{"id":137252,"date":"2026-04-07T13:44:10","date_gmt":"2026-04-07T13:44:10","guid":{"rendered":"https:\/\/my.legal500.com\/guides\/?post_type=comparative_guide&#038;p=137252"},"modified":"2026-04-07T13:44:10","modified_gmt":"2026-04-07T13:44:10","slug":"kenya-employment-and-labour-law","status":"publish","type":"comparative_guide","link":"https:\/\/my.legal500.com\/guides\/chapter\/kenya-employment-and-labour-law\/","title":{"rendered":"Kenya: Employment and Labour Law"},"content":{"rendered":"","protected":false},"template":"","class_list":["post-137252","comparative_guide","type-comparative_guide","status-publish","hentry","guides-employment-and-labour-law","jurisdictions-kenya"],"acf":[],"appp":{"post_list":{"below_title":"<div class=\"guide-author-details\"><span class=\"guide-author\">Munyao, Muthama and Kashindi Advocates<\/span><span class=\"guide-author-logo\"><img src=\"https:\/\/my.legal500.com\/guides\/wp-content\/uploads\/sites\/1\/2020\/03\/MMK-Advocates-Logo.jpg\"\/><\/span><\/div>"},"post_detail":{"above_title":"<div class=\"guide-author-details\"><span class=\"guide-author\">Munyao, Muthama and Kashindi Advocates<\/span><span class=\"guide-author-logo\"><img src=\"https:\/\/my.legal500.com\/guides\/wp-content\/uploads\/sites\/1\/2020\/03\/MMK-Advocates-Logo.jpg\"\/><\/span><\/div>","below_title":"<span class=\"guide-intro\">This country specific Q&amp;A provides an overview of Employment and Labour Law laws and regulations applicable in Kenya<\/span><div class=\"guide-content\"><div class=\"filter\">\r\n\r\n\t\t\t\t<input type=\"text\" placeholder=\"Search questions and answers...\" class=\"filter-container__search-field\">\r\n\t\t\t<\/div>\r\n\r\n\t\t\t\r\n\r\n\r\n\t\t\t<ol class=\"custom-counter\">\r\n\r\n\t\t\t\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">Does an employer need a reason to lawfully terminate an employment relationship? If so, state what reasons are lawful in your jurisdiction?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>Yes. Under sections 43 and 45 of the Employment Act, an employer must have valid and justified grounds to lawfully terminate an employment relationship. These grounds must relate to an employee\u2019s conduct, performance, capacity, incompatibility, or the operational needs of the employer (which some court decisions have interpreted to include or mean redundancy). This requirement is known as substantive justification. In addition to having valid reasons, employers are also required to give the employee an opportunity to be heard before any decision to terminate is made. This process is referred to as procedural fairness as further outlined in item 8 below.<\/p>\n<p>For a termination to be lawful, both substantive justification and procedural fairness must be present.<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">What, if any, additional considerations apply if large numbers of dismissals (redundancies) are planned?  How many employees need to be affected for the additional considerations to apply?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>The mandatory requirements for redundancies are outlined under Section 40 of the Employment Act. These requirements apply irrespective of the number of employees affected by the redundancy. The statute prescribes seven requirements, which may be summarised into four broad categories: redundancy and termination notices (accompanied by consultation), objective selection criteria, non-discrimination, and payment of statutory dues. These requirements are explained further below.<\/p>\n<p>a. A written notice of intended redundancy must be issued to the union (for union members), or personally to non-union employees, and to the labour officer in either case. The notice should state the reasons for, and the extent of, the intended redundancy. The termination of employment does not take effect at this stage, as the notice is merely an expression of intention to declare positions redundant. The courts have held that this notice period must run its full course and there can be no payment in lieu of this notice. The affected employees remain employees for a period of at least 30 days during which the notice runs, to allow for meaningful consultations between the employer and the affected employees or their union, as the case may be.<\/p>\n<p>b. Consultations: One of the key purposes of the 30 days\u2019 notice of intention to declare redundancy is to allow for consultations. Consultations are not expressly required by the Employment Act but courts have stated that they are implicit under sections 40(1)(a) and (b) of the Act. The courts have also noted that the obligation to consult is provided for under Article 13 of Recommendation No. 166 and Convention No. 158 (Termination of Employment Convention, 1982) of the ILO, which have been applied in Kenya. The purpose of consultations is to allow the parties to consider measures that may be taken to minimise or avert the redundancies, or the best way of implementing the redundancy if it is not avoidable. The consultations must be meaningful and not merely a procedural formality.<\/p>\n<p>c. Selection criteria: The employer must have regard to seniority in time (commonly expressed as Last In First Out or First In First Out), as well as the skill, ability, and reliability of each employee within the affected class. The selection criteria applies where some, but not all, employees within a class are affected by the redundancy. The courts have stated that the selection criteria must not be non-existent or opaque, but must be objective and fair. To meet this requirement, an employer may adopt a scorecard or similar tool to assess employees based on the criteria of skill, ability, reliability, and seniority in time.