Kenya HR Information

Updated on: 2025/08/05 15:25 (UTC)

Overview

Kenya’s constitution guarantees fundamental individual rights and freedoms including the right to fair remuneration, reasonable working conditions, participation in a trade union or employers’ organization, participation in a strike or lockout and collective bargaining. The Employment Act, the Labor Relations Act, the Labor Institutions Act and the Occupational Safety and Health Act are four of Kenya’s main labor laws.

Kenya has ratified all fundamental conventions of the International Labor Organization except those concerning the Freedom of Association and the Protection of the Right to Organize.

Hiring

Employment Contracts

Employment contracts may be for a fixed period of time or of unlimited duration. At the end of a contract for a fixed period of time, the employment relationship is automatically terminated. The Employment Act allows for such a contract to be extended for a period of up to one month if the work requires the employee to travel. Temporary employees and employees operating pursuant to a fixed-term contract enjoy the same terms of employment as permanent employees except for benefits (such as pensions) that are specific to the permanent position.

The Employment Act requires that contracts for a continuous period of three months or more and contracts for a task where labor could last for three months or more be in writing. A written contract should be provided to the employee within seven days of his or her start date and should include the following information:

• the length of notice the employee must give and is entitled to receive to terminate the contract of employment;
• the period of employment;
• the location of work;
• any collective agreements that affect the terms and conditions of the employment;
• where the employee is required to work outside Kenya for a period of more than one month, the period for which that employee is to work outside Kenya, the currency in which the employee will be paid, any additional payment the employee will receive, any other benefits the employee will receive and the terms and conditions relating to the employee’s return to Kenya and
• any terms and conditions relating to annual leave, public holidays, holiday pay, sick leave, workers’ compensation and pensions.

The contract should be added to (in installments, if necessary) with the following information within two months of the employee’s start date:

• the name, age, permanent address and sex of the employee;
• the name of the employer;
• the job description of the employment;
• the date of commencement of employment;
• the form and duration of the contract;
• the place of work;
• the hours of work;
• the remuneration and the method of its calculation;
• details of any other benefits;
• the intervals at which remuneration is paid;
• the date on which the employee’s period of continuous employment began, taking into account any employment with a previous employer that counts towards that period and
• any other prescribed matter.

If any of this information changes, the employer is responsible for revising the contract to reflect the change and notifying the employee of the change in writing.

A probationary period generally should not exceed six months, although it may be extended for a second period of six months with the consent of the employee. Probationary employment may be terminated by giving seven days’ notice or payment in lieu of notice.

Under the Employment (Amendment) Act No. 15 of 2022, certain employers cannot require employees to submit clearance or compliance certificates unless employers intend to enter into contracts of service with the employees. Employers can withdraw such contracts when employees do not satisfy clearance certificate requirements. The date of commencement of the act is April 22, 2022.

Restrictions on Hiring

The Employment Act prohibits employing children under the age of 13, and children ages 13 to 16 are restricted to performing light work not likely to harm their health or development and that will not interrupt their schooling. Youths aged 14 to 16 who are not apprentices should not be employed in any industrial undertaking or task requiring attendance to machinery. Juveniles under 18 years of age must not be employed in any industrial undertaking at night—except that in cases of emergencies a male youth older than 16 may be employed—or allowed to perform work potentially dangerous to their safety or health.

Employers must maintain a register of juveniles they employ.

Recordkeeping

An employer must keep records of remuneration for each of its employees for at least six years after the final entry and copies of all employment contracts for at least five years after the termination of employment.

If the employer fails to produce a written contract or its particulars, the burden of proving or disproving an alleged term of employment will belong to the employer.

An employer must keep the following information on file for three years following termination of an employee:

• changes to a written contract;
• a record of statutory deductions;
• an employee’s weekly rest days;
• an employee’s annual leave entitlement, days taken and days due;
• a record of maternity leave;
• a record of sick leave;
• a record of the location of housing, if provided, and the particulars of the house allowance paid to the employee;
• a record of food rations where applicable;
• registers of children employed;
• a record of warning letters or other evidence of misconduct and
• any other particulars required to be kept under any written law or as may be prescribed by the government.

Employers that employ 25 or more workers must report a vacancy to the director of employment and report when the position has been filled. The employer must also report a termination or layoff to the district’s employment service office within two weeks.

The employer must also keep for submission to the director of employment each Jan. 31 a register that includes for each employee:

• full name,
• age,
• sex,
• occupation,
• date of employment,
• nationality and
• educational level.

