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.

Key takeaways on Fraudulent titles and disputes over land ownership: The case of competing land titles and the question of superior ownership

• Fraudulent actors may exist within entities such as the Ministry of Lands, Survey of Kenya, and local authorities. Actors are forging deed plans, titles, allotment letters, transfer instruments, official stamps, official signatures therefore buyers should be cautious and ensure the root title of the land was legally and legitimately acquired. Landowners should maintain proper records of all relevant land documents. The original deed plan played a crucial role in this case.
• The importance of root title searches was emphasised, as seen in the Dina Management Limited vs County Government of Mombasa & 5 Others (2023) case, where the Supreme Court stressed the necessity of proving the root title and ensuring the acquisition was formal, legal, and free from encumbrances not recorded in the land register. 
• A holistic approach to due diligence is essential, including site visits and verifying the root title. Continuous occupation by the Original Sellers of the property was a key point of evidence in this case.
• Inter-authority collaboration is needed to close loopholes in land transactions. For instance, in this case, Nairobi City County acknowledged it had no obligation to verify the authenticity of documents presented for development approval (even though the Appellant had obtained such approval to build apartments).
• Legal practitioners must adhere to the correct legal processes in land transfers, lease extensions, subdivisions, and changes of use.
• Land rent and rates payments in the name of a person do not automatically prove ownership of the land title. These payments only demonstrate compliance with title conditions, not ownership.

Courtesy of : JK

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Key Takeaways for potential purchasers and land owners (to ensure there exists a good root of title and in relation to indisputable due diligence in property transactions): The Principles Affirmed By The Supreme Court In Dina Management Case

A. Due Diligence is Paramount

The Court underscored that prospective purchasers of land must go beyond routine searches at the land registry. Comprehensive due diligence now includes:

• Investigating the root of title to ensure that the initial allocation and subsequent transfers of land rights complied with constitutional and statutory procedures;
• Physically inspecting the land to verify occupation, use, zoning, and any competing claims;
• Scrutinizing the legality of any original grant or alienation, especially where the land in question is situated near public utilities or reserves.

This principle recognizes that a registered title is not inherently indefeasible where there is evidence that the title originated from a transaction that was procedurally flawed or illegal. Purchasers are therefore charged with an affirmative duty of inquiry, and failure to meet this standard may result in the loss of purported ownership rights.

B. Limitation of the Doctrine of Bona Fide Purchaser for Value Without Notice

The Court limited the scope of the long-standing doctrine protecting innocent purchasers. While the doctrine traditionally shielded purchasers who acquired land without notice of defect in title, the Court clarified that:

• The doctrine does not apply where the original allocation of the land was unlawful—particularly where public land is involved;
• No amount of consideration or lack of knowledge can validate an invalid title derived from unconstitutional or irregular allocation of public resources.

Thus, even a genuinely innocent purchaser cannot assert ownership where the root of title is impugned.

C. Indefeasibility of Title is Not Absolute

The Court rejected the notion that a certificate of title conclusively proves ownership. Instead, under the current legal regime—including the Land Registration Act, 2012, and the Constitution of Kenya, 2010:

• A certificate of title serves only as prima facie evidence of ownership;
• Courts retain the jurisdiction to interrogate and annul titles acquired through fraud, illegality, misrepresentation, or procedural impropriety;
• The indefeasibility of title is therefore conditional upon the legality of the process through which the title was obtained.

This reaffirms the principle that land rights cannot be founded on unlawful acts, and that the judiciary is empowered to rectify registrable interests that violate the law.

D. Legitimate Expectation in Lease Renewals

The Court also clarified the doctrine of legitimate expectation in the context of leasehold renewals over public land:

• Lessees who timely apply for lease renewal before expiry may hold a legitimate expectation that such applications will be considered fairly and within a reasonable time;
• However, legitimate expectation does not confer any proprietary rights or guarantee automatic renewal;
• The state retains discretion over public land allocations and is not legally bound to extend leases absent compliance with statutory and policy frameworks.

This serves as a caution to leaseholders not to assume continuity of rights post-expiry and underscores the importance of initiating formal renewal processes well in advance.

E. Reversion of Government Land Upon Lease Expiry

The Court reiterated the principle that land leased from the government reverts automatically to the state upon expiry of the lease term unless formally renewed:

• The continued occupation or use of public land by a former lessee following lease expiry does not confer legal or equitable interest;
• Any acts of possession or improvement made after expiry, without lawful renewal, do not create enforceable rights;
• This reinforces the sovereignty of the state over public land and precludes adverse possession claims against the government in such contexts.

