Legal Analysis of Adverse Possession in Kenya

 

Contents: 

1. What is Adverse Possession?

2. The Elements and Common Defenses

3. Its application in Land Law today

What is Adverse Possession?

In its most basic sense, “adverse possession” is a legal doctrine that allows a person to acquire legal ownership of property that he treats as his own, if he does so for a long enough period of time, even though the property is not his own.   In other words, a person who uses another person’s property, without permission, for a long enough period of time, can acquire legal ownership of that property.   As an   example,   if   a fence   separates two properties — Parcel A and Parcel B — but   does not run along the actual property line,   a portion of Parcel B might be   located on Parcel A’s side of the fence.

If the owner of Parcel A mows and tends to all areas of his property right up to the fence (and is therefore maintaining parts of Parcel B), and does so for the requisite length of time, the owner of Parcel A might be able to acquire legal title to that portion of Parcel B that he has maintained.

Most people are familiar with statutes of limitation.   A statute of limitation sets forth a time period within which one must sue to enforce a right, failing which the person loses the right to sue.   The statute of limitation for a trespass action in Washington is ten (10) years.         If an owner allows another person to continue trespassing on his property and does nothing about it for ten years, the trespasser can acquire legal title to the complacent owner’s land.   Thus, adverse possession is nothing more than a statute of limitation for bringing a trespass action.   After ten years of trespassing, the trespasser can go to court to seek a declaration that the owner has allowed the statute of limitation to pass, and that the claimant     has therefore acquired title to that property.

The Elements of Adverse Possession

A person claiming title to land by adverse possession (I shall refer to such a person as the “claimant”) must prove four basic elements.   The claimant must show that she or he used property belonging to another in a way that was (1) open and notorious, (2) actual and uninterrupted, (3) exclusive, and (4) hostile.[1]

Possession (i.e. use)  of the property that includes  each of the necessary elements must exist for ten years,[2] following which the claimant can go to court and acquire legal title to the property.   As stated above, adverse possession is merely a statute of limitation for trespass.   Thus,   if the title owner of land has knowledge that another person is using his land openly and without his permission, he can sue that person for trespass.   However, if the title owner allows the trespass to continue for ten years, he loses his right   to sue the claimant.   Each of the four elements stated above exists to protect the diligent owner, and also to reward those who productively use land.

Sneaking onto another’s property in the dead of night and ‘using the property’ until the break of dawn is not “open and notorious,” because the true owner would not reasonably be aware of the clandestine use of his property.   For this reason, such surreptitious use of another’s land will never ripen into an adverse possession claim no matter how long it goes on.

Likewise, using another’s property openly and exclusively for one year, but then vacating for some period of time, then occupying it for another year, then vacating (and so on) is not “actual and uninterrupted.”   Thus, even if such intermittent use continues over the course of fifty years such that cumulatively the land has been used and occupied for ten years, such use would not give rise to an adverse possession claim, since the claimant would be unable to establish   an uninterrupted use.

The requirement that the claimant use the land “exclusively” protects a title owner of land who decides to let everyone use his property.

Finally, the “hostile” element does not have the normal definition of ‘hostile;’ it does not mean enmity or ill will.   Rather, ‘hostile’ in the adverse possession context merely means ‘without the owner’s permission.’   Thus, a landowner can explicitly give his permission to allow another to use his land for 100 years and not be subject to a claim of adverse possession.   Think of a landlord who rents to a tenant for more than ten years:   the tenant is there pursuant to an agreement with the owner, and does not adversely possess the property.

Common Defenses

Like all legal doctrines, there are exceptions to the general rules regarding adverse possession, as well as several defenses.   For example, public land can never be adversely possessed.   Open, continuous, exclusive and non-permissive use of land, where the land is owned by the city, county or state, cannot form the basis of an adverse possession claim.

Most “defenses” to an adverse possession claim involve simply proving the non-existence of one or more of the required elements.   The word ‘defense’ in the preceding sentence is put in quotation marks because asserting that   a statute of limitation bars the action, or that another element necessary to an adverse possession claim is absent,   is itself generally considered a defense. Since adverse possession is itself essentially the assertion of a statute of limitation defense to a trespass action, labeling efforts to resist such an assertion a “defense” seemingly puts the terms “claim” and “defense” on their heads.

