Wamae & Allen Advocates

1

GENERAL PRINCIPLES

Forums For Adjudicating Employment Disputes

There are various forms of adjudicating disputes in Kenya. They can be classified into two: court based and out of court employment adjudicating forums.

    1. Court based Adjudicating Forums.
      • The Employment and Labour Relations Court is established under Article 162 of the Constitution of Kenya and the Employment and Labour Relations Court Act. It is a specialized court with the status of the High Court that has the power to hear employment disputes and appeals from the Magistrates Court. The Magistrates Court can hear employment disputes where the monthly gross pay does not exceed Kshs. 80,000.00.
      • Parties aggrieved by the decision of this Employment and Labour Relations Court are at liberty to appeal to the Court of Appeal and the Supreme Court.
    2. Out of Court Adjudicating Forums.
        1. Alternative Dispute Resolution Mechanisms
          • Out of Court adjudicating forums are the alternative dispute resolution mechanisms such as conciliation, mediation and traditional dispute mechanisms.
          • The Constitution of Kenya under Article 159 calls upon courts to promote alternative forms of dispute resolutions. The Employment and Labour Relations Court Act states that the Employment Court may adopt and implement alternative dispute resolution mechanisms.
        2. The Cabinet Secretary’s in Charge of Labour Appointed Conciliator;
          • Under the Labour Relations Act, a trade dispute may be reported to the Cabinet Secretary by or on behalf of a trade union, an employer or an employee. Under the Labour Relations Act, the Cabinet Secretary appoints a Conciliator or Labour Officer to attempt to solve a dispute failing which, the matter is referred to the Employment and Labour Relations Court.

The Main Sources Of Employment Law

The main sources of law for employment and labour relation matters in Kenya include statute and the employment contracts. Some of the statutes governing employment matters include:

    1. The Constitution of Kenya, 2010.
    2. Employment Act, 2007.
    3. Employment and Labour Relations Court Act, 2011.
    4. Employment and Labour Relations (Procedure) Rules, 2016.
    5. Labour Institutions Act, 2007.
    6. Labour Relations Act, 2007.
    7. Occupational Safety and Health Act, 2007.
    8. Work Injuries Benefits Act, 2007.

The above Acts are easily available on the Kenya Law Reports

In addition to the statutes listed above, Kenya has ratified various international instruments which form part of the Kenyan Law.


National Law And Employees Working For Foreign Companies

All the aforementioned statutes and international instruments apply to all employees, employers, trade unions and employers’ organizations in Kenya subject to conditions stated in the various statutes. All employees working in foreign companies and their employers are subject to the national law.


National Law And Employees Of National Companies Working In Another Jurisdiction

Employees of national companies working in another jurisdiction are governed by the law indicated in their employment contract.

Note: The Law regulating employment of foreign employees has been further discussed in detail under the item Hiring Non-Nationals.


Data privacy

The Constitution of Kenya under Article 31 secures the right to privacy of every Kenyan. It includes the right not to have information relating to the employee’s family, gender, financial information, health information, sensitive information or any private affairs or their private conversations revealed.

The Data Protection Act, 2019 further protects the processing of personal information entered in a record or made available to an employer. The Act provides for principles and obligations of personal data protection that every Data Collector must follow. This includes employers.

2

HIRING THE EMPLOYEE

Legal Requirements As To The Form Of Agreement

Every Employment contract has its unique form. This depends on the nature of activities and the relationship between the employer and employee. An employer may seek to employ under various categories and arrangements, whether regular, fixed term, seasonal, project or casual terms.

The Employment Act recognizes oral and written contracts. However, a contract of service for a period of 3 months or more must be in writing and must state the particulars of the employment and lastly state that the contract is consented to by the employee.

The employee signifies acceptance of the written contract by either signing his name or affixing of their thumb print. The same must be witnessed by one person who must not be the employer. The law requires the contract to be explained to an employee who is illiterate or cannot understand the language of the contract.

The fundamental legal requirements for the existence of a contract of service include existence of an oral or written contract of service; provision of a service to real or legal person and provision of wages or salary for the services rendered.


