Legal Analysis/Commentary on the extension of probationary contracts and procedural fairness under the Employment Act: The case of Pamba v Kenya HospitalAssociation [2025] KEELRC 1776 (KLR)

Full 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.

Legal analysis of the Supreme Court decision in Okoiti v Portside Freight Terminals Limited & 12 Others (Petition E011 of 2024) [2025] KESC 44 (KLR).

Background

• The Kenya Ports Authority (KPA) wanted to establish a second bulk grain handling facility at the Port of Mombasa. The current facility was operated by Grain Bulk Handlers Limited (GBHL). KPA desired to diversify and introduce competition, reduce monopoly risk, and improve strategic / security posture. (Kenya Law)
• KPA applied to use the Specially Permitted Procurement Procedure (SPPP) under Section 114A of the Public Procurement and Asset Disposal Act (PPAD Act) instead of a competitive procurement procedure. 
• Portside Freight Terminals Limited was eventually granted a license (plus wayleave) to establish this second grain terminal, via use of SPPP. 
• Several other parties (including applicants who submitted unsolicited proposals, other potential bidders, and public interest groups) challenged this, arguing that the procurement process violated constitutional values and articles, including the obligation under Article 227 that procurement be fair, equitable, transparent, competitive, and cost‑effective. Also, that the Port Master Plan (2017‑2047) had been undermined because the location choice (Mombasa Port) was not consistent with published plan which had Dongo Kundu or Lamu as envisaged sites.
• The case proceeded through the High Court, then the Court of Appeal, and finally to the Supreme Court of Kenya.

Legal Issues

Among the key issues before the Supreme Court were:

1. Jurisdiction – whether the Supreme Court had jurisdiction under Article 163(4)(a) of the Constitution to entertain the appeal, given that constitutional issues were raised. 
2. Locus standi – whether the appellant (and public interest organizations) had standing (including under Articles 22 & 258) to bring the petition, whether they could do so on behalf of other parties.
3. Validity of the invocation of SPPP under Section 114A – whether KPA’s use of that procedure was lawful; whether the conditions under that section (e.g., exceptional requirements, public interest or national security) were satisfied. 
4. Compliance with Article 227 of the Constitution – whether the procurement process was "fair, equitable, transparent, competitive, cost‑effective." 
5. Master Plan / Public Participation – whether variations of the Port Master Plan (especially the site locations) required fresh public participation; whether the master plan is binding; whether deviation amounted to unconstitutional variation. 
6. Ultra vires actions / usurpation of roles – whether the Board of Directors of KPA usurped functions of the accounting officer; whether decisions to issue license / wayleave were made outside the legal authority.

The Supreme Court’s Holding

The Supreme Court ruled, among other things:

• The Petition (E011 of 2024) was allowed. 
• The Supreme Court set aside the judgment of the Court of Appeal insofar as it had found that the use of SPPP under Section 114A breached the Constitution. In effect, the Supreme Court agreed with the High Court that the invocation of SPPP in this case was unconstitutional and void. 
• The decision of Kenya Ports Authority to grant Portside Freight Terminals Limited the license to establish the facility via the SPPP was inconsistent with Articles 10(2)(c) (national values and principles of governance such as transparency, accountability), 201(a) (public finance principles), and 227(1) (public procurement principles). 
• The Court ordered that any procurement for the second bulk grain handling facility at the Port of Mombasa must be done strictly in accordance with the law through competitive bidding. The decisions / license granted under SPPP in this instance were null and void, and cannot proceed. 
• On costs: since this was a public interest matter, each party was to bear its own costs. 

Reasoning (Supreme Court’s Analysis)

Some of the key legal reasoning points include:

• Constitution as Supreme Law: Any law that conflicts with the Constitution is void to the extent of inconsistency (Article 2 of the Constitution). The court emphasised this supremacy, especially in procurement, which often involves public funds. 
• SPPP under Section 114A: While Section 114A and Regulation 107 provide for special procurement in exceptional cases (where open competitive procurement is impracticable, costly, or impossible), these exceptional requirements must be demonstrated. The Supreme Court found that KPA did not satisfactorily show that exceptional circumstances existed in this case to justify SPPP. Thus the invocation was not justified. 
• Procurement Principles: Article 227 requires that procurement systems adhere to fairness, equity, transparency, competitiveness, and cost‑effectiveness. These are non‑negotiable constitutional mandates, even when alternative procurement methods (like SPPP) are being used. The Supreme Court held that the process here failed in those respects. 
• Master Plan and Public Participation: The court drew a distinction between master plans (strategic plans) vs laws/statutes. While master plans have high normative value, they are not laws in themselves, so failing to adhere to every detail of a master plan does not always constitute constitutional violation. However, where a variation is made, especially for public policy or procurement, and such variation affects rights or stakeholders, public participation may become necessary. In this case, the Court held that the change from the planned sites without adequate stakeholder/public participation was problematic.
• Role of Accounting Officer / Board Powers: The Supreme Court clarified the legal roles: the accounting officer (or prosecuting entity) is responsible for procurement, and the Board’s powers are limited. If the Board’s decisions or approval go beyond what law allows, or substitute for the accounting officer, they may be ultra vires. In this case, some actions exceeded legal powers.

Implications and Significance

The decision is significant for procurement law and constitutional governance in Kenya. Some of the implications:

1. Reaffirmation of Procurement Constitutionalism: It solidifies that procurement, especially of public infrastructure, is not just administrative/tactical but deeply constitutional. Public procurement statutes and regulations must align with constitutional values. There are limits even in “special procurement” regimes.
2. Limits of SPPP / Alternative Procedures: The judgment clarifies that SPPP is not a carte blanche to avoid competitive tendering. The exceptional requirements in law must be satisfied and shown concretely, not merely asserted.
3. Strengthening Public Participation: It emphasizes that strategic planning (e.g. master plans) cannot be disregarded, especially when decisions deviate. Stakeholder/public participation is a constitutional value and may sometimes be mandatory.
4. Scrutiny of Role Usurpation / Accountability: It reminds public entities that they must respect delegated roles (e.g. accounting officer vs Board), and cannot act beyond their legal mandate.
5. Public Interest Litigation: The decision underscores that even entities without direct pecuniary interest can bring petitions, under Articles 22 & 258, to challenge constitutional violations in procurement and public administration.
6. Monopoly, Competition, Security vs Transparency: The judgment balances strategic policy goals like security, food security, diversification with constitutional safeguards like competition, transparency. Even with strategic importance, constitutional values cannot be subordinated.
7. Precedent for Future Procurement Disputes: This will guide procurement entities, the National Treasury, Cabinet Secretaries, Boards, and courts in future on how to apply Section 114A and public procurement regulations. It increases the risk of procurement contracts being challenged and invalidated if procedural and constitutional standards are not met.

Critiques / Potential Weaknesses / Areas of Ambiguity

Even strong decisions have areas that are potentially subject to critique or future clarification:

1. Master Plan Bindingness: The Court says master plans are not themselves laws, so their terms are not always binding, but deviations may require public participation etc. There’s potential ambiguity in when exactly public participation becomes obligatory vs advisable. More precise thresholds would help.
2. Proof of Exceptional Requirements: The standard for demonstrating “exceptional requirements” under Section 114A is that they must be “impossible, impracticable or uneconomical” to comply with the normal procurement rules. What evidence is required to prove these in different contexts may need more guidance.
3. Competition vs National Security / Public Interest: The judgment allows SPPP under conditions related to public interest or national security. But what counts as “national security” or “public interest” in procurement may be broad and thus susceptible to executive overreach. Clearer criteria or guidelines may be needed to avoid misuse.
4. Remedy and Timing: Since tenders and procurement have timelines, delays in challenging may lead to disruptions. Also, the Court’s order that each party bear its own costs (in public interest matters) is appropriate but may reduce incentives for some claimants to bring similar suits, as costs are still a concern.
5. Effect on Investment / Private Sector Expectations: For companies which invested resources anticipating a license under SPPP, this judgment introduces risk. It may deter some private investment proposals unless there is very clear process and transparency.
6. Role of Unsolicited Proposals: The decision touched upon unsolicited proposals (privately initiated), but left somewhat unclear how those should be handled in relation to SPPP or PPP frameworks. Better doctrine needed for unsolicited proposals within Kenyan procurement law.

Academic Reflections

From a theoretical perspective, this case illustrates tensions in constitutional democracies between delegated powers, procedural fairness, and executive discretion. It demonstrates that even statutory exceptions (like SPPP) must be interpreted in light of constitutional values. It also points toward an evolving jurisprudence in Kenya where public resources (including procurement) are increasingly being understood not only in regulatory-legal terms but constitutional ones.