“Neighborly accommodation” is one of the most common defenses to an adverse possession claim when dealing with developed residential property.   Suppose two houses share a common boundary comprised of a lawn, with no fence separating the two properties.   Allowing your neighbor to walk on, use, or maintain portions of your property may merely be a neighborly accommodation on your part.   Obviously, it would make bad public policy to require neighbors to constantly insist upon asserting their property rights vis-à-vis their neighbor, and accordingly the “neighborly accommodation” defense arose to lessen the tension between encouraging the productive use of land, on the one hand, and avoiding neighbor-on-neighbor acrimony, on the other.

For example, suppose “Bill” and “John” own the neighboring properties described above (sharing a common boundary comprised of a lawn, with no fence separating the two parcels).   Suppose Bill routinely mows the front lawn, including portions of the lawn on John’s side of the property line.   Suppose also that throughout the year, Bill sits on lawn chairs placed in the vicinity of the boundary line, occasionally setting up his chair on John’s side of the line, and occasionally on his own side of the line.   The neighborly accommodation defense would protect John from losing part of his property were Bill to bring a claim for adverse possession.   Bill might be able to prove that he openly, continuously, and exclusively used portions of John’s property and never once sought or received permission from John.   John, however, could defend against such a claim by demonstrating that he was merely extending a neighborly accommodation by not protesting Bill’s use of the property or suing Bill for trespass.   The ‘neighborly accommodation’ defense has its limits, such as where Bill unilaterally decides to build a fence between the two properties, does not consult with John prior to erecting the fence, and it is later determined that the fence encroaches upon John’s property.    Generally, however, courts have stuck to the rule that true owners often do (and should) permit third persons to use their property on an occasional, transitory manner, and that not all use is adverse in this sense.

Some defenses, while common, apply only to certain types of land.   The so-called “vacant land doctrine” applies (as its name suggests) to open, vacant, undeveloped land.   The vacant land doctrine applies a presumption that the use of vacant, undeveloped land is done with the permission of the owner.   If that presumption applies, the claimant must then put forth evidence to rebut that presumption.   In such cases, use which might have been sufficient to establish adverse possession if done on developed property is insufficient when done on vacant land.

One of the most common circumstances giving rise to adverse possession claims occurs when the owner (who I shall call “Owner A”) of property obtains a survey (usually for some reason other than in connection with a boundary dispute), and the survey reveals a disparity between the legal/surveyed property line and a boundary fence.   Owner A realizes that the fence separating his property from his neighbor’s property — a fence that was present when Owner A bought the property and which Owner A always assumed marked the true legal boundary — is five feet closer to Owner A’s house than the true property line.   Owner A understandably asks: “Can I move the fence so that it coincides with the surveyed/legal property line, since that will give me five more feet of yard running the entire length of the fence?”   Unfortunately, the answer to that question is “It depends.”

Adverse possession cases often proceed to trial (rather than being resolved based on a summary judgment motion or other pre-trial disposition) precisely because the questions are so fact-specific.   Often, one or both of the parties has not personally owned the property   for the entire ten year period, in which case it is necessary to investigate how the prior owner(s) used the property, and whether there were any explicit agreements between the prior owners (generally, the prior owner’s use “counts” toward the current owner’s claim).

Discussion

The Limitation of Actions Act is one of those small-sized statutes in our laws which advocates can ignore only at their peril. In contrast, the Kenyan law of land is spread over a whole gamut of statutes, with elaborate provisions and different regimes that leave all but the seasoned legal practitioner irredeemably baffled.

Adverse possession has been defined to mean "possession inconsistent with the title of the owner. But not for instance possession under licence from the owner or by way of trust on his behalf. There must be denial of the owner's title in one form or another for possession to be adverse." (Mutiso v Mutiso 2001).

In the 1980's, the primary use of adverse possession was by the equitable purchaser without legal title in land. In Public Trustee v Wanduru (1984) the purchaser of land had failed to obtain title before bringing the suit for adverse possession. Madan JA gave the leading judgement and held that the purchaser's widow had been in continuous open exclusive and uninterrupted adverse possession of the land since the moment of sale and not 3 months later when failure of Land Control Board consent made the sale void for all purposes. He held, "Provisions of the Land Control Act have no application where the claim to title of agricultural land is by operation of law, such as by adverse possession. It is not an agreement, a transaction or a dealing in agricultural land."