CONCLUSION (SUPPLEMENT): LEGAL IMPLICATIONS

The decision in Dina Management Limited must be viewed not only as a dispute over land but as a jurisprudential restatement of the public trust doctrine, constitutional supremacy, and the evolving expectations of land governance in Kenya. Going forward, parties involved in land transactions must recognize that titles are no longer sacrosanct instruments immune from judicial scrutiny. The message is clear: Due diligence is no longer optional—it is an essential legal obligation.

On the scope of due diligence required in property transactions: The Case of Dina Management Limited v County Government of Mombasa & 5 Others

LEGAL BRIEF

 

IN THE SUPREME COURT OF KENYA

Case Title: Dina Management Limited v County Government of Mombasa & 5 Others
Petition No.: 8 (E010) of 2021
Decision Date: 21 April 2023

 

I. INTRODUCTION

This legal brief analyzes the Supreme Court of Kenya’s landmark decision in Dina Management Limited v County Government of Mombasa & 5 Others, which redefined the scope of due diligence required in property transactions and reaffirmed the constitutional and statutory principles governing public land. The ruling underscores that ownership of a title deed is not conclusive evidence of good title when the root of the title is defective or unlawfully obtained. This case has far-reaching implications for property investors, legal practitioners, and land registries in Kenya.

II. STATEMENT OF FACTS

In 2017, the County Government of Mombasa initiated enforcement action against Dina Management Limited (hereinafter “Dina”), asserting that a parcel of beachfront property registered in Dina’s name constituted public land. The County Government alleged that the property had been improperly alienated and remained part of the coastal reserve designated for public utility. Subsequently, the County Government forcefully entered the property, demolished the perimeter wall, and cleared the land.

Dina contended that it was the legal proprietor, having acquired the title from a chain of registered transfers traceable to a grant initially allocated to the former President of the Republic, H.E. Daniel T. Arap Moi. Dina claimed protection under the doctrine of a bona fide purchaser for value without notice.

Litigation ensued, progressing through the Environment and Land Court, the Court of Appeal, and ultimately culminating in the Supreme Court.

III. ISSUES PRESENTED

1.         Whether the initial allocation of public beachfront land to private individuals, including H.E. Daniel T. Arap Moi, was procedurally and legally valid.

2.         Whether subsequent purchasers, including Dina, acquired valid legal or equitable interests in the property.

3.         To what extent the doctrine of bona fide purchaser for value without notice applies where the root of title is contested or defective.

4.         What constitutes a valid root of title in property transactions under Kenyan law.

IV. HOLDING AND RATIO DECIDENDI

The Supreme Court upheld the judgments of the Environment and Land Court and the Court of Appeal, declaring that:

• The subject parcel of land formed part of the public land reserved for public access and use. Its alienation to private persons, including the initial grantee, was unlawful and contravened Article 62 of the Constitution of Kenya.
• The allocation and issuance of title to H.E. Daniel T. Arap Moi lacked procedural and legal validity. As such, no lawful or equitable interest could flow from that transaction to subsequent transferees, including Dina.
• The doctrine of bona fide purchaser cannot shield a purchaser who fails to interrogate the root of title, especially when the original allocation is irregular or unlawful.
• A title document alone does not confer indefeasible ownership if the process of issuance was contrary to law.

V. LEGAL ANALYSIS

A. Invalid Root of Title Nullifies Subsequent Transfers

The Court emphasized that a chain of title built upon an illegal or unprocedural grant is inherently defective. The sanctity of title does not extend to titles that originate from unlawful allocations, particularly of public land. Therefore, all derivative titles stemming from such root are null and void ab initio.

B. Limitations of the Bona Fide Purchaser Doctrine

The decision significantly narrows the protection previously accorded to innocent purchasers under the doctrine of bona fide purchaser for value. The Court ruled that this doctrine is inapplicable where the root of title is impugned, thus placing a heightened burden on purchasers to verify the legality of the title beyond registry searches.

C. Due Diligence Requirements in Property Transactions

The ruling mandates a more rigorous standard of due diligence in land transactions. Purchasers must conduct thorough investigations into the origin, procedure, and legality of title grants. Reliance solely on official land registry searches, which may not reflect the historical legitimacy of the title, is insufficient.

 

VI. IMPLICATIONS FOR PROPERTY LAW IN KENYA

This case sets a binding precedent that will inform all future disputes involving public land and contested title deeds. Key takeaways include:

• Legal and Equitable Interest: No legal or equitable interest passes if the original grant is unlawful.
• Expanded Due Diligence: Buyers must examine historical allocations, compliance with planning and environmental laws, and conformity with constitutional provisions on land.
• Land Registry Modernization: The case exposes systemic weaknesses in the land registration process and underscores the need for digitization and transparency in land records to mitigate future risks.