Background Checks

Employers cannot require employees to undergo a medical examination unless the worker is a juvenile. Kenyan law does not speak to background checks, criminal record checks or drug tests.

Noncompetition Agreements

Kenya’s labor law does not address noncompetition agreements.

Reference Citations

Employment Contracts: Employment Act, 2007, Ch. 226, § 7-10, 42

Restrictions on Hiring: Employment Act, 2007, Ch. 226, § 56-59

Recordkeeping: Employment Act, 2007, Ch. 226, § 10(6), 74

Background Checks: Employment Act, 2007, Ch. 226, § 10(6), 62

Immigration and Work Permits

In General

All foreign workers must obtain the proper visas and entry permits to work legally in Kenya. Work permits for foreigners are limited to a nonrenewable term of two years.

Visas and Work Permits

Visas are required for most foreign nationals, including U.S. nationals, to enter Kenya. Work permits are divided into seven classifications (D, I, B, A, G, K and M). Class D allow employees to work for a specific employer for a specific position, while class G permits are given to traders, investors and consultants. Class I, B, A and K permits are given to prospectors, investors in agriculture, refugees and those receiving income from foreign (non-Kenyan) sources. Permits are issued by the Immigration Department and generally are valid for two years. Applicants must file Form 3 and submit a letter from employers and pay a processing fee in order to apply.

In line with the government’s efforts to boost hiring of locals and train Kenyan workers for jobs held by expatriate workers, the Department of Immigration Services has released a checklist of documents that employers must submit with each type of work permit. For Class D work permits, applicants must provide the name of a Kenyan understudy and certified copies of his or her academic credentials and full contact details. In filling out the application for the Class D permit, the local employer is also required to demonstrate that it was not able to find a qualified Kenyan worker for the position.

All foreign workers residing in Kenya for a continuous period of at least three months are required to register for a foreigner’s certificate with the Department of Immigration Services and notify the government of travel or address changes. Employers that provide housing to foreign nationals must keep a record of their guests or tenants and submit written reports weekly to the Immigration Department.

Kenya is issuing special five-year, multiple-entry visas to foreign workers traveling between Kenya and the U.S.

Reference Citations

Visas and Work Permits: Employment Act, 2007, §§ 82-85

Nondiscrimination

In General

The Employment Act provides that no employer should discriminate directly or indirectly against or harass an employee or prospective employee on grounds of race, color, sex, language, religion, political or other opinion, nationality, ethnic or social origin, tribe, disability, marital status, pregnancy, mental status, or HIV status in recruitment, training, promotion, terms and conditions of employment, termination of employment, or other matters arising out of employment.

Age Discrimination

The Bill of Rights provides that “the State shall take measures to ensure the rights of older persons to (a) fully participate in the affairs of society; (b) pursue their personal development; (c) live in dignity and respect and be free from abuse; and (d) receive reasonable care and assistance from their family and the State.” Kenyan law does not otherwise address age discrimination in the workplace, although there are official policies directed at recognizing the role older persons play in society.

Gender Discrimination

The Bill of Rights provides that “women and men have the right to equal treatment including the right to equal opportunities in political, economic, cultural and social activities,” and the National Gender and Equality Bill created a National Gender and Equality Commission tasked with promoting “equality and freedom from discrimination” in employment, education, health services, professions and many other areas of private and social life.

The Employment Act defines sexual harassment as direct or indirect requests for sexual intercourse, sexual contact or any other form of sexual activity that contains an implied or express promise of preferential treatment in employment, threat of detrimental treatment in employment or threat about the present or future employment status of the employee; use of language whether written or spoken of a sexual nature; use of visual material of a sexual nature; or a display of physical behavior of a sexual nature that is directly or indirectly offensive, unwelcome and detrimental to the target’s employment, job performance or job satisfaction.

Employers with 20 or more employees must issue a policy statement on sexual harassment after consulting with the employees. The statement should contain the definition of sexual harassment and a pledge that:

• employees are entitled to employment that is free of sexual harassment,
• the employer will endeavor to ensure no employee is subjected to sexual harassment,
• the employer will take any disciplinary measures it considers appropriate against any person who subjects another employee to sexual harassment and
• the employer will not disclose the name of a complainant or the circumstances related to the complaint except where disclosure is necessary for the purpose of an investigation.

The policy should also explain how complaints of sexual harassment are to be submitted to the employer.