Kneller JA concurred but went further, in reliance on some Indian authorities, to hold that not even persistence in a suit for possession or a decree establishing the owner's right without successful execution would disturb the occupier's adverse possession.

Several years later, the courts in Kiritu v Kabura (1993) and Murathe v Gathimbi (1998) decisively rejected this ratio. Kwach, JA led the court in upholding the ratio of Potter JA in Githu v Ndeete that the filing of a suit for possession prevents time from running. In Murathe the court went on to say, in contrast to Wanduru, that the claim for adverse possession in the suit land could only have begun from the time when the statutory period for obtaining Land Control Board consent lapsed and the agreement became void.
Wamukota v Donati (1987) involved once again an agreement to sell that had become void for all purposes, both equitable and legal, after failure by the vendor to obtain Land Control Board consent. The vendor had subsequently sold the land to a third party, who colluded with him to defeat the occupier. Since the period of adverse possession had not fully accrued, the case had to be decided on the basis of whether equity could allow statute to be used as an engine of fraud.

Apaloo JA conceded that this view had been implicitly rejected by the Court of Appeal in Rioki Estates Ltd v Njoroge (1977). He however doubted the Land Control Act as judicially construed and applied. "I have, I hope, given full expression to the difficulty I feel about the conclusion to which we have come... I concur in the result reached with no relish, and with far less confidence than my brothers." Here revealed was the painful judicial ascent to the pinnacle of doubt in Kenyan land law.

In Kungu v Thige (1989), the wife claimed adverse possession against her husband. The court rejected her claim on the ground that her possession had not been continuous so as to defeat the interest of a bona fide purchaser under the power of sale. It is surprising that the court did not assert the pre-eminence of the legal chargee's right to the right of an adverse possessor in relation to registered land.

The question of when adverse possession starts against a person entitled to registration was dealt with in Lusenaka v Omocha (1994). Title to the land was in the name of "Settlement Fund Trustees" until 1987 when it was transferred to the original allottee and sold to a third party. The plaintiff had 'purchased' the land in 1964 and moved into possession. The main question was whether adverse possession could run against the SFT, and alternatively whether the original allottee prior to his registration had sufficient title that could be defeated by a claim for adverse possession.

Under the Agriculture Act, no suit by the SFT would be defeated only on the ground of any law of limitation. The question was therefore if any adverse possession could accrue against a person whose ownership of land was unregistered and subject to SFT rights. The court side-stepped the question and held, "[the original allottee] had sufficient title in the land against which the respondent could acquire prescriptive rights through adverse possession."

Contrastingly in Ali v A.G. (1997) the Court of Appeal was to say, "Adverse possession can only be claimed against a properly registered owner, that is to say, possession must be adverse to that of the registered proprietor." In that case, the court rejected the claim and observed grimly, "This appeal has caused us a lot of heartache. Whilst we fully sympathise with Mr Hamisi Ali we cannot and would not overrule the learned judge. We would only express the pious hope that the Commissioner would deem it fit to allocate him some other land elsewhere."

Also in Kaara v Kaara (1997) the court held that the claimant had not acquired title to land by adverse possession because he was on the land with the father's consent, and he had subsequently consented to the division of the land in a succession cause. The court observed, "the limitation. period does not start running unless the land is in the possession of some interest in it hostile to that of the owner thereof. Possession is hostile if it is open, without right, without force or fraud, and exclusive." The bench in Mutiso v Mutiso (2001) would later uphold a preliminary objection and dismiss a suit for adverse possession on the ground that the claimant had pleaded "open and quiet occupation and use of the. land with the full knowledge and consent both of the respondent and his predecessor in title."

In Mbogo v Ngugi (1997) it was the father who was claiming adverse possession against his son. On the question of whether earlier proceedings by the adverse possessor in respect of the land interrupted the accrual of time the court held: "Limitation is a defence by a person in possession of land adversely to the owner's rights. It is the owner of the land who is obliged to take reasonable steps to re-enter his land. This he can do by use of peaceful means or by instituting action to exert his rights over the land."

The 1999 case of Wabala v Okumu is authority for the proposition that adverse possession must be actual, and not merely constructive. The defendant had acquired the land through an informal sale. He lived on the land between 1974 and 1979 after which he moved out of the suit land but continued cultivating it. His house even fell down but was not restored. The court held, "We think that it would not only be wrong but also dangerous to introduce the concept of constructive possession. As the lawyers of old used to say, the occupation must be nec vi, nec clem, nec precario."