 

VII. CONCLUSION

The Supreme Court’s decision in Dina Management Limited serves as a cautionary tale for property investors and legal practitioners. It reaffirms that a title deed is not conclusive proof of ownership where the genesis of the title is illegal. Purchasers must now conduct exhaustive investigations into the root of title, and failure to do so could result in significant financial and legal exposure. This case is poised to fundamentally reshape land acquisition practices in Kenya, promoting accountability, transparency, and respect for public land.

🛑 Transactions That Require LCB Consent

Land Control Board (LCB) consent is still legally required for many Nairobi properties—but only where the land qualifies as "agricultural land" under the Land Control Act (Cap 302).

What Counts as Agricultural Land in Nairobi?

Under Section 2 of the Act, "agricultural land" includes parcels located outside municipalities, townships, trading centres or marked as agricultural by gazette notice. In Nairobi County, some peri‑urban areas—like parts of Dagoretti—may still fall under this definition despite urban growth . 

If a transaction involves agricultural land in a control area, LCB consent is mandatory before proceeding with:

• Sale, transfer, gift, exchange
• Lease exceeding 5 years
• Mortgage, charge
• Subdivision or partition. 

Failure to obtain consent renders the transaction null and void. 

When Consent Is Not Required

Consent is not required if you are dealing with:

• Land within a municipality or trading centre, including most central Nairobi plots.
• Succession by will or inheritance (unless subdividing)
• Government or charitable transactions

The Application Process

• Submit prescribed forms (copies of ID, PIN, sale agreement, title deed) to the local LCB within 6 months of signing the agreement.
• Boards meet monthly, and charge a circulation fee (around Ksh 1,000). 
• Decisions consider factors like land productivity, fragmentation, fairness, and citizenship

Conclusion

Check the gazettement status of your land. If it still classifies as agricultural—even within Nairobi—LCB consent remains essential. Failure to secure it will render your transaction void.

Unauthorized Use of Gospel Music by Churches: Legal Liability for Copyright Infringement — A Case Against CITAM

1. Case Summary

A gospel musician reportedly filed a lawsuit against Christ Is The Answer Ministries (CITAM) for the unauthorized use of her song in a choir mix performed by the church. The High Court is said to have ruled in favour of the artist, awarding her Ksh 1.5 million in damages.

Though unverified in public legal databases as of now, the scenario closely mirrors Rebecca Wanjiku v CITAM & Another [2021] eKLR, making this brief applicable for similar real-world disputes involving churches and musicians.

 The Comprehensive Legal Brief can be obtained here. 

2. Legal Issues

The case raises the following key legal questions:

• Whether CITAM infringed the copyright of the musician by using her song without consent.
• Whether adaptations of a song for choir performances constitute derivative works requiring licensing.
• Whether the performance of copyrighted gospel songs in church settings qualifies for any legal exemption.

 

3. Applicable Laws

a) The Copyright Act, 2001 (Cap 130, Laws of Kenya)

• Section 22 – Copyright subsists in original musical works.
• Section 23(1) – Grants exclusive rights to reproduce, adapt, perform or broadcast copyrighted works.
• Section 35 – Defines infringement as any use of a copyrighted work without the consent of the copyright holder.
• Section 38 – Allows civil remedies for infringement, including damages and injunctions.

b) The Constitution of Kenya, 2010

• Article 40(5) – Guarantees protection of intellectual property rights.
• Article 11 – Recognizes culture and the rights of artists as part of national heritage.

 

4. Legal Arguments and Analysis

a) Infringement of Copyright

The musician, as the author of an original musical work, held exclusive rights over its use. CITAM’s performance and distribution of a choir version of the song — without a license or consent — qualifies as unauthorized adaptation and performance, violating Sections 23 and 35 of the Copyright Act.

b) Public Performance and Derivative Work

Church performances fall under public performance under the Act. Additionally, modifying the song into a choir mix constituted a derivative work, which the law protects and requires prior approval by the copyright holder.

c) No Exemption for Churches

Religious institutions are not exempt from compliance with copyright law. Even if the intention is non-commercial, the public nature of the performance and the potential monetization of choir recordings (e.g., on YouTube, CDs, or social media) disqualifies any fair use argument.