Pay Discrimination

The Employment Act states that “every employer shall pay men and women equal remuneration for work of equal value.”

Reference Citations

Nondiscrimination: Employment Act, 2007, § 5

Age Discrimination: Kenya Bill of Rights, § 57

Gender Discrimination: Constitution of Kenya, § 27; Employment Act, 2007, § 5-6

Pay Discrimination: Employment Act, 2007, § 5

Employee Privacy

Employee Data

In 2019, Kenya enacted the Data Protection Act, which is closely modeled after the EU’s GDPR. Regulations implementing the law took effect on Feb. 11, 2022. Under the law and its implementing regulation, employers must comply with the general principles of data protection when collecting, handling, transferring and deleting employee data.

Employee Monitoring and Surveillance

The Data Protection Act does not specifically prohibit the monitoring of employees. However, data controllers must register with the Office of the Data Protection Commissioner if they plan to conduct surveillance on their premises.

Reference Citations

Employee Data: Data Protection Act

Compensation

Hours of Work

Employees generally work eight hours a day Monday through Friday and five hours on Saturday for a total of 45 hours a week, although they may legally work up to 52 hours a week, 60 hours for night work.

Collective agreements may modify the working hours but typically provide for 40 to 52 working hours per week.

Under the Employment Act, every employee is entitled to at least one day of rest in every seven-day period. Kenyan law does not specifically provide for meal breaks or rest intervals during working hours.

Minimum Wage

The minimum wage in Kenya varies by profession and location. For enforcement of the country’s minimum wage provisions, the national labor ministry apportioned specific occupations to 12 occupational groups, almost every group containing multiple occupations. Each occupational group is associated with three geographic minimum wage areas. Minimum Wage Area 1 covers the national capital city of Nairobi and the cities of Mombasa and Kisumu. Area 2 covers the towns of Mavoko (also known as Athi River), Ruiru, and Limuru. Area 3 covers all other territory of the country.

The occupational group that typically has the lowest minimum wage is Occupational Group 1, which is the group for general laborers, including cleaners, sweepers, and gardeners. Occupational Groups 11 and 12 typically are tied for the highest minimum wage, although for Group 11 the highest minimum wage applies to all workers in the group and for Group 12 the highest minimum wage is one of four that may apply based on an individual’s professional grade. Group 11 includes cashiers, drivers of heavy commercial vehicles, and salesman that typically drive as part of their work. Group 12 includes graded and ungraded artisans.

Wages for unionized employees are typically fixed by collective agreement, and certain larger employers enter into company agreements with employees.

On May 1, 2022, the Kenyan President’s Office announced a 12 percent minimum wage increase, effective the same date.

Under the Employment Act, an employee is entitled either to reasonable housing accommodations or to housing allowances that enable the employee to obtain reasonable accommodation. The Employment Act is silent on what reasonable housing accommodation is but gives authority to the labor officer to enter into any house in which an employee is living and inspect it.

Overtime

Overtime is defined as time worked in excess of the normal number of hours per week and is paid at the rate of one and a half times an employee’s normal hourly rate on weekdays, twice the basic hourly rate on Sundays and public holidays. Different regulations affecting overtime rates apply to different sectors of the economy.

Overtime plus straight time cannot exceed 116 hours in total in any period of two consecutive weeks, 144 hours for employees engaged in night work.

Wage Payment

Salary or remuneration may be paid in cash in Kenya shillings, by check or by direct deposit into the employee’s bank account and must be accompanied by an accounting of gross wages and any deductions if the employee is an indefinite-term worker or working pursuant to a fixed-term contract lasting more than six months. The payment must be made during working hours close to the location of employment and may not occur where liquor is sold unless this is the place of employment. Casual employees must be paid at the end of the working day; a fixed-term worker must be paid at the end of the term unless the project lasts longer than a month, in which case the worker is paid each month; and an employee of indefinite duration must be paid at the end of each month.

The employer may make the following deductions from an employee’s wages:

• any amount due as a contribution to a provident or retirement fund;
• a reasonable amount for any damage done to or loss of any property owned by the employer;
• one day’s wages in the event the employee is absent from work without lawful cause;
• an amount equal to any shortage of money resulting from the negligence or dishonesty of an employee whose contract of service provides specifically for his being entrusted with the receipt, custody and payment of money;
• any amount paid to the employee in error;
• any amount authorized by written law, collective agreement, wage determination, court order or arbitration award;
• any amount in which the employer has no direct or indirect beneficial interest and which the employee has requested the employer in writing to deduct from wages;
• an amount due under the terms of a written agreement for a loan made by the employer, not exceeding 50 percent of the wages payable to that employee and
• such other amounts as the government may prescribe.