An issue that has been animating the courts recently is the question of the procedure in a claim for adverse possession. In Ngethe v Gitau (1999) the court insisted that a claim for adverse possession must begin by originating summons. In Bayete Co. Ltd v Kosgei (1999) the court granted adverse possession to a land buying company against a holder of its shares who had subsequently sold out and abandoned the property but retained his share certificate. It is instructive that this particular suit was commenced by plaint and there was no specific plea of adverse possession. Just one month later in Ting'ang'a Ltd v Moki Savings (1999), two of the judges in Bayete held that a claim for adverse possession must always be made by Originating Summons, never by plaint, not even on account of fraud or complexity.

Yet in Wabala the claim for adverse possession originated as a defence in an action for eviction in the magistrate's court. The Court of Appeal did not comment adversely on the procedure used to agitate the issue. Earlier still in Lusenaka, the plaintiff brought two suits for adverse possession, one by plaint and one by originating summons. The two were consolidated by consent. The court observed, "A claim for adverse possession. must be brought by way of an originating summons... We take it that by conceding to the consolidation of the two suits, the appellants must have agreed to give up their right to object to the plaint filed in Kakamega case as being incompetent and that plaint was probably swallowed up in the originating summons."

Interestingly though, in Ngethe the court held, "the claim by way of adverse possession not having been brought by way of an originating summons. it cannot succeed. There appears to be no authority or provision for the reverse procedure, that is to say for an action begun by plaint (as this was) to be continued as an originating summons."

The lack of relish (Apaloo, JA), the heartaches, sympathy and pious hopes (Tunoi, Shah & Bosire, JJA) of our judges will continue forming the background tapestry to cases of adverse possession in Kenya. The principles of adverse possession will be further tortured and twisted in search of the ever-elusive equity in land title and distribution. In the process, one wonders whether, like a phoenix rising from the ashes, equity will resurrect its principles and become the supreme arbiter of land disputes in Kenya.

 

Conclusion

Adverse Possession is, quite literally, a doctrine that legalizes the theft of land under certain circumstances.   It is a very unintuitive rule in this sense.

However, the elements of adverse possession, as well as the most common defenses to it, along with the extraordinarily long period of time required to establish the claim, together operate to deprive an owner of his property only when the owner unreasonably sits on his rights for an extended period of time.

Hopefully the foregoing article explains the basics of this doctrine.

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[1] Chaplin v. Sanders,  100 Wn.2d 853, 857, 676 P.2d 431 (1984).

[2] RCW 4.16.020.

Cases referred to Court citation LLR citation
1. Rioki Estates Ltd v Njoroge (1977) [1977] KLR 146
2. Public Trustee & anor v Wanduru (1984) C.A. 73/82 [1982] LLR 74 (CAK)
3. Wamukota v Donati (1987) C.A. 6/86 [1986] LLR (CAK)
4. Githu v Ndeete (ref in Murathe v Gathambi)
5. Kungu v Thige (1989) C.A. 20/88 [1988] LLR (CAK)
6. Kiritu v Kabura (1993) C.A. 20/93 (ref in Murathe v Gathambi)
7. Lusenaka v Omocha (1994) C.A. 134/93 [1993] LLR (CAK)
8. Ali v A.G. (1997) C.A. 125/97 [1997] LLR 578 (CAK)
9. Kaara v Kaara (1997) C.A. 79/96 [1996] LLR (CAK)
10. Mbogo v Ngugi (1997) C.A. 19/97 [1997] LLR (CAK)
11. Murathe v Gathimbi (1998) C.A. 49/96 [1996] LLR 433 (CAK)
12. Ngethe v Gitau (1999) C.A. 143/98 [1998] LLR 770 (CAK)
13. Wabala & Anor v Okumu (1999) C.A. 208/97 [1997] LLR 608 (CAK)
14. Bayete Co. Ltd v Kosgei (1999) C.A. 220/98 [1998] LLR 813 (CAK)
15. Ting'ang'a Ltd v Moki Savings (1999) C.A. 286/99 [1999] LLR 1092 (CAK)
16. Mutiso v Mutiso (2001) C.A. 161/98 [1998] LLR 3268 (CAK)

Legal Analysis on Procedural Fairness in Redundancy –The Case of Mwikali v Flame Tree Africa Limited [2025] KEELRC 1809 (KLR)

The Case of Mwikali v Flame Tree Africa Limited [2025] KEELRC 1809 (KLR)

I. Introduction

This memorandum analyzes the decision in Mwikali v Flame Tree Africa Limited, where the Employment and Labour Relations Court found that the Respondent’s redundancy process was procedurally flawed despite issuing a formal one-month notice. The ruling emphasizes the importance of genuine notice, consultation, and fair implementation of redundancy under Kenyan employment law.