The case is a useful study in constitutional checks on procurement, environment of checks & balances, and the importance of administrative law principles (fairness, legitimate expectation, ultra vires) in procurement matters.

 Full case available here 

Enforcement of Arbitral Awards and Payment by Installments – A case Analysis of Masongo & Another v Riruta Gardens [2025] KEHC 10371 (KLR)

1. Introduction & Scope
The opinion reviews the High Court’s decision in Masongo & Another v Riruta Gardens focusing on two primary issues:

• Enforceability of arbitral awards within the statutory 90-day setting-aside period.
• Conditions under which courts may allow judgment debts to be paid by installments (ogekalaw.blogspot.com).

2. Background

• The arbitral award was issued on 11 September 2024.
• Applicants sought enforcement under Section 36 of the Arbitration Act.
• The respondent argued enforcement was premature, as the 90-day window under Section 35(3) had not yet expired. Alternatively, the respondent proposed payment in 24 monthly installments with interest frozen from 11 October 2024. The court’s ruling was delivered on 17 July 2025.

3. Legal Issues Considered

• Whether enforcement can proceed before the expiry of the 90-day period under Section 35(3).
• The evidentiary threshold required for installment payment requests (ogekalaw.blogspot.com).

4. Legal Framework

• Arbitration Act, 1995 (Revised 2010):
• Section 35(3): 90-day window for setting aside awards.
• Section 36: Enforcement of domestic arbitral awards.
• Civil Procedure Rules, 2010:
• Order 21 Rule 12(1): Court’s discretion to allow installment payments.
• Relevant Case Law: Freight Forwarders Kenya Ltd v Elsek & Elsek (2012) and Keshavji Jethabhai & Bros Ltd v Saleh Abdulla (1959), highlighting good faith and financial disclosure as preconditions for installment arrangements.

5. Court’s Findings & Analysis

• Enforcement Prematurity: The court held that the mere fact the 90-day period hadn't elapsed does not prohibit enforcement unless an application to set aside is pending—no such application existed in this case (ogekalaw.blogspot.com).
• Installment Payments: The court emphasized that such discretion is only exercised when there is sufficient cause, including:
• Comprehensive financial disclosure (e.g., audited accounts);
• Demonstrated good faith (e.g., partial payments made).
  In this case, the respondent failed to provide any supporting documentation or partial payments, and the court thus denied the installment request.

6. Conclusion

• The arbitral award was recognized as the court's judgment.
• The installment payment proposal was rejected.
• Costs were awarded to the applicants (ogekalaw.blogspot.com).

7. Practical Implications

• For Award Creditors: Enforcement should proceed immediately—no need to wait for the 90-day period to lapse unless there’s a pending setting-aside application.
• For Judgment Debtors Seeking Installments: Must present credible financial evidence, demonstrate good faith, and ideally make part payments; otherwise, such requests are unlikely to succeed (ogekalaw.blogspot.com).
• For Future Contracts & Internal Policies: Businesses should reinforce arbitration clauses and train teams on enforcement procedures to ensure smooth execution post-award.

 

Tax authority powers are constitutionally limited : The Case of Robert K. Ayisi v Kenya Revenue Authority & another [2018] KEHC 6948 (KLR)

1. Case Overview

• Parties:
• Petitioner: Dr. Robert K. Ayisi, then-acting County Secretary and Head of Public Service, Nairobi City County.
• Respondent: Kenya Revenue Authority (KRA).
• Interested Party: Nairobi City County Government.
• Outcome:
• Petition granted in favor of the petitioner.

