When “Probation” Doesn’t Apply: Lessons from Morintat v. CSI Energy Group Limited

Case Reference: Morintat v. CSI Energy Group Limited, Cause E081 of 2024 [2026] KEELRC 248 (KLR)

In a significant ruling delivered on January 30, 2026, the Employment and Labour Relations Court at Nakuru handed down a judgment that serves as a powerful reminder: not all employment contracts are subject to probationary periods, and employers cannot retroactively impose probation clauses where they don’t apply.

The case of Jane Tipitip Morintat versus CSI Energy Group Limited offers crucial insights for both employers and employees about the importance of clear contract terms, the limits of employee handbooks, and what constitutes fair termination under Kenyan employment law.

The Facts: A Fixed-Term Contract Cut Short

Jane Morintat was employed by CSI Energy Group Limited as a Human Resource Manager on March 1, 2024. Her contract was clear and specific:

1. Position: Human Resource Manager
2. Contract Duration: 21 months (March 1, 2024 to November 30, 2025)
3. Monthly Salary: Kshs. 576,000
4. Nature of Work:Oversight of daily HR operations at a specific project site
5. Recruitment: She was headhunted for her 15+ years of experience in world bank funded projects and wind energy

After working for only four months, CSI Energy terminated her employment on June 30, 2024, claiming she was still within a six-month probationary period governed by the company’s Employee Handbook.

Ms. Morintat challenged this termination, arguing that:
1. Her contract was for a specific task and fixed duration with no mention of probation
2. The termination was procedurally and substantively unfair
3. She was entitled to compensation

The Employer’s Shifting Arguments

What makes this case particularly instructive is how CSI Energy’s justification for termination evolved over time:

Stage 1: Mutual Separation (May 29, 2024)

CSI Energy initially issued a termination letter claiming that meetings had been held where both parties agreed to “mutual separation” effective June 30, 2024.

Ms. Morintat immediately disputed this, stating in her June 18, 2024 response that no such meetings occurred and there was no agreement to separate.

Stage 2: Disciplinary Process (June 21-22, 2024)

After Ms. Morintat rejected the mutual separation narrative, CSI Energy pivoted to a disciplinary approach, issuing two “show cause” letters with serious allegations including:
– Making discriminatory comments against Indian colleagues
– Alleging that colleagues sabotaged a job interview
– Sharing confidential company information with third parties
– Intimidating a colleague

Stage 3: Back to Probation (June 27, 2024)

In a surprising turn, CSI Energy abandoned the disciplinary process entirely and issued a third letter stating that:
– The letters to show cause were void
– The intended disciplinary process was discontinued
– The original May 29 letter was actually a “notice of termination”
– The termination was justified because Ms. Morintat was on probation under the Employee Handbook

The Court’s Analysis: Contract Specificity Trumps General Policies

Justice James Rika carefully examined whether the probation clause in the Employee Handbook applied to Ms. Morintat’s employment. His findings were decisive:

1. The Employee Handbook Didn’t Apply to Fixed-Term Contracts

Clause 3.0 of CSI Energy’s Employee Handbook (dated March 1, 2022) explicitly stated:

> “These conditions of employment shall apply to all full time Employees of the company. They do not apply to temporary or **contractual Employees**…”

Since Ms. Morintat was hired on a fixed-term contract for a specific project, the handbook—including its probation clause—did not govern her employment.

2. The Contract Itself Made No Mention of Probation

The court noted that Ms. Morintat’s employment contract specified:
– A specific task (HR management for a particular project)
– A precise duration (21 months)
– Clear start and end dates
– No mention whatsoever of a probationary period

Even CSI Energy’s own termination letter of May 29, 2024 acknowledged that “your employment contract mentioned above, is of a specific task nature, where the company business and operations are of project-based nature.”

3. You Can’t Impose Probation Retroactively

The court firmly rejected CSI Energy’s attempt to retroactively subject Ms. Morintat to probation through the Employee Handbook. When an employment contract is specific about duration and makes no mention of probation, employers cannot later invoke general company policies to justify termination.