Mandatory Requirements
  • Trial Period

    • The Employment Act provides for a probationary period of not more than six months. The same can only be extended for a further period not exceeding six months. The Employment Act requires probation contracts to be in writing.

  • Hours Of Work

    • The Employment Act provides that an employer shall regulate the working hours of each employee. An employee is entitled to at least one rest day for every seven-day period. The normal working hours under Regulation 5 of the Regulation of Wages (General) Order consist of 52 hours spread over 6 days of the week.

  • Special Rules For Part-time Work

    • For part time employees, the contract must specify that the same is a part-time contract and thereafter provide for the number of working hours and the remuneration payable.

  • Earnings

    • Under Article 41 of Constitution of Kenya 2010, every worker has the right to fair remuneration. There is no requirement that wages or salaries are to be paid at any particular intervals. The same can be paid daily, periodically at intervals of not less than one month; or paid at intervals of exceeding one month.

    The Employment Act protects the wages of the employee by recognizing the same as a superior right owed to the employee. Wages must be paid in the Kenyan currency to the employee or a person appointed by the employee.

    Wages must be paid to an employee on a working day, during working hours, at or near to the place of employment or at a place agreed in the contract. The payment should not be done at a place where intoxicating liquor is sold or readily available for supply.

    Minimum Wages - Pursuant to the Regulation of Wages (General) Order, no person shall be employed at a basic minimum wage less favorable than what is applicable to them under the schedules.

    The Regulation of Wages (General) (Amendment) Order, 2018 sets out the basic minimum monthly wages exclusive of housing allowance and the basic minimum daily and hourly rates inclusive of housing allowance.

    As per the amendment of the Order, the basic minimum monthly salary for a general laborer is Kshs. 13,572.90 (USD 123.56) for persons employed within Cities and Kshs. 12,522.70 (USD 114.00) for persons employed in municipalities. It is however important that we point out that an upper scale applies to specific professionals under the Order.

  • Equal pay for equal work

    • It is a fundamental right for every employee to receive equal pay for the same work. The Employment Act provides that an employer shall pay his employees equal remuneration for work of equal value. An employer who remunerates employees differently in respect of work of equal value risks perpetuating discrimination in the work place.

  • Holidays/Rest Periods

    • The Employment Act provides for various types of leave such as annual leave, sick leave, maternity, paternity leave and compassionate leave. The Act provides that for every seven days of work, an employee is entitled to one rest day.

    An employee is entitled to not less than 21 working days leave with full pay after every twelve consecutive months of service.

    Annual leave is voluntary and unlike compulsory leave the same cannot be imposed on an employee.

    Annual leave can be apportioned if the employee is terminated before completion of leave earning year. The Employment Act provides that where an employee is terminated after the completion of two or more consecutive months of service during any 12 months’ leave -earning period, the employee is entitled to not less than one and three -quarters days of leave with full pay, in respect of each completed month of service in that period, to be taken consecutively. An employee’s annual leave is protected and can only be converted into cash.

  • Minimum/Maximum Age

    • A child in Kenya as a person below the age of 18 years. tThe Employment Act prohibits the employment of a child below 13 years. However, it allows employment of children from the ages of 13 to 16 years for light work and defines those of 16 to 18 as employable.

    However, the Act does not define light work and does not provide protection for children in such employment, but leaves it at the discretion of the Cabinet Secretary in charge of Labour.

    The Employment Act entitles a person that considers any child to be employed in any activity which constitutes child labour to file a complaint of such an incident to the labour officer or the police.

  • Illness/Disability

    • Under the Employment Act, after two consecutive months of service, an employee is entitled to sick leave of not less than seven days with full pay and thereafter to sick leave of seven days with half pay in each period of the twelve consecutive months of service.

    Under the Regulation of Wages (General) Order, an employee is entitled to a maximum of thirty days of sick leave and thereafter to a maximum of fifteen days sick leave with half pay in each period of twelve months of continuous service. An employee shall however not be entitled to such payment unless they produce to the employer a medical certificate of incapacity covering the period of sick leave claimed.

    However, in line with the Employment Act , if the contract of employment or a collective bargaining agreement provides for better terms on sick leave then the same ought to apply.