An employer should not deduct more than two-thirds of an employee’s wages at any given time.

Mandatory Bonuses

Kenya’s labor law does address bonuses.

Reference Citations

Hours of Work: Regulation of Wages General Order, 1982, § 5

Minimum Wage: Labor Institutions Act, 2007, §§ 47-48

Overtime: Regulation of Wages General Order, 1982, § 6

Wage Payment: Employment Act, 2007, Ch. 226, § 17-19

Benefits

Vacation

Under the Employment Act, each employee is entitled to at least 21 days of paid leave after 12 consecutive months of employment. On separation from the employer, an employee is entitled to payment for vacation leave accrued but not used. With the consent of the employee, the employer may divide annual leave into segments to be taken at different times during the year as long as the employee is allowed to take at least two consecutive weeks during the 12-month earning period. Remaining leave must be taken within six months of the earning period.

The Employment Act sets the minimum vacation allotment, and many contracts and collective agreements provide for additional leave, often between 30 and 45 days. On average, Kenyan employees enjoy annual leave of 24 days. The employer and the employee are free to determine between themselves how the days of leave in excess of 21 shall be taken.

Holidays

Kenya observes the following 10 public holidays:

• Jan. 1: New Year’s Day
• Good Friday
• Easter Monday
• May 1: Labor Day
• June 1: Madaraka Day
• Eid-ul-Fitr
• Mashujaa (Kenyatta)
• Dec. 12: Independence Day
• Dec. 25: Christmas Day
• Dec. 26: Boxing Day

Most holidays that fall on a Sunday are observed the following day.

Employees who are required to work on a public holiday are entitled to double pay.

Maternity Leave

The Employment Act allows female employees maternity leave of three months with full pay. No less than seven days prior to taking leave, the employee must give written notice to her employer of the date on which she intends to take the leave and the date on which she will return to work. She must also produce a medical certificate of her condition if the employer requests it.

Insured employees pay between 30 shillings and 320 shillings a month to the National Hospital Insurance Fund, which reimburses the employer for its expenses.

Annual leave continues to accrue during maternity leave. Upon the expiration of an employee’s maternity leave, she is entitled to return to her job or an equivalent position. This is true even if the employee chooses to take sick, compassionate, annual or any other leave immediately following maternity leave.

Paternity Leave

The Employment Act allows new fathers to take two weeks of paid paternity leave upon the birth of a child.

As with maternity leave, the NHIF reimburses employers for expenses associated with this leave.

Sick Leave

Under the Employment Act, the minimum sick leave entitlement is seven days with full pay followed by seven days with half-pay for every 12 months of employment. An employee may take this leave after a period of two consecutive months of service and must supply the employer with a certificate signed by a qualified medical practitioner confirming the inability to work.

The employee should inform the employer of the inability to work as soon as is reasonably practicable. There is no qualifying period of illness. Employees pay between 30 shillings and 230 shillings into the NHIF fund each month, which reimburses employers for sick leave expenses.

The fund reimburses insured employees and their dependents for up to 432,000 shillings a year for costs incurred at private and faith-based hospitals. Medical benefits for dependents are equal to those of the insured.

Other Leave

Editor’s note: This information is not available at this time.

Pensions and Social Security

Insured workers are eligible for retirement benefits at age 60; early retirement at age 50 is possible. Employees contribute 6 percent of monthly salary to the pension fund and employers 6 percent of monthly payroll.

Under the National Social Security Fund Act, all employers with one or more employees are required to register with the pension fund. Membership in the pension fund is mandatory for all employed persons between the ages of 18 and 60.

Contributions are split between two tiers, Tier I based on the minimum wage and Tier II on the nation’s average earnings.

Tier I is funded by contributions based on pensionable (taxable) earnings up to the lower earnings limit—the average statutory minimum monthly basic wage for the major urban centers, secondary urban centers and rural areas. The lower earnings limit is periodically adjusted by the cabinet secretary.

Foreign nationals working in Kenya for less than three years are exempt from participation in the pension system provided they are covered by an equivalent program in their home countries, as are those covered by a social security treaty (totalization agreement).

