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

Legal Review: Insolvency procedures in Kenya

What is insolvency?

An individual is insolvent if he/she is unable to discharge his or her debts as they fall due.

A company is insolvent if it does not have enough assets to cover its debts, that is, the value of its assets is less than the value of its liabilities, or if it is unable to pay its debts as they fall due. Generally, put, therefore, insolvency is the inability to pay debts. Insolvency in Kenya is governed by the provisions of the Insolvency Act of 2015.

There are several procedures that are provided under the law once an individual or a company goes through insolvency. Sometimes the procedures enable the individual or the company to return to solvency. This article explores the procedures available to an individual who has unfortunately found himself or herself in debt.

Insolvency of Natural Persons

The meaning of a natural person is a living human being as distinguished from a company or a corporation created by law. The term also denotes a sole proprietor or an individual as understood in common parlance.

The Insolvency Act avails four different types of insolvency procedures available to the individual depending on their circumstances. These are:

Bankruptcy
Individual Voluntary Arrangement
No-Asset Procedure
Summary Installment Order
Bankruptcy

Bankruptcy is a legal process where the debtor is declared as being unable to pay his debts. The affairs of the debtor (i.e., debtor’s assets and liabilities) are then placed before a bankruptcy trustee in the interests of his creditors generally. The bankruptcy trustee will either be the Official Receiver or any Insolvency Practitioner who is a professional licensed to practice insolvency. Bankruptcy proceedings can be initiated by a creditor or by the debtor himself. The process is commenced by the debtor or creditor filing a petition for bankruptcy. The petition is accompanied by an affidavit, a statement of financial position and an application for the court to appoint a suitable trustee over the debtor’s estate.  In a bankruptcy, the bankrupt loses any rights to his property apart from his personal effects and tools of trade.

The bankruptcy process is meant to protect genuine people who have unfortunately found themselves in debt.  A bankruptcy order bars creditors from harassing the debtor and intermeddling with his properties. A bankruptcy order can be lifted if the debtor pays off his debts. The bankrupt will automatically be discharged from bankruptcy after three years whether the debt is paid or not. Once discharged, the bankrupt is released from his bankrupt debts with some exceptions.

Individual Voluntary Arrangement

The Individual Voluntary Arrangement is one of the three alternatives to bankruptcy, the other two being the No-Asset Procedure and the summary installment order which are discussed briefly in the following paragraphs. It is a less formal procedure, is more flexible and it varies on a case to case basis depending on the nature of the proposal. An individual voluntary agreement cannot affect the rights of a secured creditor or preferential creditor unless they consent to it.

Under ordinary circumstances, the debtor makes a proposal with the assistance of a licensed insolvency practitioner. An application is then made to court for the court to issue an interim order. The court may at this point stay any other legal procedures against the debtor and/or his property. The Insolvency Practitioner must prepare a report to the court on the proposal. If the report is positive, then the court will allow the insolvency practitioner to convene a meeting of creditors. If the report is adverse, then the interim order ceases.

A creditors meeting is thereafter held which considers the proposal and the report of the creditors. The proposal is successful if accepted by 75% of the creditors in value of the debt held at a meeting. The creditors also appoint the Supervisor who implements the proposal and reports to the court.

The IVA is a fairly flexible procedure, without publicity unlike bankruptcy. It also carries less social stigma associated with bankruptcy. It may also be less costly to administer and therefore likely to increase returns to creditors. A successful voluntary agreement binds all creditors regardless of whether they voted for it or not.

No-Asset Procedure

No-Asset Procedure is an arrangement which applies when a debtor has no realizable assets to pay off the debt. The procedure is applicable where the debt is more than Kshs. 100,000/- and less than Kshs. 4,000,000/-. The procedure offers similar protection but which is not identical to bankruptcy. It allows the debtor to sort out his/her financial affairs and get back on his feet without entering formal bankruptcy.

Once a debtor is admitted under this procedure, he/she cannot take up new debt during the period of admission. Additionally, the debtor is obligated to pay alimony, child maintenance and education loans for a dependent child or step child. The No-Asset Procedure is, however, not available to a person who has been previously declared bankrupt or admitted to the same procedure.

A debtor is considered admitted to the No-Asset when the Official Receiver sends out the notices in the prescribed form. The admission is also publicized in the Kenya Gazette. Once admitted to this procedure, the creditors are barred from taking any steps to enforce the debts other than the ones contemplated above.