    The Persons with Disabilities Act, 2003, provides that no person shall deny access to, or discriminate against a person with a disability in suitable employment.

  • Location Of Work/Mobility

    • The Employment Act provides that an employment contract must state the place for work. An employer may offer transport allowance to the employee.

  • Pension Plans

    • Under the Retirement Benefits Act No. 3 of 1997, an employer may, with the approval of his employees, make statutory contributions in respect of such employees into a retirement benefits scheme.

    Pursuant to the Retirement Benefits Act, upon the death of a member of a scheme, the benefits payable from the scheme shall not form part of the estate of the member for the purpose of administration and shall be paid out by the trustees in accordance with the scheme rules.

    The other pension being National Social Security Fund (NSSF) has been discussed below

  • Parental Rights (Pregnancy/ Maternity/ Paternity/ Adoption)

    • Under the Employment Act a female employee is entitled to three months maternity leave with full pay. However, the employee must give written notice of not less than seven (7) days to the employer.

    If for whatever reason, the maternity leave is extended with the consent of the employer the three months maternity leave shall be deemed to expire on the last day of such extended leave.

    A male employee is entitled to two weeks paternity leave with full pay.

    A female employee’s pregnancy does not constitute fair reasons for dismissal or for the imposition of a disciplinary penalty.

    The Employment (Amendment Act),2021 introduced pre-adoptive leave, under section 29A of the Employment Act, 2007.Pursuant to the amendment, an applicant who is an employee is entitled to one month’s pre-adoptive leave with full pay from the date of the placement of the child

  • Compulsory Terms

    • A written contract of service must state particulars of employment which may be given in instalments and shall be given not later than two months after the beginning of the employment. The written contract of service must contain legally required information.

  • Non-Compulsory Terms

    • The Employment Act only provides for the minimum terms of employment. Just like any contract the parties may enter into contracts that offer better terms.


Types Of Agreement
    1. Fixed Term Contracts

      2. The Employment Act provides for fixed term contracts. A fixed term contract of more than 3 months has to be in writing and specify the date on which the contract is to lapse.

    2. Casual /Seasonal Employment Agreements

      3. A casual employee is to be paid at the end of each day and should not be engaged for a period longer than twenty-four hours at a time. The contract may be made orally or in writing.

      However, where a casual employee works for a period of days amounting to not less than one month, the contract of service shall be deemed to be one where wages are paid monthly and a termination notice has to be given in writing.

    3. Foreign Contracts of Service

      4. Foreign contacts of service apply where the employment of a person is intended to be outside Kenya. A foreign contract of service has to be in the prescribed form and has to be attested by a labour officer. The labour officer may require the employer to give security by bond in the prescribed Form 5 under the Employment (Foreign Contracts of Service) Rules , with one or more sureties resident in Kenya for the due performance of the contract in such sums as the labour officer considers reasonable.


Secrecy/Confidentiality

An employer may include a confidentiality clause in the employment contract restraining the employee from sharing and disclosing commercial secrets without authorization.


Ownership of Inventions/Other Intellectual Property (IP) Rights

In Kenya, the laws that protect intellectual property are:

    1. The Trade Marks Act (Chapter 506, Laws of Kenya) which regulates, that all registered trademarks by the employer belongs to the employer and therefore any use of the same by the employee outside the employer’s business amounts to infringement.
    2. The Copyright Act - The copyright Act protects the original expression of an idea in tangible form. However, it offers no protection for concepts or ideas that have not been so expressed. Where the author of the work makes the work in the course of his employment, the Copyright Act adopts an employer friendly position and provides that the copyright shall, in that case, be deemed to be transferred to the employer upon the creation of the work.

      3. This automatic transfer of copyright can be excluded or limited by contractual agreement between the employer and the employee.

    3. The Industrial Property Act – Which regulates the employer’s right to a patent for any invention made by their employees in execution of their employment contracts.

Pre-Employment Considerations

An employer may, before hiring, consider the skills of the proposed employee, educational background and work experience in relation to the position to be filled.