Workers’ Compensation

All employees are covered by the employer-liability system except those earning less than 4,000 shillings a month, self-employed persons, casual workers and family members working within the family. The entire cost of the system is borne by employers. There is no qualifying period for eligibility.

For a temporary disability, the insured is entitled to 50 percent of earnings (up to 540 shillings a day) after a three-day waiting period. If the disability lasts longer than three days, the award is paid retroactively. A partial permanent disability is compensated with a lump sum of 60 months of the insured’s earnings up to 240,000 shillings. The insured’s doctor, an NSSF doctor and the director of medical services in the Ministry of Health assess the disability.

Employers are required to keep records of employee and employer contributions to the pension fund, including the salary on which they are based.

Reference Citations

Vacation: Employment Act, 2007, Ch. 226, § 28

Holidays: Public Holidays Act, 1998, Schedule 1

Maternity Leave: Employment Act, 2007, Ch. 226, § 29

Paternity Leave: Employment Act, 2007, Ch. 226, § 29

Sick Leave: Employment Act, 2007, Ch. 226, § 30

Pensions and Social Security: National Social Security Fund Act, No. 45 of 2013, §§ 19, 36, First Schedule

Workers’ Compensation: Work Injury Benefits Act, 2007, arts. 4-9

Labor Relations

In General

The right to organize and participate in trade unions is specifically provided for in the Labor Relations Act.

Right to Organize

Under the Labor Relations Act, a trade union is defined as “an association of employees whose principal purpose is to regulate relations between employees and employers, including any employer’s organization.” The act does not apply to anyone in Kenya’s armed or reserve forces, the police, the prison service or the National Youth Service. Otherwise, all workers have the right to join and form associations of their choice. Youths older than 16 may be members of a trade union, although they must reach the age of 18 before they can hold an executive position.

Prior to recruiting members to start a new trade union, the organizers must obtain a certificate from the Registrar of Trade Unions and then apply for registration, which is granted if the union has adopted a constitution that complies with the Labor Relations Act, has an office with a valid address in Kenya, does not duplicate the interests of another registered union, does not hold the same name as another registered union, has only members who are eligible for trade union membership, represents that the decision to register was made at a meeting attended by at least 50 members of the union, is independent of control of any employer’s union or association and has the sole purpose of pursuing the activities of a trade union.

The registrar may revoke a union’s registration if the union was registered as a result of fraud, misrepresentation or mistake; if it is operating in contravention of the Labor Relations Act; if it is operating for an unlawful purpose; if it fails to conduct elections in accordance with the act; or if it ceases to be independent. Parties may appeal any decision of the registrar to the Industrial Court within 30 days of the decision.

Works Councils

Kenya’s labor law does not address works councils.

Dispute Resolution

The Labor Relations Act defines a collective agreement as “a written agreement concerning any terms and conditions of employment made between a trade union and an employer, group of employers or organization of employers.” An employer must recognize a trade union for purposes of collective bargaining if that trade union represents the simple majority of unionizable employees.

For the purpose of negotiating a collective bargaining agreement, an employer must disclose to the trade union all relevant information that will allow the trade union to effectively negotiate on behalf of employees.

A collective agreement must be in writing and signed by the chief executive officer of the employer, the chief executive or national secretary of an employers’ organization that is a party to the agreement and the general secretary of any trade union that is a party to the agreement. A collective agreement must be submitted to the Industrial Court for registration within 14 days of its conclusion and becomes enforceable upon registration with the Industrial Court and effective on the date agreed to by the parties. A collective agreement binds all parties to the agreement, all unionizable workers employed by the employer and all employers and their employees in an organization that is a party to the agreement.

Collective agreements modify individual contracts and generally expire after two years unless renewed by the parties. Benefits conferred under the agreement are extended to nonunion members to whom the agreement is relevant. If benefits conferred under an agreement are more favorable than the law, the provisions of the agreement override those of the law.

The Labor Relations Act directs that a collective agreement may provide for the conciliation or arbitration of any trade dispute identified in the collective agreement. The conciliator or arbitrator is independent and appointed by agreement between the parties. In the case of conciliation, there is no requirement to refer the dispute to the minister of labor. In the case of arbitration, the award is final and binding. It may not be subject to appeal to any court, but it may be reviewed and enforced by the National Labor Court.