Summary Installment Orders

A summary installment order is an order from the Official Receiver directing the debtor to pay his debts in full and/or installments to an extent the Official Receiver considers practicable and depending on the peculiar circumstances of each case. A supervisor who is an insolvency practitioner oversees the process. The Official Receiver makes the order upon the application of the debtor or creditor and with the consent of the debtor. Currently the threshold of debt that is prescribed under this procedure is Kshs 500,000/-. Upon approval of the proposal, the debtor is required to pay off his debts within three years or within 5 years if agreed with the supervisor.

The legal principles that relate to succession law in Kenya with reference to the context of estate administration gaps

Key Legal Principles & Comparisons

1. Principle of Lapse of a Grant (Grant Becomes Inoperative)

• Law Applied: Section 76(e) of the Law of Succession Act.
• Explanation: When all administrators of an estate die before completing the distribution, the grant becomes “inoperative”.
• Implication: A new grant must be issued—not by substitution, but by issuing letters of administration de bonis non (Latin: “of the goods not yet administered”).

📌 Comparison: This principle mirrors decisions in other jurisdictions like England & Wales, where courts also issue administration de bonis non to fill in the gap when prior executors die.

 

2. Inapplicability of Substitution (Section 81 LSA)

• Law Applied: Section 81 – applicable only if at least one administrator survives.
• Key Ruling: If all administrators are deceased, Section 81 does not allow any of them to be substituted.

📌 Why it matters: Many applications wrongly invoke substitution in these cases. This judgment clarifies the correct remedy under Kenyan law.

 

3. Power of Court to Appoint Administrator (Section 66 LSA)

• Courts have the power to appoint an administrator suo motu (on their own motion) if the proper procedure is unclear or unprovided.
• In this case, the court appointed Monica Rukwaro using this discretionary power.

📌 Relevance: Ensures continuity of estate administration even where procedural gaps or misapplications exist.

 

4. Rule 49 and Procedural Flexibility

• Rule 49, often a "catch-all" for applications not specifically covered, was used here—though technically incorrect, the court accepted it.
• The court relied on Article 159(2)(d) of the Constitution (substance over form), reinforcing that procedural technicalities shouldn’t defeat justice.

📌 Impact: Encourages courts to prioritize substantive rights over rigid technical compliance, especially in family and succession matters.

 

5. Consent of Beneficiaries

• The Court emphasized the need for written consents from other heirs when appointing a new administrator.
• Monica Rukwaro’s application was supported by signed consents, bolstering her eligibility.

📌 Best Practice: When applying for administration de bonis non, always include affidavits or consents from all known beneficiaries to avoid disputes.

 

💡 Practical Takeaways

Situation	Correct Legal Action	Wrong Action to Avoid
All administrators die	Apply for letters of administration de bonis non under S.76(e)	Do not apply for substitution under S.81
Unsure of procedure	Use Rule 49 + invoke Article 159	Do not rely solely on technical rules
No administrator left	Court may appoint new one under S.66	Do not assume the estate is frozen permanently

 

Legal Significance of the Principles:

This case:

• Clarifies successor appointment rules under Kenyan succession law.
• Demonstrates judicial flexibility and prioritization of equitable administration.
• Provides a practical precedent for estate lawyers, especially in family disputes or protracted estate delays.

Succession Law: The Principle of Lapse of a Grant (Grant Becomes Inoperative)

Legal Review of the Principle of Lapse of a Grant (Grant Becomes Inoperative)

• Law Applied: Section 76(e) of the Law of Succession Act.
• Explanation: When all administrators of an estate die before completing the distribution, the grant becomes “inoperative”.
• Implication: A new grant must be issued—not by substitution, but by issuing letters of administration de bonis non (Latin: “of the goods not yet administered”).

📌 Comparison: This principle mirrors decisions in other jurisdictions like England & Wales, where courts also issue administration de bonis non to fill in the gap when prior executors die.

 

Case Law Review and Applicability

📌 1. In re Estate of Waigwa Wachira (Deceased) [2017] KEHC 7917

• Facts: Original grant to widow and son; widow later died leaving unadministered estate.
• Holding: Son entitled to Letters de Bonis Non under Rule 20, Fifth Schedule, Law of Succession Act, to complete administration.
• Takeaway: Even for intestate estates, beneficiaries may apply for de bonis non grants to finish distribution.

 

📌 2. In re Estate of Goolamhoosain Manjee Keshavjee (Deceased) [2017] KEHC 1395

• Facts: Sole executor under will died before completion.
• Holding: Probate revoked; grant de bonis non with Will issued to another beneficiary.
• Takeaway: De bonis non grants are appropriate when executor (or administrator) dies without completing the estate, even where there's a will.

