Adverse Possession and Purchasers in Possession: Key Takeaways from Ouko v Kageni

Introduction

The Court of Appeal's decision in Ouko & another v Kageni marks a significant development in Kenyan land law by clarifying when a purchaser's possession under a sale agreement ceases to be permissive and becomes adverse. The judgment addresses the interplay between contractual rights under a land sale agreement and the doctrine of adverse possession under the Limitation of Actions Act.

The dispute arose from a 1977 agreement for the sale of five acres of land in Karen, Nairobi. Although the purchaser took possession and completed payment of the purchase price, the vendor failed to complete the subdivision and transfer of title. The central question before the Court was whether a purchaser who enters possession pursuant to a sale agreement can subsequently acquire title through adverse possession and, if so, when the statutory twelve-year limitation period begins to run.

When Does Possession Become Adverse?

Sections 7, 13, and 38 of the Limitation of Actions Act govern claims for adverse possession in Kenya. Traditionally, courts have held that occupation under a sale agreement is permissive and cannot be adverse to the vendor unless the agreement is repudiated or otherwise becomes ineffective.

In Ouko v Kageni, the Court reaffirmed the principle established in Public Trustee v Wanduru Ndegwa that where a purchaser is already in possession, time for purposes of adverse possession begins to run upon payment of the full purchase price. At that stage, the vendor effectively holds the legal title as a constructive trustee for the purchaser. If the vendor fails to transfer the property within twelve years after receiving full payment, the right to recover the land may be extinguished by operation of law.

The Court emphasized that permission granted under a sale agreement is not indefinite. A vendor cannot rely on an uncompleted transaction to defeat a claim for adverse possession where the purchaser has fulfilled their contractual obligations and remained in possession for the statutory period.

Is Formal Repudiation Necessary?

The appellants argued that the sale agreement had never been formally repudiated and that the respondent therefore remained a licensee. The Court rejected this argument, holding that the commencement of adverse possession does not depend on a formal notice of termination or repudiation.

Instead, the Court focused on the objective conduct of the parties. The purchaser had paid the full purchase price by 1996, while the vendor failed to complete the subdivision and transfer for decades. In those circumstances, the vendor's continued retention of legal title conflicted with the purchaser's equitable right to the property. The Court found that this was sufficient to trigger the operation of the Limitation of Actions Act.

The decision confirms that adverse possession may arise from prolonged failure to complete a land transaction, even in the absence of a formal termination of the sale agreement.

Constructive Possession Remains Sufficient

A further issue was whether the respondent had maintained possession of the land despite residing in the United States. The appellants argued that the property had become dilapidated and that the respondent had abandoned possession.

The Court reaffirmed the principle in Peter Mbiri Michuki v Samuel Michuki that possession need not always be actual or physical. Possession may be constructive where a claimant continues to exercise control over the property.

The respondent had erected structures, planted trees, and managed the land through an employee. These factors demonstrated continued control and occupation despite her absence from the country. Accordingly, the Court held that she had maintained possession for purposes of an adverse possession claim.

Adverse Possession Over an Unsubdivided Portion

The Court also addressed whether adverse possession can be claimed over a defined portion of a larger parcel that has not been formally subdivided. While the trial court awarded the respondent 2.5 acres, the Court of Appeal found that the evidence established occupation of the entire five-acre portion contemplated under the 1977 agreement.

The Court therefore increased the award to five acres, holding that adverse possession may be established over a distinct and identifiable portion of a larger parcel, provided its boundaries can be ascertained with certainty.

Conclusion

The decision in Ouko v Kageni provides important guidance on the rights of purchasers in possession. The Court confirmed that a purchaser's occupation does not remain permissive indefinitely and that the payment of the full purchase price may trigger the commencement of the statutory limitation period where the vendor fails to complete the transfer.

The judgment further clarifies that formal repudiation is not always necessary, constructive possession is sufficient, and adverse possession may be claimed over a clearly identifiable portion of an unsubdivided parcel. For property owners, purchasers, and legal practitioners, the case serves as a reminder that prolonged delays in completing land transactions can have far-reaching consequences, including the loss of title through adverse possession.