II. Issues

1. Whether a redundancy notice that purports to give one month’s notice is valid where the employee is effectively dismissed on the same day.
2. Whether instructing an employee to hand over company property on the same day as a redundancy notice nullifies the notice.
3. Whether the redundancy process adhered to the procedural requirements under the Employment Act.

III. Relevant Law

• Employment Act, 2007 (Kenya):
• Section 40(1): Sets out mandatory procedural requirements for redundancy, including:
• Issuance of at least one-month prior notice to the employee and the labour officer;
• Consultations with the employee or their representative;
• Criteria for selection (e.g., seniority, skills, etc.);
• Payment of redundancy dues (severance pay, accrued leave, etc.).
• Article 41 of the Constitution of Kenya, 2010: Guarantees the right to fair labour practices.
• Case Law Principles: Courts have emphasized that redundancy must be both substantively justified and procedurally fair.

IV. Case Summary: Mwikali v Flame Tree Africa Ltd [2025] KEELRC 1809 (KLR)

Facts:

• The Claimant received a redundancy notice letter dated 18 March 2021, indicating that she would be declared redundant after one month.
• However, in the same letter, the Claimant was instructed to surrender all company property by close of business on the same day.
• The Claimant challenged the validity of the redundancy process, arguing that it was procedurally unfair and not genuine.

Court’s Findings:

• The Court held that despite the formal indication of a one-month notice, the instruction to hand over company property on the same day indicated a constructive termination.
• The employer’s conduct showed it had no intention of retaining the Claimant during the purported notice period.
• The Court found that:
• No genuine notice was given;
• There was no opportunity for consultation, as required under Section 40 of the Act;
• The redundancy process was procedurally flawed and unfair.

V. Analysis

1. Form vs Substance in Redundancy Notice

This case confirms that redundancy notice must be real and effective — not just procedural formality. Simply stating “one month” on paper while forcing an immediate handover is evidence of bad faith and constructive dismissal.

2. Immediate Handovers Signal Immediate Termination

By instructing the Claimant to surrender all company property on the same day, the Respondent demonstrated that the employment relationship was immediately severed, contrary to the purported notice. This undermines the employee’s right to notice and time to adjust or consult.

3. Violation of Section 40 of the Employment Act

The Respondent failed to:

• Conduct genuine consultations;
• Allow the notice period to be effectively served;
• Comply with the spirit and letter of redundancy procedures.

4. Breach of Fair Labour Practices

Such conduct also violates Article 41 of the Constitution, which protects employees from arbitrary dismissal and ensures dignity in the termination process.

VI. Conclusion

The decision in Mwikali underscores the principle that redundancy must be both procedurally and substantively fair. Merely issuing a notice letter is not sufficient — the employer's actions must reflect a genuine intention to follow due process, including providing actual time for notice, conducting consultations, and treating the employee fairly during the transition.

VII. Recommendations

For employers to remain compliant:

1. Ensure the redundancy notice is genuine — do not require handovers or exit procedures until the notice period has lapsed or the employee has been properly relieved.
2. Conduct proper consultations with affected employees and the labour officer as per Section 40.
3. Allow employees to serve the full notice period or pay notice in lieu if immediate exit is intended — but be explicit and transparent.
4. Document all steps in the redundancy process to demonstrate good faith and legal compliance.
5. Train HR and management on the legal requirements of redundancy to avoid legal exposure and reputational damage.

 THE END

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

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.

THE END

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.

Commentary/Analysis: The Case of Okoiti v Portside Freight Terminals Ltd & 12 Others [2025] KESC 44 (KLR)

Case Overview

The Supreme Court decision in Okoiti v Portside Freight Terminals Ltd marked a landmark pronouncement on constitutional compliance in public procurement, particularly regarding the use of Specially Permitted Procurement Procedures (SPPP) under Section 114A of the Public Procurement and Asset Disposal Act (PPAD Act).