 

📌 3. In re Estate of Harrison Mbari Waithaka (Deceased) [2018]

• Facts: Both administrator and administratrix died leaving part of estate unadministered.
• Holding: Court granted Letters de Bonis Non; applied Section 76(e) and Fifth Schedule paragraphs 14,16,20.
• Takeaway: Reinforces that the estate doesn’t get frozen; new grant fills the gap left by deceased administrators.

 

📌 4. In re Estate of Ngaigwo M’Shomba (Deceased) [2019] KEHC 2362

• Facts: Application sought substitution of deceased single administrator without de bonis non.
• Holding: Court struck out the application, directing proper route is revocation under Section 76(e) and new de bonis non grant.
• Takeaway: Clarifies that one cannot simply substitute under Section 81; must revoke and seek de bonis non.

 

📌 5. Faith Wanjiku Maganjo v Rebean Muriithi Maganjo [2017]

• Facts: Substitution of administrator occurred without de bonis non grant.
• Holding: Recognized necessity of de bonis non; second administrator lawfully administered remaining estate.
• Takeaway: Validates de bonis non grants where administrators die but require formal issuance.

 

Additional Authorities:

• Langok Tioni (2009) – Grant de bonis non issued to enable completion of intestate estate administration.
• Henry Clement Wariithi [2017] – Confirms practice—even if paperwork titles are inconsistent, courts overlook technicalities when grant serves estate administration.
• Elizabeth Wanjiku Njoka [2016] KEHC 978 – Found original grant “useless and inoperative” after administrator’s death, supporting de bonis non issuance.

 

✅ Summary of Legal Landscape

Situation	Correct Procedure
Administrator/executor dies before completing estate	Revoke original grant under Section 76(e) and apply for Letters de Administration de Bonis Non
Applicants propose substitution under Section 81 or Rule 49	Court redirects to de bonis non route (irrelevant if all admins are deceased)
Estate is intestate or testate	De Bonis Non applies in both scenarios; source of grant (intestacy or Will) doesn’t matter
Beneficiaries agree	Courts require written consents, but lack of formal procedure isn’t fatal—substance over form prevails

 

📚 Why This Matters

• These authorities create a consistent precedent under Kenyan law for handling incomplete estate administration due to death or incapacity of an administrator.
• They affirm that Section 76(e) + Fifth Schedule provide the legal foundation, not Section 81.
• Courts invariably prioritize completion of administration over rigid procedural compliance, especially where beneficiaries give consent.

 

Where all joint administrators die before estate conclusion, the original grant becomes void, and a de bonis non grant must be issued - The Case of In re Estate of Joel Rukwaro Thuku (Deceased) [2018] KEHC 6638 (KLR)

📝 Case Brief

1. Facts

• Joel Rukwaro Thuku passed away on 21 February 2003.
• Letters of administration intestate were granted to Rhoda, Rebecca, and Hosea Rukwaro on 19 September 2011; they were confirmed on the same date.
• Before the estate was fully administered, all three administrators died (Rhoda – 21 Jan 2016; Rebecca – 11 Aug 2014; Hosea – 21 Nov 2017).

2. Procedural History

• On 19 March 2018, Monica Rukwaro (a beneficiary) filed a summons under Rule 49 of the Probate & Administration Rules seeking substitution as sole administrator.
• She supported her application with the grant and death certificates, as well as written consent from other heirs.

3. Issues

1.     Whether Rule 49 or Section 81 of the Law of Succession allows the substitution of all deceased joint administrators.

2.     What happens when all administrators have died before the estate is fully administered?

3.     Whether a grant of letters of administration de bonis non should be issued.

4. Applicable Law

• Rule 49, Probate & Adm. Rules: Process for applications regarding estates not covered elsewhere.
• Section 81, Law of Succession Act: Powers of surviving joint executors/administrators.
• Section 76(e) and paragraph 6, Fifth Schedule: For issuing letters of administration de bonis non where no surviving administrator exists.
• Section 66: Courts may appoint an administrator suo motu.
• Article 159(1) (Constitution): Courts to uphold justice irrespective of procedural missteps.

5. Court’s Analysis

• Section 81 only applies when some administrators survive—not applicable here as all died.
• No law provides for substitution where all joint administrators have died.
• Under Section 76(e), once administrators die, the original grant becomes ineffective (“inoperative”), and a limited grant of letters of administration de bonis non is appropriate to complete the estate administration.
• Despite procedural mislabelling under Rule 49, the Court relied on its inherent powers and the Law of Succession to remedy the situation.