<\/p>\n<p>d. Non-discrimination due to a Collective Bargaining Agreement (CBA): Where a CBA exists setting out terminal benefits payable upon redundancy, the employer should not place employees at a disadvantage for being or not being members of a trade union.<\/p>\n<p>e. Computation of redundancy dues: Severance pay is payable at the rate of not less than fifteen days\u2019 pay for each completed year of service. Where individual contracts or CBAs provide for more favourable severance terms, those terms will apply.<\/p>\n<p>f. Termination of employment: Once a decision is ultimately made to terminate employment after the lapse of the 30 days\u2019 notice period, termination should be effected by issuing at least one month\u2019s notice or payment of at least one month\u2019s salary in lieu of notice. Longer notice periods provided under individual contracts or CBAs will apply.<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">What, if any, additional considerations apply if a worker\u2019s employment is terminated in the context of a business sale?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>Depending on the nature of the business sale, the transaction may result in transfer of employees or abolition of jobs through redundancies. For the redundancies, the procedure is as outlined in (2) above. There are no express statutory provisions on transfer of employees but principles have been developed by decisions of the courts. In some of the cases, the courts have persuasively drawn from legislation in comparable jurisdictions such as the United Kingdom\u2019s Transfer of Undertakings (Protection of Employment) Regulations (TUPE) and South Africa\u2019s Basic Conditions of Employment Act. In the case of Elizabeth Waceke &amp; 62 Others V Airtel Networks(K) Limited &amp; Another [2013] eKLR; the court held that:<\/p>\n<p>i. Parties should ensure that there is a balance in seeking to protect employees against the loss of their jobs in the event of a business transfer. This protection entails ensuring that the employees are treated fairly; and<\/p>\n<p>ii. A transfer should be undertaken such that there is balance on the one hand between an employer\u2019s interest in profitability, efficiency or survival of the business or disposal, and on the other hand the employee\u2019s interest is job security and the right to freely choose an employer on the other hand.<\/p>\n<p>iii. Where a whole or part of a business or trade is outsourced or transferred, unless there is a consent from the affected employees, all rights and obligations between the old employer and each individual employee as at the time of transfer continued in force as if it had been rights and obligations between the new employer and each employee;<\/p>\n<p>iv. The employees must give their individual consent or where they are unionized, the union must be involved and must agree to the transfer;<\/p>\n<p>v. The outgoing employer has the option of terminating the employee\u2019s employment through redundancy, pay all applicable dues and let the employee engage incoming employer on a willing employee-willing employer basis;<\/p>\n<p>Usually, an incoming employer may require the outgoing employer to agree to indemnify them against any losses from such pre-transfer breaches of contracts or employment law. The outgoing employer would be expected to be released from any liabilities and employment related claims for the period after the transfer. These would normally be included in an agreement.<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">Do employees need to have a minimum period of service in order to benefit from termination rights?  If so, what is the length of the service requirement?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>Employees do not need to have a minimum period of service in order to benefit from termination rights. Section 45 (3) of the Employment Act that came into force in 2007 provided that termination rights did not apply to employees that had been employed for less than 13 months but this provision was declared as unconstitutional in 2012 and the restriction was therefore removed from the law.<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">What, if any, is the minimum notice period to terminate employment?  Are there any categories of employee who typically have a contractual notice entitlement in excess of the minimum period?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>This is provided under Section 35 of the Employment Act as follows:<\/p>\n<p>a. Where the contract is to pay wages daily, a contract terminable by either party at the close of any day without notice;<\/p>\n<p>b. Where the contract is to pay wages periodically at intervals of less than one month, a contract terminable by either party at the end of the period next following the giving of notice in writing<\/p>\n<p>c. Where the contract is to pay wages or salary periodically at intervals of or exceeding one month, a contract terminable by either party at the end of the period of twenty-eight days next following the giving of notice in writing.<\/p>\n<p>d. Where the contract of employment or Collective Bargaining Agreement (CBA) provides a longer notice period, that longer period will be applicable.<\/p>\n<p>These notice provisions apply after an employer has granted an employee an opportunity to be heard, as outlined under (8) below. For instance, in cases of misconduct, instead of summary dismissal, their employment may, depending on the severity of the offence, be terminated with notice or payment in lieu of notice. The same applies in cases of incapacity and poor performance, where termination may be immediate or with notice, but only after the applicable procedure has been followed before invoking notice.