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05 Aug 2021
BY Nigel Shaw

Terminating probationary contracts without a hearing declared unconstitutional by Kenyan courts

The Employment and Labour Relations Court at Nairobi has declared section 42(1) of the Employment Act unconstitutional. This section allows employers to terminate an employment contract during the probationary period, without granting the employee the right to be heard.

In the case of Monica Munira Kibuchi and 6 others versus Mount Kenya University, petition was brought by seven former employees of Mount Kenya University who had been terminated a day before their probationary period was up. The petitioners argued that this violated several constitutional principles.

The court agreed with the petitioners and declared section 41(2) unconstitutional to the extent that it is inconsistent with the Constitution of Kenya which guarantees every person the right to fair labour practices and fair administrative action.

Despite the court’s declaration, the validity of section 41(2) is not impugned yet. The declaration will only take effect upon the amendment or repeal of the section by parliament.  Normally, the court would give guidance to the Labour Ministry as to when such an amendment needs to be made, but in this case, there are no timelines given.  In the meantime, the ministry may publish guidelines to assist employers.

We await to hear if the case will be appealed. However, it is an important declaration for employers to be aware of moving forward.

For any assistance or queries on your employment contracts, do not hesitate to contact us.

 

Nigel Shaw

ENSafrica | Kenya | Managing Partner

nshaw@ENSafrica.com

+254 205 007 000