 

Adverse Possession in Kenya: Key Lessons from Mwalimu & 6 Others v Halal & Another [2025] KECA 1186 (KLR)

Introduction

The doctrine of adverse possession remains one of the most contentious and evolving principles in Kenyan land law. Rooted in common law and codified through limitation statutes, the doctrine permits a person who has occupied another's land openly, continuously, and without permission for a prescribed period to acquire legal rights over that land.

The recent decision of the Court of Appeal in Mwalimu & 6 Others v Halal & Another [2025] KECA 1186 (KLR), delivered on 4 July 2025, provides valuable guidance on the scope, threshold, and practical application of adverse possession claims in Kenya.

The judgment underscores an important principle: mere occupation of land for more than twelve years is not, in itself, sufficient to establish a successful claim for adverse possession. Rather, courts must examine the character of the occupation, the relationship between the parties, and whether the possession was truly adverse to the registered owner's interests.

Understanding the Doctrine of Adverse Possession

Adverse possession allows an individual who has occupied land belonging to another person for an uninterrupted period of at least twelve years to claim ownership, provided that such occupation is:

• Open and notorious;
• Continuous and uninterrupted;
• Exclusive;
• Actual and physical; and
• Adverse or hostile to the interests of the registered owner.

Where these elements are established, the law may extinguish the registered owner's title and vest ownership rights in the adverse possessor.

However, the doctrine is not designed to reward mere occupation. It protects long-term possession that is inconsistent with the rights of the registered proprietor and where the proprietor has failed to assert those rights within the statutory limitation period.

Case Overview

The dispute concerned Plot No. Mombasa Island Block XV/31, which had been occupied by the family of the late Fadhili Mwalimu for several decades.

The appellants contended that they had continuously occupied the property and operated a motor vehicle garage on the premises for over thirty years. They further argued that they had not paid rent for a substantial period and had therefore acquired ownership rights through adverse possession.

The Court of Appeal, however, rejected the claim.

The court observed that the occupation originated from a tenancy arrangement entered into between the appellants' late father and the former registered proprietor. Consequently, the occupation was initially permissive and could not automatically evolve into adverse possession merely because of the passage of time.

In reaching its decision, the Court reaffirmed several fundamental principles governing adverse possession claims.

Key Legal Principles Emerging from the Decision

1. Permissive Occupation Does Not Constitute Adverse Possession

A recurring misconception in adverse possession claims is that long-term occupation alone is sufficient to acquire ownership rights.

The Court clarified that occupation arising from a tenancy, lease, licence, or any form of permission is not adverse to the owner's title. Time for purposes of adverse possession does not begin to run until the occupier clearly repudiates the owner's title and demonstrates an intention to possess the land inconsistently with the owner's rights.

In the present case, the Court found that any hostility to the owner's title arguably commenced in 2002 following a demand for rent. Since the suit was instituted in 2010, only eight years had elapsed, falling short of the statutory twelve-year requirement.

The decision serves as an important reminder that adverse possession is not measured merely by the duration of occupation but by the nature of that occupation.

2. Fraud Allegations and Adverse Possession Claims Are Incompatible

The appellants also challenged the validity of the respondents' title on grounds of alleged fraud.

The Court rejected this approach, holding that a party cannot simultaneously assert that a registered proprietor's title is invalid and, at the same time, claim adverse possession against that very title.

The two causes of action are legally inconsistent.

An adverse possession claim proceeds on the basis that the registered owner's title is valid but has become extinguishable due to prolonged adverse occupation. Conversely, a fraud claim seeks to invalidate the title altogether.

Litigants must therefore carefully consider the legal basis of their claim before commencing proceedings.

3. Informal and Familial Arrangements Can Give Rise to Future Claims

The judgment also highlights the risks associated with informal land occupation arrangements.

Many landowners permit relatives, friends, caretakers, or other occupants to use land without written agreements or clearly defined terms. While such occupation may begin permissively, prolonged inaction or failure to formalize the arrangement can create fertile ground for future disputes.

