The extension was not reduced into writing.
• The Respondents failed to follow their own HR policy.
• The Court found:
• The Claimant’s probation had expired.
• The extension was invalid under Section 42(2).
• The Claimant was automatically confirmed and entitled to the protections of Section 41.
• The termination was procedurally unfair and unlawful.
• The Claimant was awarded the maximum compensation for unfair termination.

V. Analysis

1. Probationary Extension Must Be Mutual and In Writing

The case confirms that employers cannot unilaterally extend a probationary period. Section 42(2) requires mutual consent, and failure to document such consent invalidates any purported extension.

2. Employees Are Entitled to Procedural Fairness Regardless of Probation Status

With the invalidation of Section 42(1), all employees, including those on probation, have a constitutional and statutory right to a fair hearing under Section 41. Employers who terminate without adhering to this requirement risk liability for unlawful termination.

3. HR Policy Compliance Is Legally Binding

Internal policies carry the weight of contractual obligations and procedural guidelines. Failure to comply with such policies contributes to findings of procedural unfairness.

4. Remedy: Maximum Compensation

Where termination is both procedurally and substantively unfair, the Court is inclined to grant maximum statutory compensation, particularly where the employer acts in bad faith or with disregard for the law.

VI. Recommendation

To ensure compliance with this ruling and minimize legal exposure:

1. Review and update internal HR policies to align with the Employment Act and constitutional requirements.
2. Ensure any probationary extension is:
• Agreed to mutually, and
• Documented in writing.
3. Disregard Section 42(1) entirely — it is unconstitutional.
4. Before termination, ensure that the procedural steps under Section 41 (notification, explanation, and hearing) are followed for all employees.
5. Train HR personnel and line managers on updated practices regarding confirmation, probation, and termination procedures.

VII. Conclusion

The Pamba decision reinforces the principle that due process in employment matters is not optional, even for probationary employees. Employers must strictly comply with both statutory provisions and internal policies. Failure to do so exposes them to maximum liability for unfair termination.

Please let me know if you would like a checklist or policy template to ensure compliance with this ruling.