The dispute arose after Kenya Ports Authority (KPA) granted Portside Freight Terminals a licence to establish a second grain bulk handling facility at Mombasa Port via SPPP—allegedly bypassing competitive bidding, in breach of Article 227 of the Constitution.

Key Legal Issues

1. Constitutionality of SPPP under Section 114A PPAD Act.
2. Whether KPA’s deviation from competitive procurement was justified by public interest, national security, or exceptional circumstances.
3. Binding nature of the Port Master Plan (2017–2047) and public participation.
4. Whether the decision-making process was ultra vires, particularly in relation to KPA Board vs Accounting Officer roles.
5. Public interest standing and access to justice under Articles 22 and 258 of the Constitution.

Supreme Court's Reasoning

• SPPP Use Was Unjustified: KPA failed to prove that open tendering was impractical or uneconomical. Exceptional circumstances must be demonstrated with evidence.
• Violation of Article 227: Procurement must always be fair, equitable, transparent, competitive, and cost-effective—constitutional principles, not just procedural steps.
• Master Plan Not Binding, But Normatively Important: Deviation from the Port Master Plan required public participation, especially where public interest and national planning were affected.
• Decision Ultra Vires: The KPA Board acted outside its powers in approving procurement decisions—functions lawfully delegated to the Accounting Officer.
• Public Interest Justiciability Upheld: The Court upheld the right of individuals and groups to bring constitutional claims in public interest procurement matters.

Orders and Outcome

• The procurement process was declared unconstitutional and void.
• The licence and wayleave granted to Portside Freight Terminals were quashed.
• KPA was directed to conduct a fresh procurement process under Article 227.
• Each party to bear its own costs, due to the public interest nature of the petition.

Legal and Academic Significance

1. Reassertion of Constitutional Procurement

Procurement is a constitutional matter, not just administrative. Article 227 is enforceable in courts.

2. Limits to SPPP

SPPP is not a backdoor to non-competitive tenders. Exceptional use must be demonstrably justified.

3. Master Plans as Governance Tools

Deviation from master plans may require fresh public participation. Plans carry strong normative weight.

4. Institutional Role Clarity

Public institutions must respect separation of functions—Boards should not override Accounting Officers.

5. Strengthening Public Interest Litigation

Reinforces that citizens and public interest bodies can challenge unconstitutional actions, even without direct commercial interest.

Critique & Areas for Further Development

• Lack of clear standards on what qualifies as “exceptional” for SPPP.
• No bright line for when master plan deviations require participation.
• Risk to investor confidence in alternative procurement methods.
• Judicial remedies were minimal—no structural or time-bound reforms ordered.

📖 Conclusion

Okoiti v Portside Freight Terminals Ltd is a precedent-setting judgment affirming that constitutional principles apply fully to public procurement. It clarifies the limits of discretion under special procurement procedures and reinforces the role of courts in upholding transparency, accountability, and rule of law in public finance.

 

Advisory on Termination Procedures – Lessons from Kamuri v Cleanshelf Supermarkets Ltd [2025] KEELRC 2278

Case: Kamuri v Cleanshelf Supermarkets Ltd [2025] KEELRC 2278

 Background

The recent decision in Kamuri v Cleanshelf Supermarkets Ltd provides critical guidance on the standards and procedures required for lawful termination of employment, particularly in cases involving poor performance or misconduct.

 Key Findings from the Case

1. Procedural Fairness is Mandatory
   The Court held that even where poor performance is alleged, the employer must comply strictly with Section 41 of the Employment Act. This includes:
• Issuing a written notice to show cause.
• Conducting a disciplinary hearing where the employee can be heard.
• Allowing representation by a colleague or union representative.
• Using a language the employee understands.
2. Objective Performance Evaluation Required
   Allegations of poor performance must be supported by:
• Documented performance appraisals.
• A clear Performance Improvement Plan (PIP).
• Measurable and communicated performance standards.
• A reasonable period (2–3 months) to allow the employee to improve.
3. Unlawful Deductions from Terminal Dues
   Employers may not deduct amounts (e.g., for loans or unreturned property) from an employee’s terminal dues unless:
• There is express written consent from the employee, or
• It is permitted by law or a contractual agreement.
  In Kamuri, deductions for a Sacco loan and unreturned laptop were deemed unlawful due to lack of consent and supporting documentation.
4. Compulsory Leave ≠ Disciplinary Process
   Placing an employee on compulsory leave without initiating a proper disciplinary or performance improvement process was criticised. The Court found this inconsistent with fair procedure.