<\/p>\n<p>In redundancy situations, the minimum notice period for termination is one month, which takes effect after the lapse of the 30 days\u2019 notice of intention to declare redundancy and completion of the consultation process, as outlined in 3 above.<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">Is it possible to make a payment to a worker to end the employment relationship instead of giving notice?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>Yes, payment in lieu of notice is allowed under Section 36 of the Employment Act.<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">Can an employer require a worker to be on garden leave, that is, continue to employ and pay a worker during their notice period but require them to stay at home and not participate in any work?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>This is not explicitly provided in the law but in practice, employers apply it based on the provisions of a contract, internal policy or a CBA.<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">Does an employer have to follow a prescribed procedure to achieve an effective termination of the employment relationship? If yes, describe the requirements of that procedure or procedures. Is an employee entitled to appeal against their termination?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>The employer is obligated to follow fair and proper procedure when terminating employment. This is the procedure set out in the law as well as internal policies. The relevant provisions regarding procedure are set out in section 41 of the Employment Ac for misconduct, poor performance, incompatibility and incapacity and Section 40 for redundancy as set out above.<\/p>\n<p>The main aspects are;<\/p>\n<p>a) Duty to explain the reasons the employer is considering terminating the employment. The explanation must be in a language the employee understands.<\/p>\n<p>b) Giving an opportunity to an employee to be heard before effecting the termination (Commonly known as the show-cause process). The employer issues a show cause letter explaining the allegations laid against the employee and provides the relevant evidence relied on. The employee responds to the show cause letter in writing. If the employee\u2019s written explanation is not satisfactory the employer invites the employee to a disciplinary hearing.<\/p>\n<p>c) The employee is entitled to be accompanied to the disciplinary hearing by a fellow employee or union representative;<\/p>\n<p>d) The employee should hear and consider any explanations by an employee or the representative;<\/p>\n<p>e) If the explanations are not satisfactory or if the employee is found culpable, the contract may be terminated by giving one months notice or paying salary in lieu of notice. In cases of gross misconduct the employee may be summarily dismissed without notice.<\/p>\n<p>f) The employer should follow any additional procedure in internal policies.<\/p>\n<p>In addition to these requirements, the process for terminating employment due to poor performance requires further steps. Specifically, an employee must first be placed on a Performance Improvement Plan (PIP), providing them with a clear opportunity to address and improve their performance before any dismissal is considered. Likewise, when termination is based on incapacity, additional procedural safeguards apply. The employer must obtain appropriate medical certification to confirm the incapacity and must also explore reasonable accommodations, considering alternative roles or adjustments before proceeding with termination.<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">If the employer does not follow any prescribed procedure as described in response to question 8, what are the consequences for the employer?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>If the employer does not follow the prescribed procedure, the court may make a finding that the termination or dismissal was unfair. This is because both procedural fairness and substantive justification must exist for a fair and lawful termination. A finding of unfair termination may therefore arise from procedural flaws, lack of valid and justified reasons as outlined in response to question 1, or a combination of both. In such cases, the court may award compensation to the aggrieved employee of up to a maximum of 12 months\u2019 salary. In some instances, the court may order that the employee be reinstated to the position they held at the time of termination with the attendant benefits.<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">How, if at all, are collective agreements relevant to the termination of employment?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>CBAs may contain provisions that are necessary to the termination of employment, for example provisions on notice periods for different categories of employees covered by the CBA and additional benefits payable upon termination such as gratuity. CBAs may also provide for specific redundancy processes, including, for instance, prescribing which selection criteria takes priority.<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">Does the employer have to obtain the permission of or inform a third party (e.g local labour authorities or court) before being able to validly terminate the employment relationship? If yes, what are the sanctions for breach of this requirement?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>The employer does not have to obtain permission or approval to terminate employment but an employer that intends to terminate the employment relationship on account of redundancy, the Labour Office must be notified.