Any representative of a party involved in a labor dispute may report the dispute to the labor minister. The other party or parties must then submit a response to the minister within 14 days. The minister will appoint a conciliator within 21 days of receiving the response unless the conciliation process provided by the agreement has not been exhausted or the agreement precluded a negotiation process. The conciliator will attempt to resolve the dispute within 30 days of being appointed, although that period may be extended by the parties’ agreement. The terms of every settlement must be in writing and signed by the parties’ representatives and the conciliator. A signed copy of the text is then lodged with the minister. A labor dispute is considered unresolved if the conciliator files a certificate to this effect with the minister or if the 30-day period ends without the parties agreeing to an extension. One of the parties may refer the dispute to the Industrial Court following an unsuccessful attempt at conciliation.

Strikes and Lockouts

The Labor Relations Act legalizes industrial action for both employees and employers.

A lawful strike first requires completion of the conciliation process. Employees and employers alike must give seven days’ written notice of a strike or lockout to the parties involved and to the labor minister. In reality, industrial actions are rare because of the requirements a union must satisfy prior to justifying a legal strike.

A strike or lockout is illegal if it occurs under the following circumstances:

• a law, court award or collective or recognition agreement prohibits industrial action for the issue in dispute;
• the subject matter of the industrial action is regulated by a collective or recognition agreement binding on the parties to the dispute;
• the parties agreed to refer the dispute to the Industrial Court or to arbitration;
• in the case of a dispute concerning the recognition of a trade union, the trade union has referred the matter to the Industrial Court;
• the trade dispute has not yet been referred for conciliation;
• the employer and employees are engaged in an essential service;
• the industrial action is not in furtherance of a trade dispute or
• the industrial action constitutes a sympathetic strike or lockout.

An employer may not take disciplinary action against or terminate an employee who participates in a lawful strike, and civil proceedings may not be brought against an employer or employee who participates in lawful industrial action. An employer is not required to pay employees for services not rendered during a lawful strike.

Successorship Clauses

Kenya’s labor law does not address successorship clauses.

Reference Citations

Right to Organize: Labor Relations Act, 2007, §§ 4-7

Dispute Resolution: Labor Relations Act, 2007, §§ 62-70

Strikes and Lockouts: Labor Relations Act, 2007, §§ 76-81

Safety, Health and Security

In General

Every employer is required to ensure the safety, health, and welfare of its employees when the employees are present at the workplace.

Workplace Safety and Health

Under the Occupational Safety and Health Act, a workplace must be registered prior to conducting business. The person wishing to conduct business must apply for registration by submitting a written notice to the Director of Occupational Safety and Health. Upon receipt of the application, if the director determines the premises are suitable for the intended use, he or she will register the business and issue a certificate of registration. If the director refuses to issue a certificate of registration, he or she will state in writing the grounds of such refusal.

An employer must issue a permit to work to any employee who is likely to be exposed to hazardous work processes or a hazardous work environment (this includes the maintenance and repair of boilers, dock work, work in confined spaces, the maintenance of machinery and equipment and the installation of electrical energy stations) describing the necessary precautions to be taken.

Kenya’s Occupational Safety and Health Act provides precise instruction on protocols that both employers and employees are expected to follow in order to prevent accidents at the workplace and the steps that employers and employees should take following injury or illness at the workplace.

Every employer is required to ensure the safety, health and welfare of its employees when the employees are present at the workplace. This obligation includes providing appropriate maintenance for machinery, instructions and training as appropriate and information regarding new technologies and serious dangers to health. Employers must compile risk assessments regarding any hazards employees may face and appropriate preventive measures, and they must submit a copy of the report to the district’s occupational safety and health officer. Employers are also responsible for registering their facilities with the local occupational safety and health office. Employers must prepare a written policy for safety and health at the workplace and instructions for implementing the policy. The policy must be made available to employees. All employees are expected to take measures to preserve their own safety and health and report any issues to their employer.

Employers with 20 or more employees must establish a safety and health committee at the workplace. An employer may not take disciplinary or discriminatory action against an employee for his or her participation in a safety and health committee or for reporting a safety or health issue.

Employers must authorize a safety and health audit of the workplace at least once a year to be conducted by a safety and health advisor. The advisor will issue a report, which must be sent to the director of Occupational Safety and Health Services and kept on file by the employer.