6. Decision / Holding

• The original grant to Rhoda, Rebecca, and Hosea is revoked.
• A grant of letters of administration de bonis non is issued to Monica Rukwaro, with a certificate of confirmation in her name.
• The Court invoked Sections 76(e) & 66, the Fifth Schedule, and Article 159(1) to make the appropriate order.

7. Significance / Impact

• Clarifies that where all joint administrators die before estate conclusion, the original grant becomes void, and a de bonis non grant must be issued.
• Affirms judicial power to correct procedural inaccuracies and appoint an administrator to prevent estate administration collapse.

8. Conclusion

The court resolved the administrative gap by empowering Monica Rukwaro to administer her late relative’s estate, ensuring legal continuity and fairness.

Commentary on the tension between procedural compliance and the constitutional imperative of fair hearing under Article 50(1) of the Kenyan Constitution: The Case of BOD County Referral Hospital Kitale & Another v DN (Civil Appeal E043 of 2023)

I. Introduction

This case explores the tension between procedural compliance and the constitutional imperative of fair hearing under Article 50(1) of the Kenyan Constitution. It presents a compelling judicial reflection on the effectiveness of electronic service, procedural default, and judicial discretion in the setting aside of ex parte judgments. The High Court's approach is a significant development in Kenyan civil procedure, especially in the context of access to justice in the digital age.

 

II. Procedural Justice in the Age of Digital Communication

At the heart of the dispute was the validity of electronic service via email, purportedly used to notify the Appellants of the hearing date. The court’s decision hinges on the interpretation of Order 5 Rule 22B of the Civil Procedure Rules, 2010, which mandates that service through email must be verifiable. In this instance, the absence of a delivery or read receipt was deemed fatal.

A. The Court’s Rationale

The court rightly rejected the notion that an email is deemed served upon being sent. The requirement of proof of delivery ensures that the recipient has actual or constructive knowledge of the proceedings—a safeguard against abuse and procedural shortcuts.

This decision is consistent with jurisprudential trends in other common law jurisdictions (e.g., the UK’s CPR Part 6), which have gradually embraced electronic service but also imposed strict evidentiary standards to confirm delivery. Thus, the court affirmed that technology must serve justice, not erode it.

 

III. The Right to a Fair Hearing and Judicial Discretion

The denial of the Appellants’ application to set aside the ex parte judgment was another focal point. The High Court took issue with the trial magistrate’s failure to properly weigh the Appellants’ explanation for non-attendance, the lack of willful default, and the substantial nature of the defense.

A. Constitutional Overlay: Article 50(1)

Article 50(1) enshrines the right to a fair and public hearing, a principle the court treated as non-derogable and foundational to Kenya’s democratic legal order. The judgment reflects a shift toward substantive constitutional reasoning, wherein procedural rules must yield when they undermine constitutional values.

B. Discretion as a Tool for Justice

The trial court’s refusal to set aside the judgment demonstrated a mechanical application of procedure that failed to serve justice. In contrast, the appellate court used discretion creatively and judiciously, aligning with Kenyan courts' broader post-2010 jurisprudence that prioritizes access to justice over rigid technicality.

 

IV. Implications for Civil Practice and E-Justice

This decision sets an important precedent for electronic service in litigation, particularly as Kenyan courts digitize and adopt virtual platforms post-COVID-19.

Key Implications:

1.       Proof of electronic service must meet the same standards as physical service. Courts are likely to demand email logs, delivery confirmations, or affidavits from IT officers.

2.       Lawyers must exercise due diligence when relying on electronic means. Assuming that an email "sent" is "received" could amount to professional negligence.

3.       Courts may become more receptive to setting aside default judgments where procedural irregularities in electronic service are shown.

 

V. Normative Reflection

This case illustrates a deeper jurisprudential point: procedure is not an end in itself but a conduit for justice. As Kenya modernizes its judicial infrastructure, cases like this push back against the overformalization of technical rules. They invite judges to be guardians of fairness, especially in cases involving vulnerable parties—here, a minor victim of alleged medical negligence.

Moreover, the court’s reasoning strengthens public trust in judicial processes by showing that the judiciary remains committed to accountability and equity, even when litigants fail to meet procedural expectations due to external failures like poor communication or IT systems.

 

VI. Conclusion

BOD County Referral Hospital Kitale & Another v DN is a landmark in affirming that procedural rigor must coexist with constitutional fidelity. It signals a maturing jurisprudence that embraces innovation without compromising fairness. As Kenya continues integrating digital tools into court processes, this case will likely serve as a reference point for balancing efficiency with equity in civil procedure.

Legal Brief of the Case available here