Hiring Non-Nationals

In the event an employer intends to hire foreign employees; the employees will be required to have work permits. Issuance of work permits is governed by the Kenya Citizenship and Immigration Act No. 12 of 2011 (the “Immigration Act”) and the Kenya Citizenship and Immigration Regulations, 2012 (the “Immigration Regulations”).

The various types of permits under the Schedule of the Act depend on the engagement the applicant intends to do in the Country.


Hiring Specified Categories Of Individuals

The Constitution of Kenya, under Article 27 and the Employment Act provide for non-discrimination in all aspects of employment.... The constitution however allows affirmative action policies and programmes aimed at redressing any disadvantaged groups of persons in Kenya. Recognized refugees and members of their families are also subject to all laws in Kenya and are therefore subject to employment pursuant to the Refugee Act, No. 13 of 2006.

That notwithstanding, employers are not prohibited from selecting potential employees with the appropriate skills and attitudes in exercise of their managerial discretion.


Outsourcing And/Or Sub-Contracting/Temporary Agency Work

Independent Contracts for Service are not subject to the provisions of the Employment Act. An independent contractor is not subject to the usual employment matters such as statutory deductions, income tax, annual leave, sick leave or overtime pay.

3

MAINTAINING THE EMPLOYEE RELATIONSHIP

Changes To The Contract

The employer has to obtain consent from the employee before changing the terms of employment.

A contract of service may allow for proposed changes of specific terms of employment through ‘flexibility clauses’ or ‘variation terms”.


Change In Ownership Of The Business

Kenya does not have a law that specifically protects employment rights in the event a business is transferred from one employer to another as a going concern.

However, under section 3 the Transfer of Businesses Act, Cap 500 , the transferee of a business shall, notwithstanding any agreement to the contrary, become liable for all the liabilities incurred in the business by the transferor, unless due notice has been given. The liabilities therefore can be construed to include any employment contracts to employees.

In most instances, business contracts include sections dealing with what happens if there is a change in the business. Two contract principles that might affect the need to make a change in the contract are novation and assignment.

In practice, on a transfer of a business, there are two options available to deal with employees:

    1. Termination of their employment and and thereafter the transferee (new employer) offers fresh employment; or
    2. The transferor (old employer), the new employer and each employee enter into a tripartite agreement.

Affected employees in a transfer must give their individual consent or, where unionized, with the representation of their union.


Social Security Contributions

The National Social Security Fund (NSSF) is a statutory savings scheme to provide for retirement. Both employers and employees contribute up to Kshs. 200 per month which is payable by the 15th day of every month.

An individual earning more than Kshs. 1,000 per month must make a monthly contribution to the National Hospital Insurance Fund (NHIF) which will entitle them to a reduction in certain hospital charges. The calculation is based on the salary with a minimum contribution of Kshs. 30 and a maximum of Ksh.320. Kenya is a member of the International Social Security Association.


Accidents At Work

In Kenya, employees’ safety and accidents at the workplace are governed by two acts namely:

    1. The Occupational Safety and Health Act (OSHA), 2007 which provides for the health, safety and welfare of persons employed and all persons lawfully present at workplaces and;
    2. The Work Injury Benefits Act, 2007 which determines the remuneration available to an employee who gets injured in the workplace or during the course of carrying out their duties. Work injuries under this act are divided into three categories: (i) permanent incapacity (ii) temporary incapacity and (iii) fatal injury leading to death of a worker. The type of work injury will determine the form of relief/compensation available to the aggrieved party.

Following the COVID-19 pandemic, the Director of Occupational Safety and Health Services issued the Occupational Safety And Health Postcovid-19 Return To Work Advisory which provides the basic requirements for all workplaces in Kenya to ensure that all workers returning to work are safe and healthy and that COVID-19 is mitigated from spreading in workplaces. The advisory provides among other things that any employee with confirmed or suspected COVID-19 shall inform the employer and the employer shall require such employees to report to the identified Ministry of Health institutions for care, quarantine or self-quarantine as may be appropriate.


Discipline And Grievance

The Employment Act, 2007 addresses how discipline and grievance should be approached by the employer.

