Due Process in the ‘Trial Period’: Why Probationary employment status cannot override Constitutional Guarantees.

This article examines and addresses the legal framework governing termination of employment under probationary contracts. It further examines the constitutional framework governing the protection of employees under probationary contracts and the unconstitutionality of Article 42(1) of the Employment Act, 2007.

1. Introduction

Employees under probationary contracts are entitled to the procedural safeguards contained in Section 41 of the Employment 2007, when it comes to termination of their employment status.

For context, a probationary contract is a contract of employment, which is of not more than twelve months duration or part thereof, is in writing and expressly states that it is for a probationary period. The importance of a probationary contract is for an employer to assess the employee’s suitability and allow for termination if the employee is found wanting.

Section 42 (1) of the Employment Act stipulates that an employee under probation is not entitled to the due process enshrined under Article 41 (1) of the Employment Act. However, emerging jurisprudence has termed the section unconstitutional for violating key constitutional principles and labour rights protected under the Bill of Rights.

2. Statutory conflict

Picture by Freepik

Section 41 of the Employment Act provides that; “subject to the provisions of Section 42(1) an employer shall before terminating the employment of an employee on grounds of misconduct, poor performance, or physical incapacity explain to the employee in a language the employee understands, the reason for which the employer is considering termination, the employee shall be entitled to have another employee or shop floor union representative of his choice present during this explanation.”

Section 42 (1) of the Act further provides that the provisions of Section 41(1) of the Act shall not apply where the termination is based on probationary contracts. The effect of this section is that it excludes the principle of “audi alteram parte”, which requires persons to be afforded an opportunity to be heard before making adverse decisions against them. This principle is enshrined in the constitution; therefore, the wording of Article 42 (1) is unconstitutional and therefore null and void. This position has further been upheld by the Court of Appeal.

3. Rationale for finding Section 42(1) of the Employment Act 2007 Unconstitutional.

3.1 Court of Appeal Decision

The Court of Appeal in its decision of finding Section 42 (1) of the Act unconstitutional, in Kibuchi & 6 others v Mount Kenya University; Attorney General (Interested Party) (Petition 94 of 2016) [2021] KEELRC 2310 (KLR) and Red Lands Roses Ltd v Mugo [2025] KECA 96 (KLR) noted that; Article 47 of the constitution confers every person a right to fair administrative action which includes reasonability and procedural fairness. If a person’s fundamental freedom or right is likely to be adversely affected by an administrative decision, the person has the right to be given written reasons for the action.

The court invoked Article 24 of the constitution on limitation of rights and fundamental freedoms holding that a right shall be limited if the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, holding that the limitation of an employee’s right to be heard under article 42(1) based on the fact that they are probationary employees was neither reasonable nor justifiable.

The court further interpreted the meaning of an employee under section 2 of the Act, where an employee is defined to mean a person employed for wages or salary and includes an apprentice and indentured learner. Although the Act defines a probation contract in relation to its duration, it does not isolate a person employed under a probationary contract from the general definition of an employee. Therefore, a reading of Section 41 together with the implicit provisions of Section 42 of the Act renders the provisions of Section 42(1) legally unsound.

To limit the right of an employee based on the contractual period of his employment does not conform with the spirit of Article 24 of the Constitution.

Labour rights are part of the Bill of Rights by virtue of Article 41 of the Constitution. Article 24 of the Constitution prohibits the limitation of a right or a fundamental freedom in the Bill of Rights except by law and only to the extent that the limitation is reasonable and justifiable in an open and democratic society, based on human dignity, equality and freedom.

4. Reaffirmation by the High Court

Similarly, the High Court in Mbugua v New Muthokinju Hardware Ltd [2025] KEELRC 748 (KLR) upheld this fundamental principle. In addition to this, it held that a probationary contract cannot at the same time be a fixed-term contract. A probationary contract is one issued for a definite period of time, at the end of which it is either terminated or confirmed. The period of a probationary contract is also one that can be extended, while the term of a fixed-term contract cannot be extended, as if it is, it ceases to be fixed-term. This was an important holding, which protects employees from employers who blur the lines in order to escape liability.

Conclusion

These two decisions are fundamental in cementing the constitutional labour rights of an employee. An employer is placed under an obligation to present an employee with formal charges and hear him in his defence before terminating a probationary contract. The provision of furnishing valid and fair reasons for termination is equally not ousted when it comes to terminating the employment of probationary employees.

Written by Paul Nyaosi and Michael Muchomba

This article is for informational purposes only and does not constitute legal advice. For tailored guidance or support in navigating this transition, please contact us at advisory@mckayadvocates.com