The Kenya Employment Act, 2007, is not just a legal document—it is the single most powerful tool that governs hiring, discipline, termination, pay, benefits, and workplace rights in Kenya.
Yet every year:
- Employers lose millions in wrongful termination awards
- Employees walk away without the terminal dues they legally deserve
- Businesses collapse under poor HR decisions
- Workers suffer in silence because they don’t know their rights
This article deconstructs the Employment Act section by section—especially the clauses that most lawsuits are built on.
If you employ people in Kenya—or you are employed—this is required reading.
Section 2: Who Is an “Employee” (And Why This Definition Destroys Many Employers)
The Act defines an employee as any person employed for wages or salary, including casuals and piece-rate workers.
Reality check for employers:
If you:
- Control working hours
- Supervise tasks
- Pay wages (daily, weekly, monthly)
You are an employer under the law, whether you issued a contract or not.
Calling someone a “consultant” or “casual” does not override reality.
Courts look at facts, not titles.
Section 9 & 10: Written Contracts Are Not Optional
Any employment lasting more than 3 months must be in writing.
The contract must state:
- Job title and duties
- Place of work
- Hours of work
- Remuneration
- Leave entitlement
- Termination terms
The killer clause:
If there is no written contract, and a dispute arises, the employer carries the burden of proof.
No contract = employer loses control of the narrative.
Section 27: Working Hours, Rest Days & Overtime
This section protects employees from exploitation—and traps employers who ignore it.
Key points:
- Employees are entitled to at least one rest day per week
- Normal working hours are governed by sector regulations
- Overtime must be paid or compensated
Common employer mistake:
Expecting staff to work weekends, holidays, or late nights without pay because “that’s the culture here”.
Culture does not override statute.
Section 28: Annual Leave Is a Legal Right, Not a Favour
Employees are entitled to:
- At least 21 working days of paid leave per year
Leave:
- Cannot be replaced with cash unless employment ends
- Cannot be denied indefinitely due to “work pressure”
Employers who block leave accumulation without policy expose themselves to claims.
Section 37: Casual Employment — The Most Abused Section in Kenya
This is one of the most misunderstood and most litigated sections.
What Section 37 says (in simple terms):
A casual employee automatically becomes permanent if:
- They work continuously for 1 month or more, OR
- They perform work that cannot reasonably be completed in one day
Once converted, they are entitled to:
- Annual leave
- Notice
- Public holidays
- Service pay
Brutal truth:
You cannot keep someone “casual” for years to avoid obligations.
Courts see this as deliberate exploitation.
Section 41: The Disciplinary Hearing Rule (Most Employers Ignore This)
Before terminating an employee on grounds of misconduct, poor performance, or incapacity, the employer must:
- Explain the reason clearly
- Allow the employee to respond
- Allow the employee to be accompanied by a colleague or union representative
No hearing = unfair termination, even if the employee was guilty.
This section alone has cost Kenyan employers millions in compensation.
Section 42: Probation Is Not a Free Termination Window
Probation:
- Must not exceed 6 months (extendable to 12 with consent)
- Still requires fair treatment
Common myth:
“You can terminate freely during probation.”
Legal reality:
While notice periods may be shorter, termination must still be reasonable and non-discriminatory.
Probation is not a license for abuse.
Section 43: The Employer Must Prove the Reason for Termination
This section shifts power heavily onto employers—and many don’t realize it.
The law states:
The employer must prove the reason for termination, and that the reason is valid and fair.
If you cannot prove:
- Misconduct
- Poor performance
- Redundancy
- Incapacity
👉 The termination is automatically unfair.
Saying “we lost trust” or “it wasn’t working” is not evidence.
Section 44: Summary Dismissal — High Risk, High Consequence
Summary dismissal allows termination without notice—but only for gross misconduct, such as:
- Theft
- Fraud
- Violence
- Gross insubordination
Critical warning:
Even in summary dismissal:
- A disciplinary hearing under Section 41 is still required
Skipping due process turns a valid dismissal into an illegal one.
Section 45 & 47: Unfair Termination — Where Employers Lose the Most
Section 45:
Termination is unfair if:
- There is no valid reason
- Due process was not followed
Section 47(5):
The employee must show termination occurred.
The employer must justify it.
Compensation risk:
Courts can award up to:
- 12 months’ gross salary
- Plus notice, leave, service pay, and costs
One bad HR decision can financially cripple a business.
Section 51: Certificate of Service — You Must Issue It
Every employee leaving employment—except those dismissed for gross misconduct—is entitled to a Certificate of Service.
It must state:
- Name
- Job title
- Period worked
You cannot withhold it due to:
- Disputes
- Misconduct
- Resentment
Refusing to issue it is a separate offence.
Section 74: Employment Records — Silent but Deadly
Employers must keep records of:
- Contracts
- Pay
- Leave
- Disciplinary actions
Failure to produce records in court means:
👉 The court believes the employee’s version.
Paperwork protects employers—not employees.
Section 90: Limitation Period (Employees, Take Note)
Employment claims must be filed within:
- 3 years for general disputes
- 12 months for continuing injury
Delay kills cases—no matter how strong.
Final Verdict: The Employment Act Is Neutral — Ignorance Is Not
The Kenya Employment Act, 2007 does not favor employees or employers.
It favors:
- Documentation
- Fair process
- Reasonable conduct
For employers:
HR shortcuts are expensive.
Compliance is cheaper than litigation.
For employees:
Rights are powerful—but only if you understand and assert them properly.
One Last Truth
Most employment disputes in Kenya are avoidable.
They happen because:
- Contracts are missing
- Processes are ignored
- Managers act emotionally
- HR is treated as an afterthought
The law does not forgive ignorance.
If you employ—or are employed—understand the Act, or pay the price.