 Recommendations

Based on the court’s decision, we advise as follows:

1. Strengthen Termination Procedures

• Ensure written documentation for every step of the disciplinary process.
• Maintain records of verbal and written warnings.
• Use show cause notices, disciplinary invitations, and hearing minutes.
• Document all attempts to improve employee performance before termination.

2. Conduct Fair Performance Reviews

• Implement a structured performance appraisal system with objective metrics.
• Introduce a clear PIP process with timelines and review points.
• Ensure performance standards are communicated and acknowledged by the employee.

3. Review Deductions Policy

• Do not unilaterally deduct terminal dues.
• Obtain written consent for deductions related to loans, advances, or property.
• Ensure documentary evidence exists (e.g., loan agreements, asset handover forms).

4. Staff Training and Legal Compliance

• Train HR and supervisory staff on legal requirements under the Employment Act, 2007.
• Seek legal review of termination procedures before executing high-risk dismissals.

 Conclusion

The Kamuri decision reinforces the importance of due process in termination cases. Employers must not only have a valid reason for termination but must also ensure procedural fairness and compliance with statutory obligations.

Failure to do so exposes the employer to substantial financial liability, reputational damage, and protracted litigation.

For further guidance or assistance in reviewing your internal HR processes, please do not hesitate to reach out.

Succession Process: Legal Procedure for Obtaining Letters of Administration in Kenya

Overview

When a person dies intestate (without a valid will), their estate must be administered by a court-appointed personal representative. This is done through the process of applying for letters of administration, which legally authorizes a person (or persons) to manage and later distribute the deceased’s estate in accordance with Kenyan succession law.

 

Step-by-Step Process

1. Filing the Petition

The process begins with the filing of a Petition for Grant of Letters of Administration Intestate at the High Court (Family Division) or at designated Magistrates’ Courts depending on the value of the estate.

The following documents must accompany the petition:

• Letter from Area Chief confirming the deceased's dependants and next of kin.
• Affidavit in Support (Form P&A 5) detailing the deceased’s assets, liabilities, and dependants.
• Affidavit of Justification of Proposed Administrator(s) (Form P&A 11) showing capacity and suitability.
• Affidavit of Justification by Sureties (Form P&A 12) sworn by two sureties guaranteeing faithful administration.
• Consent to Petition (Form P&A 38) signed by other persons equally entitled to apply for the grant.

2. Gazettement

After filing, a notice is published in the Kenya Gazette to notify the public of the petition.

• A 30-day objection period follows during which any person may file an objection.

3. Issuance of Grant

If no objections are filed, the court will issue the Grant of Letters of Administration.

• This grant allows the administrator(s) to collect and manage the estate but not to distribute it yet.

4. Confirmation of Grant

Under Section 71 of the Law of Succession Act, the administrator must apply for confirmation of the grant after six months.

• A Schedule of Distribution (Form P&A 15) must be filed outlining how the estate will be shared.
• The court must approve the distribution plan, ensuring fairness and compliance with the law.

🔍 Early Confirmation: The court may allow early confirmation in compelling circumstances, such as urgent financial needs or perishable assets.

 

Key Legal Considerations

• Due Diligence: Administrators must accurately disclose all estate assets and identify all beneficiaries.
• Consent: All beneficiaries or co-petitioners must provide informed consent to avoid future disputes.
• Accountability: Administrators owe fiduciary duties to the estate and may be held personally liable for mismanagement.
• Dispute Resolution: Disputes arising from objections, omission of beneficiaries, or contested distribution are handled through the Family Division of the High Court.

 

Conclusion

The administration of intestate estates in Kenya is a structured process governed by the Law of Succession Act (Cap 160). Proper compliance with the legal requirements ensures efficient management and fair distribution of the deceased’s estate.

We advise clients to seek legal guidance early in the process to avoid delays, errors, or disputes—especially where the estate involves land, multiple beneficiaries, or complex family dynamics.

 

For further assistance or to begin the petition process, please contact Us.