To succeed in an adverse possession claim, an occupier must still establish that the occupation eventually became non-consensual, open, exclusive, and adverse for a continuous period of twelve years. Nonetheless, informal arrangements frequently generate evidentiary challenges and increase the likelihood of litigation.

Practical Lessons for Landowners, Purchasers, and Developers

1. Purchasers Must Take Possession Without Delay

The decision underscores the importance of actual possession following acquisition.

Purchasers acquiring land from land-buying companies, cooperatives, estates, or third-party sellers should ensure that they take physical possession immediately upon completion of the transaction.

Merely obtaining a title deed is not always sufficient protection.

Where purchasers fail to enter, occupy, develop, or otherwise exercise control over their land for extended periods, third parties may establish occupation capable of supporting future adverse possession claims.

Recommended Best Practice

Upon completion of a transaction, purchasers should:

• Obtain vacant possession;
• Execute possession and handover certificates;
• Conduct site inspections regularly;
• Fence or mark boundaries where appropriate;
• Maintain photographic and documentary records of possession; and
• Promptly address unauthorized occupation.

2. Expired Leases and Unregulated Occupation Create Significant Risk

Landowners should exercise caution where:

• A lease has expired;
• A licence has been terminated;
• A tenant ceases paying rent but remains in occupation; or
• An occupant remains on the property without a formal agreement.

Failure to take timely legal action may permit the limitation period to begin running against the registered proprietor.

Although every case turns on its facts, prolonged inactivity by a landowner can significantly weaken their position and strengthen the occupant's claim over time.

Property owners should therefore monitor occupation of their land and promptly enforce their legal rights whenever disputes arise.

3. Documentation Remains Critical

One of the recurring themes in adverse possession litigation is the absence of proper documentation.

Landowners should maintain:

• Written leases and licences;
• Rent records;
• Correspondence acknowledging ownership;
• Notices to vacate;
• Inspection reports; and
• Records of any interruptions to occupation.

Such documentation can be decisive in demonstrating that an occupier's possession remained permissive and never became adverse.

Conclusion

The Court of Appeal's decision in Mwalimu & 6 Others v Halal & Another [2025] KECA 1186 (KLR) reinforces the principle that adverse possession is a fact-intensive doctrine requiring more than mere long-term occupation.

The case confirms that permissive occupation cannot mature into adverse possession unless there is a clear and demonstrable repudiation of the owner's title, followed by uninterrupted hostile possession for at least twelve years. It also clarifies that allegations of fraud are fundamentally inconsistent with adverse possession claims and cannot ordinarily be pursued simultaneously.

For landowners, investors, developers, and purchasers, the decision serves as a timely reminder that ownership rights must be actively protected. Regular inspections, prompt assertion of legal rights, proper documentation, and immediate possession upon acquisition remain the most effective safeguards against adverse possession claims.

As land disputes continue to feature prominently in Kenya's courts, this judgment provides important guidance on the evidentiary and legal thresholds that parties must satisfy when asserting or defending claims based on adverse possession.

For publication on a law firm's website, I would also recommend adding a short disclaimer at the end stating that the article is for general information only and does not constitute legal advice.

 

Revocable vs Irrevocable Trusts in Kenya: Which One Is Right for Your Estate Plan?

Revocable vs Irrevocable Trusts in Kenya: Understanding the Difference

Introduction

As more Kenyans engage in estate planning and wealth preservation, trusts have become an increasingly popular legal tool for protecting assets and ensuring a smooth transfer of wealth to future generations. However, many people are unfamiliar with the different types of trusts and how they work.

Two commonly discussed categories are revocable trusts and irrevocable trusts. Understanding the distinction between them can help individuals and families make informed decisions about succession planning, asset protection, and family wealth management.

What Is a Trust?

A trust is a legal arrangement in which a person (the settlor) transfers assets to a trustee, who manages those assets for the benefit of designated beneficiaries.

Assets that may be placed in a trust include:

• Land and real estate
• Shares and investments
• Business interests
• Cash and bank accounts
• Intellectual property
• Other valuable assets

Trusts are increasingly used in Kenya as part of succession planning to avoid family disputes, preserve wealth, and provide for dependants.

What Is a Revocable Trust?

