Legal Analysis on the extension of probationary contracts and procedural fairness under the Employment Act pursuant to Section 42(2): The Case of Pamba v Kenya Hospital Association for & on behalf of the Nairobi Hospital & another [2025] KEELRC 1776 (KLR)

Case: Pamba v Kenya HospitalAssociation [2025] KEELRC 1776 (KLR)

This case involved the unlawful termination of the Claimant’s employment and raised important questions regarding the validity of probationary contract extensions and the procedural safeguards required under the Employment Act.

Background

The Claimant was employed by the Respondents and, at the time of termination, had completed his initial probationary period. The Respondents, however, contended that the Claimant was still under probation and therefore not entitled to the procedural protections afforded under Section 41 of the Employment Act, which requires an employer to give an employee an opportunity to be heard before termination.

The Respondents further relied on Section 42(1) of the Act, which historically excluded probationary employees from the protections of Section 41. However, the Court noted that Section 42(1) had already been declared unconstitutional, thereby removing the legal basis for denying a hearing to employees on probation.

Issue of Probation Extension

Central to the dispute was whether the Claimant’s probationary period had been validly extended.

• The Respondents argued that the probationary period had been extended, and thus the Claimant remained on probation.
• The Claimant disputed this, maintaining that any extension was void, as it was not mutually agreed upon, which is a mandatory requirement under Section 42(2) of the Employment Act.

Section 42(2) provides that a probationary contract may only be extended with the mutual consent of both parties, and such extension must be communicated in writing. Furthermore, the Respondents’ own internal HR policy required any probationary extension to be formalized through specific procedures, which were not followed in this case.

Court’s Findings

The Court found in favour of the Claimant and held that:

1. The probationary period had lapsed by the time of termination.
2. There was no valid extension of the probationary contract in accordance with Section 42(2) of the Employment Act.
3. The failure to mutually agree to the extension and to comply with the Respondents' internal HR policy rendered the purported extension null and void.
4. Upon expiry of the initial probationary period, the Claimant was deemed to have been automatically confirmed in his position.

As such, the Claimant was entitled to procedural fairness under Section 41 of the Employment Act, including the right to be informed of the reasons for termination and to be heard.

Conclusion and Relief Granted

The Court concluded that the termination was substantively and procedurally unfair, having failed to comply with the mandatory procedural requirements under the law. In light of these violations, the Court awarded the Claimant the maximum compensation for unlawful termination, reinforcing the principle that employers must strictly adhere to both statutory and internal procedures when extending probation or terminating employment.

Key Takeaways:

• Probation extensions must be mutually agreed and in writing under Section 42(2).
• Section 42(1), which excluded probationary employees from a fair hearing, has been declared unconstitutional, restoring full procedural rights even to probationary employees.
• Automatic confirmation occurs upon expiry of the probation period where no valid extension exists.
• Employers must adhere to internal HR policies as well as statutory requirements when dealing with employment contracts.