A statement in the contract of service should specify the disciplinary rules applicable to the employee or refer the employee to the provisions of a document for example an office manual which specifies the rules.


Harassment/Discrimination/Equal pay
    1. Harassment.

      2. The Employment Act, defines and outlaws sexual harassment in the workplace.

      An employer who employs twenty or more employees shall, after consulting with the employees or their representatives if any, issue a policy statement on sexual harassment that complies with Section 6 of the Act.

    2. Discrimination.

      3. The Employment Act outlaws discrimination of any kind against any employee. The grounds under which discrimination is prohibited include race, colour, sex, language, religion, political or other opinion, nationality, ethnic or social origin, disability, pregnancy, mental or HIV status.

    3. Equal Pay.

      4. An employee is required to pay his employees equal remuneration for work of equal value. Failure to observe this constitutes unfair discrimination. In order to prove pay discrimination, an employee has to demonstrate that two or more persons doing the same work were being paid differently without justification for the difference.


Compulsory Training Obligations

The Occupational and Safety Health Act, provides that no person shall be employed at a machine or in any process liable to cause ill health or bodily injury, unless he has been fully instructed as to the dangers likely to arise. In other fields where there is no imminent risk involved while the employee undertakes their duties, the general practice is that the employer trains the employee during recruitment to ensure efficiency.


Offsetting Earnings

An employer is entitled to make deductions from an employee’s salary provided that the employee takes home not less than one-third of his salary. What is not recovered from the employee’s salary as a result of the one-third rule may be recovered from the employee’s future salary, or if the employee is leaving employment, through court proceedings.

The mandatory statutory deductions of an employee’s salary are Pay as You Earn (PAYE) which is tax, National Hospital Insurance Fund (NHIF) contribution which is compulsory medical insurance and National Social Security Fund (NSSF) contribution which is a retirement fund for employees.

Other permitted deductions are regulated by law, e.g. loans granted by the employer or shortage of money arising from the employee’s negligence or dishonesty where the employee is entrusted with receipt, custody and payment of money.


Payments For Maternity And Disability Leave

The Employment Act provides that a female employee shall be entitled to three months maternity leave with full pay. There is no statutory provision on disability leave.


Compulsory Insurance

The National Hospital Insurance Fund Act (NHIF Act) prescribes mandatory membership for everyone who is ordinarily resident in Kenya, is over 18 years old and has a monthly income of more than KES 1,000.00 whether derived from employment or self-employment.

If as a result of a late or delayed payment by an employer, an employee is unable to claim or obtain the NHIF benefits, the employer shall be liable to the employee to the extent of the denied benefit and any other injury or inconvenience arising therefrom.


Absence For Military Or Public Service Duties

Military leave is not applicable in the Kenyan Jurisdiction. One cannot apply for paid or unpaid leave to serve in the military or any other public service for a given period and thereafter return to work. Military personnel are not allowed to serve in any other form of employment.


Works Councils or Trade Unions

The Labour Relations Act is the primary law on Trade Unions. The right to join and form a Trade Union is enshrined in the Constitution under Article 41. The Constitution gives every worker the right to form, join or participate in the activities and programmes of a Trade Union. The right is not absolute and may be limited so long as the limitation is reasonable and justifiable in an open and democratic society


Employees’ Right To Strike

The Labour Relations Act and the Kenyan Constitution under Article 41 acknowledge the right to strike as being fundamental to effective collective bargaining. Strike actions undertaken by unionised workers without union’s leadership authorisation, support or approval are outlawed in Kenya.

An employee who refuses to turn up for work or for whatever reason engages in wildcat strike action is culpable for an act of desertion or absenteeism.

Prior to engaging in a strike action, employees are required to follow procedures set out in the Labour Relations Act as failure to do so may result in the strike being declared unprotected. Participation in unprotected strikes amounts to misconduct and the employee may be dismissed.

The Labour Relations Act prohibits strikes in essential. There is a pending bill in Parliament that seeks to allow employees in essential services to strike only for five days.


Employees On Strike

The Labour Relations Act provides that an employer is not obliged to remunerate an employee for services not rendered during a protected strike. The Act also provides that an employer may not dismiss or take any disciplinary action against an employee for participating in the protected strike.