A revocable trust, sometimes referred to as a living trust, is a trust that the settlor can amend, alter, or terminate during their lifetime.

Under this arrangement, the settlor retains substantial control over the trust assets and may change beneficiaries, appoint new trustees, or even dissolve the trust altogether.

Advantages of a Revocable Trust

1. Flexibility

The settlor can modify the trust as family circumstances change. For example, new beneficiaries can be added, or assets can be removed from the trust.

2. Continued Control

The settlor remains actively involved in managing and directing how trust assets are handled.

3. Estate Planning Benefits

A revocable trust can help organise family assets and facilitate the administration of an estate upon death.

Disadvantages of a Revocable Trust

1. Limited Asset Protection

Because the settlor maintains control over the assets, creditors may still be able to pursue those assets in certain circumstances.

2. Limited Tax Advantages

The assets generally remain part of the settlor's estate and may not provide significant tax planning benefits.

What Is an Irrevocable Trust?

An irrevocable trust is a trust that generally cannot be altered, revoked, or terminated once it has been established, except in limited circumstances allowed by law or by the trust instrument.

When assets are transferred into an irrevocable trust, the settlor gives up ownership and control of those assets.

Advantages of an Irrevocable Trust

1. Asset Protection

Since the assets are no longer owned by the settlor, they may be better protected from future creditors and legal claims.

2. Wealth Preservation

Irrevocable trusts can help preserve family wealth across generations by preventing misuse or fragmentation of assets.

3. Succession Planning

They provide a structured framework for distributing assets according to the settlor's wishes.

4. Protection of Vulnerable Beneficiaries

An irrevocable trust can be used to provide for minors, persons with disabilities, or beneficiaries who may not be capable of managing large inheritances.

Disadvantages of an Irrevocable Trust

1. Loss of Control

The settlor generally cannot reclaim trust assets or freely alter the terms of the trust.

2. Reduced Flexibility

Changing family or financial circumstances may be difficult to accommodate after the trust has been established.

Revocable vs Irrevocable Trust: A Quick Comparison

Feature	Revocable Trust	Irrevocable Trust
Can be changed by settlor	Yes	Generally No
Can be cancelled	Yes	Generally No
Settlor retains control	Yes	No
Asset protection	Limited	Stronger
Estate planning benefits	Yes	Yes
Wealth preservation	Moderate	Strong
Flexibility	High	Low

How Trusts Are Used in Kenya

In Kenya, trusts are commonly used for:

• Family succession planning
• Protecting family-owned businesses
• Holding investment properties
• Managing assets for children
• Supporting persons with special needs
• Preserving generational wealth

Trusts can also help reduce disputes that often arise during the administration of estates after the death of a family member.

Which Type of Trust Is Right for You?

The choice between a revocable and irrevocable trust depends on your objectives.

A revocable trust may be suitable if you want flexibility and continued control over your assets.

An irrevocable trust may be appropriate if your primary goals are long-term asset protection, wealth preservation, and structured succession planning.

Every family's circumstances are different, and the most suitable trust structure will depend on factors such as the nature of the assets, family dynamics, business interests, and long-term goals.

Conclusion

Trusts are powerful estate planning tools that can help Kenyan families protect wealth, provide for loved ones, and ensure a smooth transfer of assets from one generation to the next.

While revocable trusts offer flexibility and control, irrevocable trusts provide stronger asset protection and long-term wealth preservation benefits. Before establishing any trust, it is advisable to seek professional legal advice to ensure the structure aligns with your personal and family objectives.

Disclaimer: This article is intended for general information only and does not constitute legal advice. Individuals should seek independent legal counsel regarding their specific circumstances.

Constitutional Boundaries and Reproductive Rights in Kenya: An Analysis of the Court of Appeal Decision in Ann Kioko & Kenya Christian Professionals Forum v PAK & Others

Intro

The decision of the Court of Appeal in Consolidated Appeals of Ann Kioko & Kenya Christian Professionals Forum & Another v PAK & Others, Civil Appeal No. E029 of 2022 and Attorney General & Others v PAK & Salim Mohammed & Others, Civil Appeal No. E030 of 2022 marks one of the most consequential constitutional pronouncements on reproductive rights in Kenya since the promulgation of the 2010 Constitution. Delivered in April 2026, the judgment overturned the 2022 High Court decision in PAK & Another v Attorney General & 3 Others, thereby significantly narrowing the judicial interpretation of abortion-related rights under Kenyan constitutional law.