<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">What protection from discrimination or harassment are workers entitled to in respect of the termination of employment?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>Article 27(5) of the Constitution of Kenya prohibits discrimination on protected grounds including, but not limited to, age, sex, health status, marital status, disability, pregnancy, or ethnic background. Section 5(2) of the Employment Act further requires employers to eliminate any form of discrimination within the workplace and in employment decisions, and reflects or mirrors the same protected grounds.<\/p>\n<p>In the context of termination, it is prohibited to terminate an employee on any of these protected grounds. Any termination that is directly or indirectly linked to a protected characteristic is likely to be found to be discriminatory and therefore unfair and unlawful.<\/p>\n<p>Section 46 of the Employment Act further reinforces this position by setting out reasons that do not constitute fair reasons for termination, including grounds that are inherently discriminatory, such as pregnancy, participation in trade union activities, or the exercise of statutory rights. Termination on such grounds will be deemed automatically unfair and may also amount to discrimination. In addition, where harassment, including sexual harassment, is a factor leading to termination, employers are required to demonstrate that appropriate steps were taken to address such conduct in accordance with the law and internal policies. A failure to act on complaints of harassment, or terminating an employee\u2019s employment for raising such complaints, may expose the employer to claims of unfair termination and discrimination.<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">What are the possible consequences for the employer if a worker has suffered discrimination or harassment in the context of termination of employment?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>There is a legal risk of a finding of liability and an award of monetary damages in cases where it has been determined that an employee has been subjected to discrimination on a prohibited ground. One of the\u00a0 significant decisions of the courts on discrimination of employees is set out in <em>Ol Pejeta Ranching Ltd v Muhoro (Civil Appeal 42 of 2015) [2017] KECA 329 (KLR) (22 September 2017) (Judgment)<\/em> where the Court of Appeal affirmed the Employment and Labour Relations Court\u2019s decision that had established that an employee was discriminated on account of his race. He was awarded damages as compensation for pay disparity and for unlawful termination.<\/p>\n<p>As such, where discrimination or harassment is established, the termination is likely to be found to be unfair and unlawful. The court may award compensation of up to 12 months\u2019 salary for unfair termination, in addition to separate monetary compensation, which is not capped and is awarded at large, for violation of Section 5 of the Employment Act and Article 27 of the Constitution. In appropriate cases, the court may also order reinstatement of the employee with attendant benefits, although this remedy is rarely granted in discrimination cases and may not always be practical.<\/p>\n<p>In cases of harassment, where an employee has raised a complaint and the employer fails to take appropriate action to investigate and address it, the employer faces a legal risk and may be held liable in damages. Employers may also be found vicariously liable for acts of harassment committed in the workplace where they fail to take reasonable steps to prevent or remedy such conduct. Kenyan courts have in a number of decisions emphasised the duty of employers to act on complaints of harassment, particularly sexual harassment, and have imposed liability where there is inaction, inadequate investigation, or failure to enforce workplace policies.<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">Are any categories of worker (for example, fixed-term workers or workers on family leave) entitled to specific protection, other than protection from discrimination or harassment, on the termination of employment?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>Section 29 (2) of the Employment Act protects employees who are on maternity leave and provides that they have the right to return to the job held prior to the leave or to a job on terms and conditions not less favourable than those which would have applied had they not been on maternity leave. Section 22 of the Persons with Disabilities Act provides that a person with a disability shall not be dismissed or suffer a reduction in rank on grounds of disability. \u00a0.<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">Are workers who have made disclosures in the public interest (whistleblowers) entitled to any special protection from termination of employment?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>Yes, most employers have policies in place to provide for non-retaliation against whistleblowers in an organization. If a person is retaliated against as a result of whistleblowing, there is a risk that an employer may be held liable and ordered to compensate such an employee in damages. For employers without such a policy, any dismissal or sanction on retaliatory grounds would constitute grounds for unfair termination.<\/p>\n<p>Further, Section 46(h) of the Employment Act provides that it is not a fair reason for termination where an employee initiates or proposes to initiate a complaint or other legal proceedings against the employer or participates in such proceedings. As such, termination on account of whistleblowing or raising complaints would be deemed automatically unfair.