Procedural Fairness: A Masterclass in What Not to Do

Beyond the probation issue, the court found that CSI Energy’s termination process was “glaringly unfair” in procedure. The employer:

1. Attempted to impose mutual separation that never occurred
2. Shifted to disciplinary charges when that failed
3. Abandoned the disciplinary process without resolution
4. Reverted to a probation argument as a last resort
5. Denied Ms. Morintat her right to be heard under Sections 41 and 45 of the Employment Act

Justice Rika held that the termination violated the minimum standards of fairness under Sections 41, 43, 45, and 47 of the Employment Act.

✗ Salary in lieu of notice

Since CSI Energy had provided notice (even if the termination itself was unfair), additional notice pay was not warranted.

✗ Compensation beyond 12 months’ salary

The Employment Act limits compensation for unfair termination to a maximum of 12 months’ salary. The court reduced the claim from 13 months to 8 months based on the circumstances.

The Arithmetic Error: A Same-Day Correction

In an unusual procedural twist, Justice Rika made an arithmetic error in the original judgment, stating that 8 months’ salary at Kshs. 576,000 per month equaled Kshs. 2,304,000 (which is actually only 4 months).

Mr. Mokua, counsel for Ms Morintat, immediately filed an application for review under certificate of urgency on the same day the judgment was delivered.

The court quickly corrected the error under Rules 74(1)(b) and 75 of the E&LRC (Procedure) Rules, 2024, issuing a ruling that same afternoon confirming the correct amount:

8 months × Kshs. 576,000 = Kshs. 4,608,000

This swift correction demonstrates the court’s commitment to accuracy and the effectiveness of the new procedural rules allowing immediate review for clear mathematical errors.

Key Takeaways for Employees

1. Read Your Contract Carefully
If your employment contract specifies a fixed term with no mention of probation, you are likely not subject to probationary provisions in the Employee Handbook.

2. Understand What Applies to You
General employee handbooks often contain exclusion clauses. Check whether the handbook explicitly applies to your category of employment (permanent, temporary, contractual, etc.).

3. Document Everything
Ms. Morintat’s immediate written response disputing the “mutual separation” claim was crucial to her case. Always respond to termination letters in writing, clearly stating your position.

4. Don’t Accept Unfair Processes
When CSI Energy shifted between different justifications for termination, it demonstrated bad faith. Employees have the right to fair and consistent procedures.

5. Seek Legal Advice Early
Ms. Morintat engaged legal representation and successfully challenged an unfair termination. Early legal intervention can make a significant difference.

6. Act Quickly When You Spot Errors
The same-day application to correct the arithmetic error shows the importance of carefully reviewing court judgments and acting immediately when errors are apparent.

Key Takeaways for Employers

1. Draft Contracts with Precision
If you intend for an employee to undergo probation, state this explicitly in the individual employment contract. Don’t rely solely on general handbook provisions.

2. Ensure Handbook Consistency
If your Employee Handbook excludes certain categories of employees (like contractual staff), ensure your HR team understands these limitations and doesn’t apply handbook provisions where they don’t belong.

3. Be Consistent in Your Position
Shifting between “mutual separation,” disciplinary action, and probation-based termination appears evasive and undermines your credibility with the court.

4. Follow Due Process
Even if you believe termination is justified, following proper procedures under the Employment Act is non-negotiable. Shortcuts will cost you in court.

5. Consider the Financial Impact
CSI Energy now owes Ms. Morintat Kshs. 4,608,000 plus costs and interest— probably far more than they would have paid had they allowed her to complete her contract or negotiated a fair exit, given that she is not working for them anymore.

6. If You Start Disciplinary Proceedings, Finish Them
Starting a disciplinary process and then abandoning it to pursue a different justification for termination creates the appearance of an unfair process.

The Broader Implications: What This Case Means for Employment Law in Kenya

1. The Death of Anticipatory Salary Claims

This case reinforces the Supreme Court’s position in Ngokonyo v. Telkom Kenya Limited that anticipatory salary claims—once a common feature of employment disputes—are no longer viable under Kenyan law. Employees cannot expect to be paid for the full duration of unexpired contracts.