The appellate court’s decision has reignited national and international debate concerning the relationship between constitutionalism, reproductive autonomy, criminal law, public health policy, and judicial interpretation. Beyond its immediate legal effect, the ruling raises broader jurisprudential questions concerning the scope of socio-economic rights, the role of courts in constitutional transformation, and the tension between moral conservatism and rights-based constitutional adjudication.

Background to the Dispute

The dispute arose from criminal proceedings instituted against a minor identified as PAK and a healthcare provider following a medically induced termination of pregnancy that allegedly resulted in medical complications. The prosecution was founded upon sections 158, 159, and 160 of the Penal Code, which criminalise unlawful abortion in Kenya.

The petitioners challenged the legality and constitutionality of the arrests, prosecution, and broader treatment they received from state agencies. In 2022, the High Court at Malindi delivered a landmark judgment recognising that access to abortion-related healthcare, under certain circumstances, fell within the protection of several constitutional guarantees, including:

• the right to dignity under Article 28;
• the right to privacy under Article 31;
• the right to the highest attainable standard of health under Article 43; and
• freedom from cruel, inhuman, and degrading treatment under Article 29.

The High Court further condemned the criminalisation of women seeking reproductive healthcare and criticised the withdrawal of the Ministry of Health’s Standards and Guidelines on Reducing Maternal Mortality and Morbidity from Unsafe Abortion.

The Attorney General, together with conservative advocacy groups including the Kenya Christian Professionals Forum, appealed the decision.

The Constitutional Question Before the Court

At the centre of the appeal was the interpretation of Article 26(4) of the Constitution of Kenya, which provides:

\text{Article 26(4): Abortion is not permitted unless, in the opinion of a trained health professional, there is need for emergency treatment, or the life or health of the mother is in danger, or if permitted by any other written law.}

The principal issue before the Court of Appeal was whether this provision creates a constitutionally protected reproductive right capable of judicial enforcement or merely establishes a limited exception to the general prohibition against abortion.

The Court adopted the latter interpretation.

The Court of Appeal’s Interpretation of Article 26(4)

The Court of Appeal firmly rejected the proposition that abortion constitutes a standalone constitutional right in Kenya. In its reasoning, the Court emphasised that the Constitution primarily protects the right to life under Article 26(1), and that Article 26(4) merely carves out narrowly defined exceptions where abortion may lawfully occur.

The Court criticised the High Court for what it viewed as an expansive and policy-driven interpretation of constitutional rights. According to the appellate judges, the High Court improperly elevated reproductive autonomy above the constitutional protection of unborn life and effectively created rights not expressly contemplated by the constitutional text.

The judgment therefore reaffirmed the continued enforceability of the Penal Code provisions criminalising abortion outside the circumstances expressly recognised under Article 26(4).

From a constitutional interpretation standpoint, the Court adopted a textual and restrictive approach rather than the transformative and purposive interpretive framework that has often characterised post-2010 constitutional jurisprudence in Kenya.

Reinstatement of Criminal Proceedings

Another critical aspect of the judgment concerned the propriety of the High Court’s intervention in pending criminal proceedings. The Court of Appeal held that the High Court prematurely halted prosecutions without sufficient evidentiary basis demonstrating abuse of prosecutorial discretion or violation of constitutional rights.

The appellate court reiterated the principle that constitutional litigation should not ordinarily be used to circumvent criminal trial processes unless exceptional circumstances are demonstrated. Consequently, the criminal proceedings before the Kilifi Magistrate’s Court were reinstated.

This aspect of the decision reflects judicial caution against constitutional petitions becoming substitutes for ordinary criminal adjudication.

Jurisprudential Significance of the Decision

The decision carries substantial implications for Kenyan constitutional law and reproductive rights jurisprudence.