<\/p>\n<p>While there is no legal framework on whistleblowing currently, Parliament is considering the Whistleblower Protection Bill 2023 which if passed will include protections for employees.<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">In the event of financial difficulties, can an employer lawfully terminate an employee\u2019s contract of employment and offer re-engagement on new less favourable terms?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>Where an employer is undergoing financial difficulties and cannot support its workforce, section 40 of the Employment Act allows it to declare a redundancy. Employers are, however, expected to mitigate instances of redundancy as far as possible, and where there is an opportunity for an employee to continue working in a lesser capacity, this option should be considered and offered to the employee, subject to the employee\u2019s consent. The redundancy must be genuine and not misused as a mechanism to pressure employees into accepting less favourable terms. Courts have emphasised that employers relying on financial difficulties must substantiate this position. In particular, employers are required to provide financial records demonstrating their inability to sustain employment. This position was affirmed in <em>Michael Juma Chinjo &amp; 116 others v Diamond Industries Ltd<\/em> [2020] eKLR.<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">What, if any, risks are associated with the use of artificial intelligence in an employer\u2019s recruitment or termination decisions? Have any court or tribunal claims been brought regarding an employer\u2019s use of AI or automated decision-making in the termination process?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>Our jurisdiction is yet to develop policy or laws to specifically govern the use of artificial intelligence in the employment context. Regulation 22 of the Data Protection (General) Regulations and Section 35 of the Data Protection Act prohibits decision-making that affects an individual solely through automated processing which may produce effects that may affect the data subject, save in limited exceptional circumstances. These provisions\u00a0 highlight\u00a0 the risk of profiling when such technology is deployed without human input or checks for accountability.<\/p>\n<p>An Artificial Intelligence Bill, 2026, which is currently under consideration by Parliament, proposes to classify AI systems utilised in employment as high-risk. Consequently, the Bill if enacted as proposed, will mandate comprehensive risk assessments, human rights impact evaluations, and enhanced transparency measures for such systems. However, these provisions are not yet legally binding as the Bill has not been enacted.<\/p>\n<p>There is increased usage of AI in routine processes such as recruitment where it helps sift through applications and identify candidates best suited for a particular job description. Such systems, may however, be prone to discrimination bias on metrics such as age, sex, gender or disability which would be considered unlawful. Employers must therefore ensure that AI systems are appropriately designed, tested, and monitored to minimise bias, and that decisions are subject to human review.\u00a0 In practice, recruitment processes still incorporate interviews and other human-led assessments to determine suitability.<\/p>\n<p>&nbsp;<\/p>\n<p>In the Kenyan context, using exclusively automated AI systems for termination decisions would be impractical and legally risky as the process involves multiple stages that require human judgment and accountability. For instance, when an employee is suspected of misconduct, they must be given an opportunity to present their defence both in writing and orally before any decision is reached. A disciplinary hearing must be convened to hear the case, after which the employee has a right to appeal. These procedural requirements are inherently dependent on human involvement, making it difficult to substitute such processes with fully automated systems.<\/p>\n<p>To date, we are not aware of any reported decisions from Kenyan courts directly addressing the use of artificial intelligence or fully automated decision-making in termination processes. While there have been decisions addressing performance management systems and disciplinary processes, including those supported by internal or digital systems, these have not squarely considered the legality of automated decision-making within the meaning of section 35 of the Data Protection Act. Similarly, while the Office of the Data Protection Commissioner has issued guidelines, determinations, and enforcement decisions under the Data Protection Act, there is currently no specific guidelines or judicial precedent addressing AI-driven employment decisions.<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">What financial compensation is required under law or custom to terminate the employment relationship? How is such compensation calculated?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>The contract of employment is the starting point for calculating any benefits due to an employee. Upon termination of an employment contract, an employee is entitled, at a minimum, to payment of salary for the days worked, accrued annual leave, and any other benefits specified in the contract (commonly referred to as terminal dues). In addition to statutory minimum entitlements, some contracts of employment or collective bargaining agreements (CBAs) may provide for further financial benefits. These may include, for example, gratuity payments, relocation allowances granted where an employee moves to a different location or out of the country, ex gratia payments, or other agreed benefits. Such additional benefits are only payable where they are expressly provided for in the employment contract as they are not statutory requirements.