Employers’ Responsibility For Actions Of Their Employees

N/A

4

FIRING THE EMPLOYEE

Procedures For Terminating the Agreement

The procedure for terminating an employment agreement differs depending on the grounds of such termination.


Instant Dismissal

The Employment Act allows termination of an employee’s employment without notice or with less notice than that prescribed in the employment contract or statute, also known as summary dismissal. The grounds justifying summary dismissal are regulated by law, for example; .if an employee without leave or other lawful cause absents himself from the place of work or if the employee is arrested for a cognizable offence punishable by imprisonment and is not within 14 days either released on bail, bond or otherwise set at liberty.

    1. (i) The employee’s right to be heard during summary dismissal is unassailable and absolute as per the Employment Act. Gathering from most of the judicial decisions in Kenya, the following can be said to be the proper procedure to summarily dismiss an employee:
    2. The employer must carry out a full investigation regarding the alleged behaviour or conduct.
    3. The employee ought to be informed of the exact nature of the allegations of gross misconduct;
    4. The employee is granted an opportunity to be heard in a properly constituted disciplinary machinery as per the employment policies in the workplace;
    5. The employee must be given an option of having another employee or a trade union official to be present during the hearing; and
    6. If the outcome of the hearing is a decision to summarily dismiss an employee, the employee should be notified of the dismissal in writing citing reasons for the dismissal.

The Employment Act requires employers to pay employees who are summarily dismissed all monies, allowances and benefits due to them up to the date of dismissal.


Employee's Resignation

Employee’s resignation is a unilateral act where the employee basically issues a notice of termination of employment to the Employer.

An employee may withdraw a notice of resignation, where special circumstances exist and such withdrawal must be communicated to the employer, as soon as possible.

Kenyan Courts have held that an employer ceases to have jurisdiction to discipline an employee when they tender their resignation before a verdict on the disciplinary process.


Termination On Notice

The Employment Act provides that where the contract is to pay wages daily, the contract is terminable by either party at the close of any day without any notice.

Where the contract is to pay wages periodically at intervals of less than a month, the contract is terminable by either party at the end of the period next following the giving of a notice in writing.

Where the contract is to pay wages or salary periodically at intervals of or exceeding one month, the contract is terminable by either party at the end of the period of twenty-eight days next following the giving of a notice in writing.

If an employee who receives a notice of termination of employment is not able to understand the notice, the employer shall ensure that the notice is explained orally in a language the employee understands.

The parties to a contract may terminate the employment without notice upon payment to the other party. The same is also known as payment in lieu of notice.

An employee whose services have been terminated on notice is entitled to service pay for every year worked, the terms which shall be fixed. This only applies in certain cases regulated by law.


Termination By Reason Of The Employee's Age

Terminating the employee’s employment on account of age amounts to discrimination and the employee would be entitled to damages for discrimination.

Retirement of the employee does not amount to discrimination.

Kenyan courts have held that in the absence of a general constitutional or statutory mandatory retirement age in public or private sectors or any other employment, the age of mandatory retirement is a term of the contract of employment to be agreed between the parties or varied by the employer in consultation with the employee.


Automatic Termination In Cases Of Force Majeure

For a party to rely on force majeure, it must be expressly stated in the employment contract. Under the law of contract, a contract can be terminated by frustration due to no fault of either party. This includes employment contracts.


Collective Dismissals

The Employment Act requires the employer to prove the reasons for the decision to undertake redundancy. The Act also sets out a 7-step procedure that is couched in mandatory terms.


Termination By Parties’ Agreement

The Employment Act allows termination of an employment by parties’ agreement. Parties are at liberty to enter into a contract and agree on various terms and conditions therein. Such agreement must be in line with the statutory provisions


Directors Or Other Senior Officers

Directors are appointed by a resolution of the Shareholders of a Company under Companies Act. Ordinarily, a director is not an employee of a company but acts as an agent of the Company. A director’s removal is also done by way of a resolution as per the Companies Act, No. 17 of 2015. However, nothing precludes a Company from entering into an employment relationship with a director or other senior officers


Special Rules For Categories Of Employee

In determining whether a director is an employee, Courts will apply multiple tests such as the control test to determine whether the relationship between parties amounts to a contract of service or contract for service.