1. Restrictive Interpretation of Socio-Economic Rights

The judgment signals a notable judicial retreat from the expansive interpretation of socio-economic and reproductive rights that had emerged in several post-2010 constitutional cases. By limiting abortion access strictly to the textual confines of Article 26(4), the Court narrowed the interpretive space previously available for rights-based reproductive healthcare claims.

The ruling may therefore influence future litigation involving reproductive autonomy, healthcare access, and bodily integrity.

2. Reinforcement of Penal Regulation

The decision restores legal centrality to the Penal Code provisions governing abortion. Healthcare providers now operate within a more uncertain legal environment, particularly where questions arise concerning what constitutes danger to the life or health of the mother, emergency treatment, or lawful medical discretion.

The practical consequence may be increased defensive medical practice, reluctance by practitioners to provide reproductive healthcare services, and greater fear of criminal prosecution.

3. Constitutional Morality versus Public Morality

The case also reflects the continuing tension between constitutional morality and societal or religious morality within Kenyan jurisprudence. While the Constitution protects individual rights and freedoms, courts continue to confront politically and morally sensitive questions where public opinion remains sharply divided.

The Court’s reasoning demonstrates a judicial preference for constitutional restraint in morally contested areas, effectively leaving broader policy reform to Parliament rather than the judiciary.

Public Health and Human Rights Implications

Critics of the decision argue that restrictive abortion jurisprudence may inadvertently increase unsafe abortions and maternal mortality rates, particularly among vulnerable women and girls with limited access to healthcare services. Concerns have also been raised regarding the chilling effect on healthcare providers who may hesitate to offer medically necessary treatment for fear of criminal liability.

Human rights organisations have further argued that criminalisation disproportionately affects economically disadvantaged women who lack access to private healthcare or legal support.

Conversely, supporters of the ruling contend that the decision faithfully upholds the constitutional protection of life and prevents judicial overreach into matters that should properly be determined through democratic legislative processes.

Prospects for Supreme Court Review

Given the constitutional significance of the issues involved, the matter is likely to proceed to the Supreme Court of Kenya. Should the Supreme Court hear the appeal, it will have an opportunity to clarify several unresolved constitutional questions, including:

• the scope of reproductive rights under the Constitution;
• the relationship between the right to life and women’s autonomy;
• the legal meaning of “health” under Article 26(4);
• the extent of judicial authority in constitutional rights expansion; and
• the constitutional limits of criminal regulation in reproductive healthcare.

The eventual determination by the Supreme Court may become the definitive authority on abortion jurisprudence in Kenya for decades to come.

Conclusion

The Court of Appeal’s decision in Ann Kioko & Kenya Christian Professionals Forum v PAK & Others represents a defining moment in Kenya’s constitutional and reproductive rights jurisprudence. By rejecting abortion as an independent constitutional right and reaffirming the continued force of criminal prohibitions, the Court adopted a conservative interpretive posture that prioritises textual constitutional limits and legislative authority.

Nevertheless, the judgment leaves unresolved practical and constitutional tensions concerning healthcare access, medical discretion, and the balance between state regulation and individual autonomy. As public debate intensifies and the possibility of Supreme Court review looms, the case is poised to remain at the centre of Kenya’s constitutional discourse on reproductive rights, public morality, and the future direction of transformative constitutionalism.

 

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.

 

Gifts vs Transfers Without Consideration Under Kenyan Law: Key Distinctions and Legal Implications

Introduction

Property transfers without payment are common in Kenya, particularly within families and for estate or tax planning purposes. These transactions are often loosely referred to as “gifts,” but Kenyan law does not always treat every transfer without consideration in the same way. Understanding the legal and tax implications is essential to avoid unintended consequences.

What Is a Gift Under Kenyan Law?

A gift is generally understood as a voluntary transfer of property made without consideration. It is typically motivated by generosity, affection, or goodwill. While Kenyan statutes such as the Land Act and the Land Registration Act do not provide an exhaustive definition of a gift, the concept is well established in practice and case law.

