Probation Periods Under Kenya’s Employment Act: What Employers Can and Cannot Do

Probation is the stage of employment where Kenyan law gives employers the most latitude, but that latitude is narrower than most job offer letters suggest. The Employment Act, 2007 sets a hard ceiling on how long probation can run, a short notice period for ending it, and a rule that bars most probationary complaints from the standard unfair termination process. It does not, however, leave probation entirely unregulated, and recent case law has complicated the picture in ways every Kenyan employer should understand before drafting a probation clause or acting on one.

How Long Can a Probationary Period Last?

Section 42 of the Employment Act governs probationary contracts directly. Under section 42(2), an initial probationary period must not exceed six months. It may be extended, but only once, for a further period of not more than six months, and only with the agreement of the employee. Section 42(3) then caps the total: an employer may not keep an employee on a probationary contract beyond the aggregate period allowed under subsection (2), meaning twelve months is the absolute statutory ceiling, however the initial period and extension are combined.

Two points are easy to get wrong in practice. First, the extension is not automatic and cannot be imposed unilaterally by simply declining to confirm the employee. The Act conditions it on the employee’s agreement, and since the probationary contract itself must be in writing, employers should document any extension in writing too, with a clear reason for it. Second, “up to six months plus up to six months” is a maximum, not a default. Many employers extend probation routinely when the real issue is that performance was never properly assessed within the original period, which is a management failure rather than a legal entitlement.

Ending Employment During Probation: The Notice Rules

Section 42(4) sets a distinctly short notice period for terminating a probationary contract. Either party may end it by giving not less than seven days’ notice, or the employer may pay seven days’ wages in lieu of notice. This is markedly shorter than the notice that applies once an employee is confirmed: section 35(1)(c) of the Act requires at least twenty-eight days’ written notice, or pay in lieu, to terminate the contract of an employee paid monthly or at longer intervals. That gap is exactly why some employers try to stretch probation rather than confirm an employee they are unsure about, and why doing so carelessly creates risk, as the next section explains.

Does Unfair Termination Protection Apply to Employees on Probation?

This is the least settled question in this area, and any article giving a flat yes or no answer is oversimplifying. The Act’s text points toward limited protection. Section 42(1) states that section 41, the requirement to explain reasons for termination and hear the employee before dismissing for misconduct, does not apply where the termination ends a probationary contract. Separately, section 47(6) provides that “no employee whose services have been terminated or who has been summarily dismissed during a probationary contract shall make a complaint under this section,” referring to the unfair termination and summary dismissal complaint procedure in section 47.

Read together, the plain wording suggests a probationary employee cannot invoke the section 41 hearing requirement or bring a section 47 unfair termination complaint. However, the Employment and Labour Relations Court has directly challenged that reading. In Monica Munira Kibuchi & 6 others v Mount Kenya University; Attorney General (Interested Party) [2021] KEELRC 2310, a three-judge bench declared section 42(1) unconstitutional to the extent it strips probationary employees of section 41’s procedural safeguards, finding the exclusion inconsistent with the right to fair labour practices and fair administrative action under the Constitution. Other decisions of the same court have taken the traditional view that the unfair termination framework simply does not apply to probation. The result is a genuine split in the case law, not one settled position.

For an employer, the practical lesson is not to treat probation as a free pass to dismiss without reason or process. Even where the strict statutory language may permit it, a probationary employee terminated abruptly, without explanation, or in a manner that looks arbitrary or discriminatory has a real prospect of persuading a court to apply fair labour practice standards regardless of section 42(1). Documenting performance issues, giving some indication of the reason for termination, and paying the correct notice remain the safest course even during probation.

What Happens If Probation Continues Past the Legal Maximum?

The Act itself is silent on what happens if an employer simply keeps an employee working beyond the twelve month ceiling without confirming them and without a valid extension in place. Section 42(3) prohibits the practice but does not state a consequence, the way section 42(4) fixes a notice period. This gap has been filled, unevenly, by the courts. Some Employment and Labour Relations Court decisions have held that an employee who continues working past the lawful maximum without confirmation is, in effect, deemed confirmed, reasoning that an employer cannot rely on its own breach of section 42(3) to keep an employee indefinitely exposed to probationary terms. Other rulings and commentary treat the position as less absolute and more fact-dependent.

We would not describe this as settled law with a single automatic rule, and advice stating otherwise with total confidence should be treated with caution. What is clear is that an employer who lets probation run past twelve months without formally confirming, validly extending, or terminating the employee takes on real legal risk. The safer course is straightforward: calendar the probation end date at hire, and make a documented confirmation or termination decision before it lapses, rather than relying on time alone to resolve the employee’s status.