Unlawful Extension of Probation and Constructive Dismissal under Kenyan Employment Law: A Commentary on Rosemary Nyambura Wachira v Commercial International Bank Kenya Ltd [2026] KEELRC 654 (KLR)

Introduction

The decision of the Employment and Labour Relations Court in Rosemary Nyambura Wachira v Commercial International Bank Kenya Ltd [2026] KEELRC 654 (KLR) provides important jurisprudential guidance on the legal effect of the expiry of a probationary contract and the threshold for establishing constructive dismissal within the Kenyan employment law framework.

The Court considered whether an employer may lawfully extend an employee’s probation period after the lapse of the contractual probation term and whether sustained hostile treatment in the workplace may amount to constructive dismissal and a violation of constitutional labour rights protected under the Constitution of Kenya, 2010.

Background of the Dispute

The petitioner, Rosemary Nyambura Wachira, was engaged by Commercial International Bank Kenya Ltd in May 2023 as the Senior Branch Manager stationed at the bank’s Westlands Branch. Her contract of employment provided for a probationary period of six months pursuant to section 42 of the Employment Act, 2007.

The petitioner asserted that throughout the probationary period she satisfactorily discharged her duties and received positive feedback from senior management. Upon expiry of the probation period in January 2024, however, the respondent neither confirmed her employment nor communicated any dissatisfaction with her performance.

Subsequently, in February 2024, the respondent purported to retrospectively extend the petitioner’s probation period. The petitioner further contended that she was thereafter redeployed to a junior role with diminished remuneration and later assigned duties within an inadequately structured position lacking operational support.

According to the petitioner, the respondent subjected her to unfair treatment characterised by unreasonable performance expectations, humiliation, intimidation, and persistent pressure intended to force her exit from employment. Owing to the resultant emotional distress and deterioration of her health, she tendered her resignation in September 2024 and instituted proceedings before the Employment and Labour Relations Court alleging constructive dismissal, unfair labour practices, and violation of her constitutional rights.

Issues for Determination

The Court identified the following issues for determination:

1. Whether the respondent lawfully extended the petitioner’s probation period after the expiry of the contractual probation term;
2. Whether the respondent’s conduct constituted unfair labour practices and constructive dismissal; and
3. Whether the petitioner was entitled to the reliefs sought.

Whether the Extension of Probation Was Lawful

In determining the legality of the purported extension of probation, the Court observed that the petitioner’s probationary period had expired without any formal communication extending the probation or declining confirmation of employment.

The Court held that upon lapse of the probation period, and in the absence of lawful extension communicated within the probationary term, the petitioner automatically became a confirmed employee by operation of law.

Justice Wasilwa found that the respondent’s attempt to retrospectively extend probation in February 2024 contravened section 42 of the Employment Act, 2007. The Court reaffirmed the principle that probationary contracts are strictly regulated by statute and any extension thereof must comply with the procedural and substantive requirements prescribed under the law.

The purported extension was therefore declared unlawful and amounting to an unfair labour practice within the meaning of Article 41 of the Constitution.

Whether the Petitioner Was Constructively Dismissed

On the question of constructive dismissal, the Court examined the cumulative effect of the respondent’s conduct toward the petitioner.

The Court took into account several factors, including the inconsistency between the petitioner’s positive performance evaluations and the subsequent adverse treatment, the demotion and reduction in salary, the assignment of unclear and unsupported responsibilities, and the institution of a Performance Improvement Plan despite prior commendable appraisals.

Upon evaluating the evidence, the Court concluded that the respondent had created an oppressive, humiliating, and intolerable working environment which fundamentally breached the implied duty of mutual trust and confidence inherent in every contract of employment.

The Court consequently found that the petitioner’s resignation was not voluntary but was precipitated by the respondent’s conduct, thereby constituting constructive dismissal.

Violation of Constitutional Rights

The Court further held that the respondent’s conduct infringed the petitioner’s constitutional rights under Articles 28 and 41 of the Constitution of Kenya, 2010.

Article 28 guarantees every person the right to inherent dignity and to have that dignity respected and protected, while Article 41 safeguards the right to fair labour practices.

The Court found that the manner in which the petitioner was treated was degrading, unfair, and inconsistent with constitutional and statutory protections governing employment relationships in Kenya.

Reliefs Granted by the Court

Having found in favour of the petitioner, the Court granted several remedies, including:

• compensation equivalent to eight months’ gross salary for constructive dismissal;
• general damages for violation of constitutional rights;
• payment of pension dues;
• costs of the suit; and
• interest on the awarded sums.

Conclusion

The decision in Rosemary Nyambura Wachira v Commercial International Bank Kenya Ltd reinforces the statutory and constitutional protections accorded to employees under Kenyan labour law.

The judgment underscores that employers cannot lawfully extend probationary periods retrospectively after the expiry of the contractual term and affirms that sustained hostile treatment, humiliation, and unfair workplace practices may amount to constructive dismissal.

The decision further illustrates the Court’s continued commitment to upholding the constitutional principles of human dignity, fair labour practices, and procedural fairness within employment relationships.