For a valid inter vivos gift (a gift made during the lifetime of the donor), several requirements must be met:

• Intention: The donor must clearly intend to transfer ownership immediately
• Transfer: The property must be effectively transferred to the donee
• Acceptance: The recipient must accept the gift, either expressly or implicitly
• Completion: For registrable property such as land, registration is essential to perfect the transfer

Once completed, a gift is generally irrevocable, unless specific legal grounds exist (such as fraud or undue influence).

Transfers Without Consideration: A Broader Concept

A transfer without consideration simply refers to any transfer of property where no payment or value is exchanged. While all gifts fall into this category, not all such transfers are strictly “gifts” in substance.

Examples include:

• Transfers into a trust or settlement
• Transfers for estate planning purposes
• Intra-group transfers within corporate structures

In these cases, the transfer may lack consideration but still serve a structured legal or commercial purpose rather than a purely donative one.

Legal Formalities and Documentation

The legal requirements depend on the nature of the asset:

• Land and real property: Must comply with the Land Registration Act, including execution of the prescribed transfer forms and registration
• Shares: Require proper share transfer instruments and entry in the company register
• Movable property: May be transferred by delivery, though documentation is advisable

Although a formal “gift deed” is not strictly required under Kenyan law, proper documentation is critical for evidentiary and compliance purposes. Supporting affidavits may also be required, particularly where tax exemptions are sought.

Tax Implications: Capital Gains Tax and Market Value Rules

One of the most important considerations in these transactions is taxation.

Under the Income Tax Act, which governs Capital Gains Tax (CGT):

• Transfers without consideration are often deemed to occur at market value
• This applies especially where the transfer is between connected persons, such as family members or related entities
• As a result, a transaction labeled as a “gift” may still attract CGT based on the property’s market value

Accordingly, the absence of consideration does not automatically eliminate tax liability.

Types of Gifts

Kenyan law recognizes different forms of gifts, including:

• Inter vivos gifts: Made during the donor’s lifetime and take immediate effect
• Donatio mortis causa: Made in contemplation of death and subject to specific legal requirements, often intersecting with succession law

Each type carries different legal consequences and should be approached with care.

Practical Considerations

When structuring a transfer without consideration, parties should consider:

• Whether the transfer is intended as a true gift or part of a broader legal arrangement
• Compliance with registration and documentation requirements
• Potential tax exposure, particularly CGT
• The need for legal advice to ensure the transaction achieves its intended purpose

Conclusion

While the term “gift” is commonly used, it represents just one form of a broader category of transfers without consideration under Kenyan law. The legal effect of such transactions depends less on terminology and more on intent, structure, and compliance with statutory requirements.

Careful planning and proper legal guidance are essential to ensure that property transfers are both valid and tax-efficient.

Disclaimer: This article is for general informational purposes only and does not constitute legal advice. For specific guidance, please consult a qualified legal practitioner.

 

Legitimate Expectation and Fixed-Term Contracts: A Narrow Opening or Doctrinal Tension? A Commentary on Mwangi v National Organization of Peer Education (NOPE) [2026] KEELRC 933 (KLR)

 

1. Introduction
The legal position on fixed-term contracts in Kenya has long appeared settled: such contracts terminate automatically upon expiry and do not, in themselves, give rise to claims for unfair termination. However, the decision in Mwangi v National Organization of Peer Education (NOPE) [2026] KEELRC 933 (KLR) introduces an important nuance—whether an employer’s conduct prior to expiry may create a legitimate expectation of renewal, thereby converting what appears to be a passive lapse into an active termination.

This decision raises important questions about the boundaries of employer discretion, the doctrine of legitimate expectation, and the extent to which lower courts may distinguish or develop principles alongside binding appellate authority.

2. Factual Background
The Claimant had been engaged by the Respondent under successive fixed-term contracts, the last of which was due to expire on 30 September 2022.

Shortly before the expiry date, the Respondent issued a communication indicating that the Claimant’s salary would be revised effective 1 October 2022. This communication, on its face, suggested continuity of the employment relationship beyond the contractual end date.

However, this was followed by a letter formally communicating the non-extension of the contract.

The Claimant challenged this action, arguing that:

• The Respondent’s prior communication amounted to a representation that the contract would be renewed;
• This created a legitimate expectation of continued employment; and
• The subsequent non-renewal constituted a disguised termination, undertaken without valid reason or due process.