2. Factual Background

• Initial Request:
  KRA, by a letter dated 14 March 2016, demanded transaction details (fee notes, dates, gross amounts, VAT, nature of payments) related to legal services rendered by Prof. Tom Ojienda to Nairobi County (2009–2016), under the Income Tax Act and VAT Act.
• Response:
  Dr. Ayisi replied on 24 March 2016, stating that relevant documents had been forwarded to the Ethics and Anti-Corruption Commission (EACC) in January 2015 and were unavailable.
• Further Demands:
  On 1 April 2016, KRA issued a notice under section 59(1) of the Tax Procedures Act (TPA), demanding a payment schedule. Dr. Ayisi complied by 28 April 2016, though fee notes were still unavailable.
• Additional Documentation:
  A letter on 26 September 2016 sought contract terms, invoices, withholding tax/VAT certificates, and even witness statements; KRA warned of sanctions under sections 99 and 100 TPA.
• Arrest and Detention:
  On 4 October 2016, KRA’s Criminal Investigations Department officers forcibly entered Dr. Ayisi’s office, arrested and frog‑marched him to Times Tower. He was detained for about three hours, humiliated, then released on condition he submits the documents within ten days.

 

3. Legal Issues

Dr. Ayisi’s petition raised several legal questions:

1.        Did KRA’s actions—particularly the arrest—violate constitutional rights to human dignity, freedom, privacy, fair administrative action, and rights of arrested persons?

2.        Were the following provisions of the TPA unconstitutional because they allowed arbitrary search, seizure, or demands without judicial oversight?

o    Sections 44(1) & (2) (seizure of goods);

o    Sections 60(1) & (3) (search powers over premises/documents);

o    Section 59(4) (overriding confidentiality and privilege).

3.        Was Dr. Ayisi entitled to declarations, damages, and protective orders?

4. High Court Findings and Decision

Justice Odunga held:

• Violation of Rights:
  KRA’s conduct—particularly the coercive arrest and treatment of Dr. Ayisi—violated his rights under Articles 29 (freedom and security), 31 (privacy), 47 (fair administrative action), and 49 (rights of arrested persons).
• Unconstitutional TPA Provisions:
• Sections 44(1) & (2) and Sections 60(1) & (3) were declared unconstitutional for enabling seizure and searches without court oversight, infringing Article 31(b).
• Section 59(4) was also struck down for overriding confidentiality/professional privilege.
• Remedies:
  The court granted declarations that KRA’s actions and the TPA provisions were unconstitutional, awarded KSh 2 million in compensation to Dr. Ayisi, and granted costs in his favor.

5. Significance

This case stands as a landmark affirmation that:

• Tax authority powers are constitutionally limited—executive enforcement must respect privacy, due process, and judicial oversight.
• Arbitrary or coercive state power, even by statutory bodies, cannot override constitutional safeguards.
• Compensation is warranted when constitutional violations occur, reinforcing accountability.

6. Appellate Resolution

• Court of Appeal Ruling (May 2023):
  In Civil Appeal (Application) 287 of 2018, KRA’s appeal was dismissed in part. The appellate court upheld Dr. Ayisi’s ban on arrest but restored KRA’s powers to attach property and seize documents under the challenged TPA provisions.

Summary Table

Issue	High Court (2018)	Court of Appeal (2023)
Search & seizure under TPA	Unconstitutional (Sections 44, 59, 60 struck down)	Powers restored
Right to privacy & fair treatment	Violated by coercive arrest and demands	Arrest prohibition upheld (Dr. Ayisi cannot be arrested)
Financial remedies	Compensation awarded (KSh 2 million)	No reported alteration of compensation

 Full Case Robert K. Ayisi v Kenya Revenue Authority & another [2018] KEHC 6948 (KLR)

Fraud vitiates title, and third parties—especially banks—must take extra precautions when dealing with land transactions - The Case of Musa v Musa & 6 Others [2025]

Facts

Eric Musa challenged a series of land transfers involving family land, alleging fraud and forgery in the registration process. He claimed that the 1st respondent, a family member, unlawfully transferred land into her name and then to third parties, including a bank.

Legal Issues

1. Whether the title transfers were tainted by fraud.
2. Whether the High Court erred in dismissing claims despite irregularities.
3. Whether third-party rights (like the bank's) were protected despite the fraud.

Holding

The Court of Appeal allowed the appeal, holding that:

• The transactions were fraudulent.
• The titles were improperly obtained and therefore void.
• The Land Registrar and other parties acted outside lawful procedures.

Legal Principles

• Fraud nullifies title under Kenyan land law.
• Registered title is not indefeasible where fraud is proven.
• Banks and third parties cannot rely on defective titles without genuine due diligence.

Significance

This case strengthens safeguards against fraudulent land dealings, even where third parties like banks are involved. It reaffirms that courts will prioritize lawful ownership over procedural finality.

🔗 Read the full judgment