Some employers still treat probation as a trial period with no strings: if it isn't working, you pay seven days and the person goes. The Employment Act was written to allow something close to that. The courts have since changed the position, and two judgments from this year show what it costs an employer who hasn't caught up.
What the Act says
Section 2 of the Employment Act defines a probationary contract. It has to be in writing, it has to say expressly that it's for a probationary period, and it can't run for more than twelve months.
Section 42 sets the limits. Probation can last up to six months. It can be extended by up to six more months, but only with the employee's agreement, and nobody can be kept on probation beyond that total. During probation either side can end the contract with at least seven days' notice, or the employer can pay seven days' wages instead. If your contract promises a longer notice period, honour it.
Once someone is confirmed, the ordinary notice rules in section 35 apply. For a monthly-paid employee that means 28 days' written notice, unless the contract gives more.
What changed
Section 42(1) says that section 41 doesn't apply when a probationary contract is ended. Section 41 is the right to be told the reason, to bring a colleague, and to be heard before termination. For years judges disagreed about what section 42(1) allowed.
In July 2021 a bench of three judges of the Employment and Labour Relations Court settled it for that court. In [Kibuchi & 6 others v Mount Kenya University; Attorney General (Interested Party) 2021] KEELRC 2310 (KLR), seven employees had been let go during probation with pay in lieu of notice. The judges found "no reasonable and justifiable cause" for excluding probationers from section 41, and declared section 42(1) inconsistent with Articles 24, 41 and 47 of the Constitution to that extent. The university didn't have to pay compensation, because it had relied on the Act as it stood at the time. An employer acting now would struggle to make the same argument.
In January 2025 the Court of Appeal treated that decision as the law. In [Red Lands Roses Ltd v Mugo 2025] KECA 96 (KLR), the employer had ended a human resource manager's employment during probation in 2011 and relied on section 42. The court noted that, to its knowledge, the 2021 decision hadn't been appealed or reversed, and said it couldn't enforce a provision "declared null and void by a court of competent jurisdiction". The employer's appeal was dismissed.
Two cautions. The words of section 42(1) are still printed in the Act, because Parliament hasn't amended it. The 2021 judgment itself urged the Attorney General to start that amendment. We haven't found any later decision reversing the 2021 ruling. What we have found is ELRC judges applying it in 2026, including in the Kariuki case below. The practical position for an employer is this: before ending someone's probation for performance or conduct, give them the reason and a hearing under section 41.
Two cases from this year
Gidraph Kariuki joined Software Group Ke Ltd as Business Development Manager for East Africa in January 2022, on six months' probation. The company said he scored 2.70 against a pass mark of 3.0, and extended his probation to December 2022 by letter. He said he'd never seen the letter. The court looked at his own email from December, asking why his probation had been ended early, and concluded he knew it had been extended. Agreement to an extension, the judge said, "may be express or implied". So the extension stood, and so did the seven days' notice the company gave. But the company couldn't show it had told him termination was being considered, or heard him with a colleague present. In April 2026 the court found the termination unfair and awarded one month's salary, KSh 1,022,670, keeping the award low because of his short service ([Kariuki v Software Group Ke Limited 2026] KEELRC 1146 (KLR)).
Christopher Watembo was hired in April 2024 at KSh 200,000 a month to manage a company's brand sales across Nyanza. In May he was given targets for one hub, Katito, for four months, and the company accepted he met them. In August it served him a notice to show cause about poor performance, his attitude and procurement, held a hearing, and terminated him in September. Its HR witness said its performance policy didn't apply because he was on probation. The court in Kisumu found there had been no evaluation of his work in the other hubs, no complaints produced and no improvement plan. It awarded six months' salary, KSh 1.2 million ([Watembo v We! Hub Victoria Ltd 2026] KEELRC 395 (KLR)).
Watembo had a hearing and the employer still lost. The written targets covered only part of the job he was judged on.
Running probation so the decision holds up
Probation is short. If expectations, check-ins and notes don't start in the first week, there won't be enough on file when the decision comes. A simple plan:
- Before they start. Put the probation in the written contract: its length, the notice, and that any extension needs their agreement. Write one page setting out what the person should be delivering by the end of the first month, the third month and the end of probation. Our guide to role scorecards shows how.
- First week. Go through that page together and agree the support they'll get, including who to ask when they're stuck. You each keep a copy.
- Every month. Hold a short check-in against the page. Note what's on track, what isn't and what support was given, and send the note to the employee the same day.
- Halfway. If confirmation is in doubt, say so in writing, with what needs to change and by when. Our guide to performance improvement plans covers how to set that out.
- Two to four weeks before the end date. Decide. Confirm in writing, or extend with the employee's written agreement and new dates inside the twelve-month limit, or start the section 41 process.
Don't let the end date pass in silence. If no letter goes out, you can end up arguing in court, as in the Kariuki case, about whether probation was extended or the person was confirmed.
(This is an illustrative example, not a client.) A hardware distributor in Eldoret hires Wanjiku as a sales representative on three months' probation. Her page says that by the end of month one she'll have visited all 40 trade customers on her route, by the end of month two she'll have opened five new accounts, and by month three her accounts will be paying within 30 days. At the month-two check-in she has opened two. Her manager notes that the company's delivery lorry was off the road for three weeks, so new customers couldn't be supplied. He records that, agrees a revised target and dates the note. By week ten she's on track, and she's confirmed in writing before the end date. Had she not been, the business would have had dated notes to put in front of her at a hearing, and a record showing it had dealt with its own lorry problem first.
Ending probation fairly
If you decide not to confirm, follow section 41. Our guide to the section 41 hearing covers it step by step. In short: tell the person in writing that you're considering ending their employment and why, in a language they understand. Tell them they can bring a fellow employee or a shop floor union representative. Meet them, listen, and consider what they say before you decide. Then give at least seven days' notice, or the longer period in your contract, or pay in lieu.
Keep the reason consistent with the file. If the file is about sales targets, the letter should be about sales targets.
Doing it every time
None of this is complicated. The hard part is getting a one-page plan, monthly check-ins and a decision before the deadline for every new hire, under every manager, when the founder isn't watching. In our work with founder-led businesses, we often see probation run well for the hires the founder is personally worried about and quietly lapse for the rest. Then a probation ends badly and the file is thin. We've written about the wider version of this problem in performance management for founder-led SMEs.
If you're dealing with a dispute over a probation decision right now, take advice from an employment lawyer on that case. Our work is with the part that comes before: building a way of managing performance where expectations, check-ins and records happen as a normal part of your managers' work, without you having to chase them. The Performance Picture is a ten-working-day assessment of how performance is actually managed across your business. We hear from leadership and staff, look at the records, and show you where things break down and what to fix first. It doesn't assess one employee and it isn't legal advice. You can also start with the free three-minute Quick Picture.
This article gives general information on Kenyan employment law and performance management. It isn't legal advice for a specific case.