An employer must notify the area occupational safety and health officer of any accident, dangerous occurrence or occupational poisoning that occurs at the workplace. If an accident at work results in death, the employer must inform the area occupational safety and health officer within 24 hours of the accident and file an official report within seven days. If a work accident causes nonfatal injuries, the employer must file a written notice with the area occupational safety and health officer within seven days. An employer must enter all workplace injuries into a general register. Any person who fails to report an accident or a dangerous occurrence as required by law may be liable for a fine up to 200,000 shillings and/or imprisonment up to six months.

Under both the Employment Act and the Occupational Safety and Welfare Act, an employer must provide a sufficient supply of clean, drinkable water for employees at the place of employment. The employer must also ensure that its employees have sufficient access to necessary medicine when ill and, if possible, medical attendance during serious illness. An employer must take all reasonable steps to ensure that it is notified of an employee’s illness as soon as reasonably practicable.

Reference Citations

Workplace Safety and Health: Occupational Safety and Health Act, 2007, §§ 6-11

Termination

Termination by Employer

While the Employment Act governs the terms of employment termination, the Industrial Court has produced case law modifying certain provisions of the act.

Employees working under contracts of indefinite duration who have worked for five years or less are entitled to advance written notice of at least one month. Those employees who have worked in excess of five years are entitled to advance written notice of at least two months.

Under the Employment Act, an employer may summarily dismiss an employee for “gross misconduct.” Qualifying misconduct occurs when the employee:

• is absent from work without permission or good excuse,
• is so intoxicated she or he cannot properly perform the work,
• deliberately neglects or ignores work or carries it out improperly,
• uses abusive or insulting language,
• disobeys a superior’s orders,
• is lawfully arrested for an offense punishable by imprisonment and not released within 10 days or
• commits a criminal offense against the employer or its property.

Prior to dismissing an employee for gross misconduct, the employer must inform the employee of the charge and allow the employee an opportunity to present a defense. A worker who believes the dismissal was unfair or without good faith may seek damages from the court.

A contract other than one to perform specific work that does not otherwise prescribe the amount of notice of termination may be terminated with the following notice:

• a contract to pay wages daily requires no notice,
• a contract to pay wages at intervals of less than one month requires notice of one pay period and
• a contract to pay wages or salary periodically at intervals of or exceeding one month requires notice from either party of 28 days.

If an employer chooses to waive any part of an employee’s notice, the employer must still pay the employee for the time the employee would have worked if not for the waiver.

The employer (or employee) may provide payment in lieu of notice.

The Employment Act requires that every employer provide an employee (except those who have worked fewer than four weeks) with a certificate of service upon termination, although an employer is not required to discuss the employee’s character or performance.

The certificate should include:

• the name of the employer and its address,
• the name of the employee,
• the date employment commenced,
• the nature and usual place of employment,
• the date employment ceased and
• such other particulars as may be prescribed.

Failure to provide a certificate subjects the employer to a fine of up to 100,000 shillings and/or imprisonment up to six months.

If an employee challenges the fairness of the termination, a labor office or the Industrial Court will inquire into the following:

• the procedure adopted by the employer in reaching the decision to dismiss the employee,
• the communication of that decision to the employee and the handling of any appeal against the decision,
• the conduct and capability of the employee up to the date of termination,
• the extent to which the employer has complied with the statutory requirements connected with the termination,
• the historical practice of the employer in dealing with the type of circumstances that led to the termination and
• the existence of any warning letters to the employee.

Absent good cause, an employer may not terminate an employee for the following reasons:

• an employee’s pregnancy or any reason connected with her pregnancy;
• an employee’s decision to take any leave to which he or she is entitled;
• an employee’s membership or proposed membership in a trade union;
• the participation or proposed participation of an employee in the activities of a trade union outside working hours or, if the employer has previously consented, within working hours;
• an employee’s executive position or pursuit of such position in a trade union;
• an employee’s refusal or proposed refusal to join or withdraw from a trade union;
• an employee’s race, color, tribe, sex, religion, political opinion or affiliation, nationality, social origin, marital status, HIV status or disability;
• an employee’s filing or proposed filing of a complaint or other legal proceeding against his or her employer, except where the complaint is shown to be irresponsible and without foundation or
• an employee’s participation in a lawful strike.

An employee who believes his or her dismissal was unfair may lodge a complaint with the labor officer of the district within three months of the termination date.

A labor officer who determines the dismissal was not justified may recommend that the employer pay the employee the wages the employee would have earned under the statutory notice period or damages associated with the dismissal. If the labor officer determines the summary dismissal was unfair, the officer may recommend the employer reinstate the employee or engage him or her in an equivalent position.