3. The Legal Issue
The central issue before the Court was whether, in light of the Respondent’s conduct, the non-renewal of the fixed-term contract could properly be characterized as:

• A mere effluxion of time; or
• A positive act of termination attracting the protections of the Employment Act (Kenya).

4. The Court’s Determination
The Court found in favour of the Claimant, holding that the Respondent’s actions went beyond passive inaction and amounted to affirmative conduct creating a legitimate expectation of renewal.

In particular, the Court emphasized:

• The salary revision letter, which was to take effect immediately after the expiry date, as a clear indicator of intended continuity;
• The absence of any qualifying language suggesting that renewal was conditional or uncertain; and
• The inconsistency between this representation and the subsequent non-extension letter.

On this basis, the Court held that:

• The employment relationship did not simply lapse;
• The Respondent made a positive election to terminate; and
• Such termination triggered the statutory requirements of substantive justification and procedural fairness.

The failure to provide valid reasons or to follow due process rendered the termination both substantively and procedurally unfair.

5. Legitimate Expectation in Employment Context
The doctrine of legitimate expectation, more commonly associated with administrative law, has increasingly found application in employment disputes.

In this case, the Court applied the doctrine to hold that:

• Clear and unambiguous representations by an employer;
• Coupled with conduct indicating continuity;
• May create an enforceable expectation that alters the legal characterization of contract expiry.

This represents a fact-sensitive application of the doctrine, rather than a wholesale redefinition of fixed-term contract principles.

6. Tension with Court of Appeal Jurisprudence

While the decision is notable, it must be read alongside binding Court of Appeal authority.

In Registered Trustees of the Presbyterian Church of East Africa & another v Ruth Gathoni Ngotho-Kariuki [2017] KECA 194 (KLR), the Court of Appeal held that:

• Fixed-term contracts terminate automatically upon expiry; and
• Such termination does not constitute unfair dismissal.

Similarly, in Trocaire v Catherine Wambui Karuno [2018] KECA 769 (KLR), the Court of Appeal clarified that:

• Prior indications or negotiations regarding renewal do not, without more, create a legitimate expectation.

These decisions establish a clear appellate position: the default rule is that expiry is not termination, and expectations of renewal are generally insufficient to displace that rule.

7. Reconciling the Authorities

The apparent divergence can be reconciled on a narrow, fact-specific basis:

• The Court of Appeal decisions address general expectations or negotiations around renewal;
• Mwangi involves a specific, concrete representation—a salary revision effective after the expiry date.

Thus, the ELRC decision may be understood as applying the doctrine of legitimate expectation in exceptional circumstances, where the employer’s conduct crosses the threshold from mere indication to definitive assurance.

However, it does not purport to overturn or depart from binding precedent.

8. Practical Implications for Employers

This decision serves as a cautionary reminder to employers managing fixed-term contracts:

• Avoid premature or ambiguous communications suggesting renewal before a formal decision is made;
• Ensure that any discussions or proposals are clearly expressed as conditional or subject to approval;
• Align internal communications with formal contractual positions to avoid inconsistency;
• Recognize that conduct, not just formal documentation, may influence legal outcomes.

9. Conclusion
Mwangi v National Organization of Peer Education (NOPE) [2026] KEELRC 933 (KLR) highlights a narrow but significant qualification to the general rule on fixed-term contracts. While expiry by effluxion of time remains the default legal position, an employer’s clear and unequivocal conduct may, in limited circumstances, create a legitimate expectation sufficient to transform non-renewal into an unfair termination.

Nonetheless, the decision must be read cautiously and in harmony with established Court of Appeal jurisprudence. It is best understood not as a shift in principle, but as a fact-driven exception grounded in the specific representations made by the employer.

Disclaimer
This article is for general informational purposes only and does not constitute legal advice. It is not intended to create, and receipt of it does not establish, an advocate-client relationship. Readers should not act upon the information contained herein without seeking specific legal advice based on their individual circumstances. While every effort has been made to ensure accuracy, no responsibility is accepted for any errors or omissions or for any consequences arising from reliance on this publication.