The Employment Act applies to all employees under a contract for service.

Under the Employment Act, the minister may by order exclude from the application of all or part of this Act categories of employed persons whose terms and conditions of employment are governed by special arrangements, provided those arrangements afford better protection than the Act.

Special rules are applicable to certain fields of employment for example disciplined forces like the Kenya Defence Forces, Kenya Navy or Kenya Police.


Specific Rules For Companies in Financial Difficulties

The Company as an employer, even when experiencing financial difficulties, is under an obligation to pay the entire amount of the wages earned by or payable to an employee in respect of work done by the employee in pursuance of a contract of service.


Restricting Future Activities

An employer may enter into an agreement with the employees placing limitations on the employee’s freedom of employment on exit in order to protect unique trade secrets. Contracts in restraint of trade are legal in Kenya and guided by the Restraint of Trade Act.

However, the Act gives powers to the High Court to declare the provisions void if it is satisfied that the restraint is not reasonable either in the interest of the parties or the same is injurious to public interests.


Whistleblower Laws

The Law on whistle-blowers in Kenya is still developing. The Anti-corruption and Economic Crimes Act provides for protection of assistants, informers, witnesses and investigators. The Witness Protection Act also provides for protection of witnesses in criminal cases and other proceedings.

There is a Whistle- blower protection bill which is aimed at providing for the procedure for the disclosure of information relating to improper conduct in the public and private sectors and to provide for the protection of persons who make such disclosure against victimization. The Bill has not been passed into law yet.

Employers may have internal whistle-blower policies with a view to foster a culture of openness, accountability and integrity.


Special Rules For Garden Leave

The Employment Act does not have any provision on garden leave. This does not bar parties from providing for garden leave in an employment contract.


Severance Payments

The amount of redundancy payment is fixed in law. The Employment Act provides that the employer shall pay to an employee declared redundant severance pay at the rate of not less than fifteen days’ pay for each completed year of service.

In addition to the Severance pay, an employer must settle the following statutory or contractual obligations:

    1. If leave is due to an employee declared redundant, pay the outstanding leave;
    2. Pay any outstanding contractual entitlement e.g. unpaid salary only subject to contractual liabilities properly incurred by the employee;
    3. Pay the employee declared redundant not less than one month’s wages in lieu of notice.

Special Tax Provisions And Severance Payments

There are no special tax provisions with regard to severance payments.


Allowances Payable To Employees After Termination

The Employment Act stipulates that an employee shall be entitled to the following terminal benefits upon termination of their employment:

    1. Any remuneration for work done by an employee before termination;
    2. Any annual leave pay due to an employee;
    3. Any notice pay due to an employee;
    4. Any severance pay due if an employee qualifies for this; and
    5. A certificate of service – Section 51 of the Employment Act

Time Limits For Claims Following Termination

The No legal proceedings arising out of the Act or a contract of service shall lie or be instituted unless it is commenced within three years after the act, neglect or default complained or in the case of continuing injury or damage within twelve months after the cessation thereof.

5

GENERAL

Specific Matters Which Are Important Or Unique To This Jurisdiction

N/A



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Contact a Contributing Author:
Miss Virginiah Nduta
Wamae & Allen Advocates.
Kenya


Miss Leah Muhia
Wamae & Allen Advocates.
Kenya


Disclaimer:

© 2021, Wamae & Allen Advocates.  All rights reserved by Wamae & Allen Advocates as authors and the owners of the copyright in this chapter. Wamae & Allen Advocates have granted to Multilaw non-exclusive worldwide license to use and include this chapter in this guide and to sublicense Lexis Nexis, a division of RELX Inc. and its affiliates certain rights to use and distribute this Guide.

The information in the How to Hire and Fire Guide provides a general overview at the time of publication and is not intended to be a comprehensive review of all legal developments nor should it be taken as opinion or legal advice on the matters covered. It is for general information purposes only and readers should take legal advice from a Multilaw member firm.

Publication Date: June 2021