Termination by Employee

Under the Employment Act, employees who are paid by the month must provide the employer with one month’s notice before resigning, although the individual employment contract may provide for a shorter or longer notice period. Employees who fail to give notice must pay the employer wages equivalent to the notice period.

The employee may also be liable for damages if his or her resignation violates a contractual obligation to work for a specified period. Typically, an employee who resigns is not entitled to severance pay.

Plant Closings and Mass Layoffs

Redundancy and severance pay as a result of redundancy are typically addressed in collective agreements with provisions for the amount of notice that must be given to the union and to the employees who are declared redundant, although at least one month’s notice and severance at the rate of at least 15 days for each completed year of service is required. If conditions improve such that the employer seeks to hire following redundancy-induced layoffs, the employer must give priority to those employees who were dismissed as redundant.

Prior to terminating an employee as a result of redundancy, an employer must:

• if the employee is a union member, notify the union and the labor officer in charge of the area where the employee is employed of the reasons for the redundancy at least a month prior to the intended date of termination;
• where an employee is not a member of a trade union, notify the employee and the labor office in writing;
• consider the seniority, ability and reliability of each employee considered for termination;
• ensure that an employee not covered by a collective agreement providing for special benefits upon termination for redundancy is not placed at a disadvantage compared to the employees who are covered;
• pay the employee in cash for any leave not yet reimbursed;
• provide the employee not less than one month’s notice or one month’s wages in lieu of notice and
• pay an employee severance at the rate of at least 15 days for each completed year of service.

Payment on Termination

If an employee is summarily dismissed for lawful cause, the employer must pay any outstanding salary, allowance or benefit. The employer must also, within seven days, submit to a labor officer in the district where the employee was working a written report specifying the reasons for the dismissal and the period of notice.

An employee who is unfairly dismissed is entitled to reinstatement and compensation. These rights can be granted separately or together. Under the Employment Act, reinstatement must be ordered by the Industrial Court. In determining whether reinstatement is appropriate, the court will question whether the employer acted in good faith, take into account the circumstances of the dismissal and consider information such as the length of time since dismissal, whether the employee is currently employed elsewhere and the willingness of both the employer and the employee to reenter an employment relationship.

The typical remedy for breach of contract is damages, the amount depending on the circumstances of the case but generally based on the monthly or annual earnings of the dismissed person. Under the Employment Act, the amount awarded must not exceed the actual financial loss suffered by the employee as a result of the wrongful dismissal or an amount equal to his or her wages for 12 months. In computing the damages award, the court takes into account any wages the employee has received since the dismissal.

Unemployment Insurance

There is no unemployment insurance in Kenya.

Reference Citations

Termination by Employer: Employment Act, 2007, §§ 35-46

Termination by Employee: Employment Act, 2007, § 35

Plant Closings and Mass Layoffs: Employment Act, 2007, § 40

Payment on Termination: Employment Act, 2007, § 18

Personal Taxes

Residency Requirements

Individuals that have a permanent home in Kenya and are present in Kenya for any time during the year are considered resident in Kenya for tax purposes. Individuals who have no permanent home in Kenya are considered residents for tax reasons if they are present in Kenya for at least 183 days in the tax year or have averaged 122 days in the country in the current and two previous tax years.

Taxable Income

Residents are subject to tax on their worldwide income, nonresidents only on income accrued in or derived from Kenya.

Tax Rates

In Kenya, the top rate of personal income tax is 30 percent, with progressive bands of 10 percent, 15 percent, 20 percent, and 25 percent.

Social taxes in Kenya include mandatory contributions to the National Social Security Fund (NSSF), which is a lump-sum retirement fund, and the National Hospital Insurance Fund (NHIF), which is the national health insurance program.

Employees also are required to contribute 6 percent of their salary to the NSSF. The contribution is capped. Employers are required to contribute 6 percent of payroll to the National Social Security Fund (NSSF). The contribution is capped.

Employees are required to make monthly contributions to NHIF as follows:

Reference Citations

Residency Requirements: Income Tax Act, 1974, ch. 470 definitions “resident”

Taxable Income: Income Tax Act, 2009, § 47

Web References

Law and Regulation

Constitution of Kenya

Employment Act

Labor Institutions Act

Labor Relations Act

National Social Security Fund Act

Occupational Safety and Health Act

Public Holidays Act

Regulation of Wages General Order

Work Injury Benefits Act