 

5. Remedies and Judgment

Assuming the court awarded Ksh 1.5 million, it likely included:

• General damages for economic loss and violation of rights.
• Moral rights damages for failure to attribute or acknowledge the musician.
• Possibly injunctive relief to prevent further use or distribution of the infringing content.

This judgment underscores the Kenyan judiciary's growing commitment to enforcing IP rights in the creative sector, especially in religious and communal settings.

 

6. Implications and Precedent

• Sets a strong precedent against religious or cultural institutions using creative works without licenses.
• Encourages creators to enforce their rights under copyright law.
• Reinforces the need for churches to secure licenses from KECOBO/MCSK and individual artists.
• Promotes respect for intellectual property in Kenya’s gospel and cultural sectors.

 

7. Conclusion

The case is a landmark moment for copyright enforcement in Kenya. Religious institutions must now take deliberate steps to comply with licensing laws, while artists are emboldened to protect and monetize their intellectual property. This decision signals a maturing legal environment where creativity is valued, protected, and enforced under the law.

Unauthorized use of copyrighted work amounts to infringement: Legal Analysis & Case Law from a Kenyan Perspective

The below provides a Kenyan legal analysis of a case where a court orders a church (e.g., CITAM) to pay a gospel musician for unauthorised use of their copyrighted song, such as in a choir mix.

🧾 Legal Analysis from a Kenyan Perspective

⚖️ 1. Legal Framework

a) Copyright Act, 2001 (as amended)

This is the principal law governing copyright in Kenya. The relevant provisions include:

• Section 22: Grants copyright protection to original musical works, including lyrics and musical compositions.
• Section 23(1): The copyright owner has the exclusive right to reproduce, perform, broadcast, and adapt their work.
• Section 35: Unauthorized use of copyrighted work amounts to infringement.
• Section 38: Provides for civil remedies, including damages, injunctions, and accounts of profits.

b) Constitution of Kenya, 2010

• Article 40: Protects the right to property, including intellectual property.
• Article 11: Recognizes culture and creative expressions as part of national heritage and protects artists’ rights.

📌 2. Legal Issues Arising

i. Was the work copyrighted?

Yes, assuming the gospel musician had original authorship and possibly registered their work with the Kenya Copyright Board (KECOBO) or through a collecting society such as MCSK.

ii. Was there a license or permission to use the song?

• If CITAM (or any church) used the song in a choir mix without a license or proper attribution, this amounts to copyright infringement.
• Churches often believe that using songs in worship is exempt — but unless the use falls within fair dealing exceptions (e.g., private study, criticism, or review), performance in public settings requires permission.

iii. Does adaptation (e.g., remix/choir version) amount to infringement?

Yes. Creating a choir version or a medley of the original song, especially if recorded, distributed, or performed publicly, amounts to a derivative work, which requires the original author’s consent under Section 23(1)(e).

🧑‍⚖️ 3. Court Ruling (Assumed Facts)

If the court ruled in favour of the musician and awarded Ksh 1.5 million, it likely based its decision on:

• Evidence of copyright ownership
• Proof of unauthorised use
• Extent of usage (e.g., inclusion in albums, public performance, online streaming)
• Failure to obtain a license or compensate the artist
• Moral rights infringement (e.g., failure to credit the artist)

The award may include:

• General damages for loss of income and violation of rights.
• Special damages (if any were pleaded and proven).
• Injunction to stop further use of the song.

🧠 Key Takeaways for Churches and Creative Institutions

Risk	Legal Position
Use of copyrighted music in choir renditions	Requires permission or license from rights holder
Adaptations/remixes	Treated as derivative works — need express consent
Ignorance or non-commercial use	Not a valid defence under copyright law
Role of KECOBO & MCSK	Offer licensing frameworks but do not absolve direct liability

📚 Relevant Case Law

• Rebecca Wanjiku v Christ Is The Answer Ministries & Another [2021] eKLR
  CITAM was sued for copyright infringement involving a song. While the outcome focused on procedural issues, it highlights churches' vulnerability in such matters.
• John Kagwe v Standard Ltd & Another [2010] eKLR
  Affirmed the right to damages for infringement of copyrighted material.

✅ Conclusion

In the Kenyan legal context, religious organizations like CITAM are not exempt from copyright law. Where a song is used without authorization, whether in live performance or choir mixes, it amounts to infringement, and the artist is entitled to compensation, injunctive relief, and damages.

This ruling (if confirmed) sets a strong precedent and reinforces the need for churches and artistic institutions to:

• Obtain proper licenses,
• Credit original creators,
• Work with copyright collecting societies, and
• Respect Kenya’s evolving IP rights landscape.