Introduction
The 2021 judgment of the Employment and Labour Relations Court (ELRC) in Monica Munira Kibuchi & 6 Others v. Mount Kenya University & Attorney General (Petition No. 94 of 2016) [2021] KEELRC 2310 (KLR) reshaped Kenyan employment law. It was not merely a win for seven dismissed employees, it was a constitutional turning point that placed fairness above managerial discretion.
For years, Section 42(1) of the Employment Act, 2007 allowed employers to terminate probationary employees without the procedural safeguards required under Section 41. The Kibuchi Court held this exclusion unconstitutional, affirming that even probationary workers deserve the right to be heard before termination.
Material Facts: What Happened in the Kibuchi Case
In late 2015, Mount Kenya University (MKU) advertised several senior administrative positions. Seven candidates Monica Kibuchi, Janis Mugambi, Milka Kiura, Frankline Gitonga, Pius Mutsoli, Lorraine Onyango, and Irene Okeng’aya successfully applied, interviewed, and were appointed in January 2016 on probationary contracts.
They resigned from prior jobs and reported for duty on 1st February 2016. However, only weeks later, MKU’s Human Resource Department launched internal investigations into how they were recruited, requiring them to submit payslips and certificates from previous employers.
Without any disciplinary hearing or feedback, the University terminated all seven employees’ contracts on 29th April 2016, just as their probation was ending. The reason given: the end of the probationary period. Each was paid 14 days’ salary in lieu of notice.
Feeling aggrieved, the petitioners filed a constitutional petition, arguing that Section 42(1) of the Employment Act which denied probationary employees a right to a hearing was unconstitutional as it violated:
- Article 41 (fair labour practices),
- Article 47 (fair administrative action), and
- Article 50 (right to fair hearing).
They sought declarations of unconstitutionality, compensation, and damages for unfair termination.
The Core Legal Issue
The central question before the Court was:
“Is Section 42(1) of the Employment Act unconstitutional for denying probationary employees the right to a hearing under Section 41?”
The Attorney General, as Interested Party, argued that probationary contracts exist precisely to test an employee’s suitability and thus the employer need not justify termination. The Petitioners’ counsel, Mr. Achiando, countered that this rationale contravened constitutional guarantees of fairness and dignity.
The Court, Justices M. Mbaru, J. Abuodha, and L. Ndolo, was thus called upon to reconcile statutory discretion with constitutional fairness.
The Court’s Findings and Decision
The three-judge bench unanimously held that:
“Section 42(1) of the Employment Act, insofar as it excluded an employee holding a probationary contract from the provisions of Section 41, is inconsistent with Articles 41 and 47 of the Constitution and is therefore null and void.”
The Court reasoned as follows:
- All employees are protected: Section 2 of the Employment Act defines “employee” broadly to include apprentices and learners. The Act does not exclude probationers from this category.
- Inconsistency with the Constitution: Labour rights are part of the Bill of Rights (Article 41), and any limitation must be reasonable and justifiable under Article 24 which Section 42(1) failed to meet.
- Procedural fairness applies to all: Excluding probationers from Section 41 protections denied them administrative fairness under Article 47.
- Fairness is inherent to human dignity: Employment, the Court observed, ranks next to life and land in its emotional and social impact. It therefore demands fair treatment.
Although the petition succeeded in part, the Court declined to award compensation, noting that MKU had relied on the law as it stood at the time.
Key Cases Cited in the Kibuchi Judgment
The bench undertook a comprehensive analysis of both local and comparative jurisprudence, harmonizing conflicting precedents.
Kenyan Precedents
Danish Jalang’o v. Amicabre Travel Services [2014] eKLR where Rika J held that Section 42(1) was valid, and employers owed no procedural duty to probationary employees.
John Muthomi Mathiu v. Mastermind Tobacco (K) Ltd [2018] eKLR in which Nzioki wa Makau J agreed, finding that probationers cannot expect the same safeguards as confirmed employees.
Evans Kiage Onchwari v. Hotel Ambassadeur [2016] eKLR during which Ndolo J took a constitutional stance, holding that Article 41 guarantees apply to all employees and that Section 42(1) was unconstitutional.
Samwel G. Momanyi v. Attorney General [2012] eKLR Lenaola J (as he then was) struck down Section 45(3) of the Employment Act as discriminatory, reasoning that limiting protection by tenure violated Articles 27 and 48.
Menginya Salim Murgani v. Kenya Revenue Authority [2002] – Ojwang J (as he then was) emphasized the deep social and psychological importance of employment, laying the philosophical foundation for fairness in labour law.
By reconciling these decisions, the Kibuchi Court declared that constitutional fairness overrides statutory exclusion.
Comparative Jurisprudence
South Africa case of Palace Engineering (Pty) Ltd v. Ngcobo & Others [2014] ZALAC 7: The Labour Appeals Court held that even for probationers, dismissal must be substantively and procedurally fair, in line with the Code of Good Practice under the Labour Relations Act, 1995. The Kibuchi bench cited this as a model for Kenya’s progressive constitutionalism.
In Canada the Kenya Court looked at the case of Nagribianko v. Select Wine Merchants Ltd (2016): The Ontario Court of Appeal found that a probationer could be dismissed without notice if the decision was made in good faith. The Kenyan judges found this too deferential and unsuitable in a constitutional democracy where fairness is entrenched.
Thus, while acknowledging common-law flexibility, the Court placed Kenya’s constitutional standards above contractual convenience.
Broader Impact and Continuing Relevance
The Kibuchi decision has had profound and lasting effects:
- All employees, including probationers, must be heard before termination.
- HR policies and contracts must be revised to reflect compliance with Section 41 and the Constitution.
- Employers are encouraged to document performance evaluations and give feedback during probation to justify decisions.
This case has become the definitive precedent guiding the Employment and Labour Relations Court, Labour Office inspectors, and HR compliance officers alike.
Conclusion
The Kibuchi decision is more than a legal ruling, it’s a manifesto of fairness. It teaches that probationary employment cannot be a shield for arbitrary treatment. Every employee, regardless of tenure, deserves respect, voice, and dignity.
At B M Musau and Company, Advocates LLP, we continue to advise our clients, both employers and employees, on aligning their HR practices with this constitutional standard.
Fairness is not only a legal duty, it’s good business.
Legal Disclaimer
This article is provided for general informational and educational purposes only. It does not constitute, and should not be relied upon as, legal advice or legal opinion. Readers are advised to seek specific legal counsel from qualified professionals regarding their particular circumstances.
For personalized advice or representation on employment and labour law matters, please contact: 📧 info@bmmusau.co.ke