<\/p>\n<p>Where employment is terminated on grounds of poor performance, misconduct or physical incapacity, the employer may pay notice in accordance with the employment contract if the termination is not immediate. If the contract stipulates a longer notice period, that period will apply. Where an employee is summarily dismissed, then notice pay is not payable.<\/p>\n<p>If an employee\u2019s position is declared redundant, then in addition to terminal dues, they would be entitled to notice pay in accordance with the contract and severance pay at the minimum rate of 15 days for each completed year of service. If the contract of employment has a more favourable severance rate, then that rate will apply.<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">Can an employer reach agreement with a worker on the termination of employment in which the employee validly waives his rights in return for a payment? If yes, in what form, should the agreement be documented?  Describe any limitations that apply, including in respect of non-disclosure or confidentiality clauses.<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>Yes, such an terms would be documented in a mutual separation agreement. It should be documented that the parties have mutually accepted to end the relationship. While payment is the most common form of consideration in such agreements, it may vary depending on the circumstances. For example, the parties might agree to abandon a disciplinary process against an employee in order to reach an amicable settlement. It is customary for such agreements to include a waiver in which both parties agree not to pursue any claims against each other arising from the employment or its termination. It is also typical for non-disclosure and confidentiality clauses to be incorporated to protect both parties, particularly the employer. A mutual separation agreement cannot be used to take away minimum statutory entitlements which remain payable such salary for work performed and unutilized annual leave as held in the decision of Muthiga v Diamond Trust Bank Ltd (Cause 423\u00a0of\u00a02017) [2021]\u00a0KEELRC\u00a01030\u00a0(KLR).<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">Is it possible to restrict a worker from working for competitors after the termination of employment? If yes, describe any relevant requirements or limitations.<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>Non-compete clauses are generally treated as restraints of trade and are <em>prima facie <\/em>unenforceable. However, they may be upheld where the employer demonstrates that the restriction is reasonable and necessary to protect legitimate business interests.<\/p>\n<p>If a contract contains a non-compete clause that extends beyond termination, it may restrict the employee from working with a competitor, but only to the extent that the restriction is reasonable. The reasonableness test considers factors such as the duration of the restriction, the geographical scope, and the nature of the employer\u2019s protectable interests. For example, a duration of up to six months has in some instances been considered reasonable, depending on the circumstances.<\/p>\n<p>Courts have emphasised that non-compete provisions must strike a balance between protecting the employer\u2019s legitimate interests and upholding public policy, which favours free market competition and the right of individuals to use their skills to earn a livelihood. A non-compete clause will be deemed unreasonable if it goes beyond what is necessary to protect the employer\u2019s interests or operates oppressively against the employee.<\/p>\n<p>Some non-compete clauses provide for compensation during the restricted period, while in other cases employers contend that part of the employee\u2019s remuneration constitutes consideration for the restraint.<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">Is it possible to restrict a worker from soliciting customers or clients, or employees of the employer, after the termination of employment? If yes, describe any relevant requirements or limitations (including any payments that must be made to the worker for the restriction to be valid and enforceable).<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>Non-solicitation clauses are similarly treated as restraints of trade and are prima facie unenforceable but may be upheld where they are reasonable and necessary to protect the employer\u2019s legitimate business interests.<\/p>\n<p>Such clauses are often framed in a manner similar to non-compete provisions, as the solicitation of customers, clients, or employees may be considered competitive. However, for such clauses to be valid and enforceable, they must be reasonable in scope. The reasonableness test considers factors such as the duration of the restriction, the geographical scope, and the nature of the employer\u2019s protectable interests. Where a clause is overly broad or oppressive, it is likely to be found unenforceable.<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">Can an employer require a worker to keep information relating to the employer confidential after the termination of employment?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>Yes. It is standard in termination or in a mutual separation to require that any confidential information obtained in the course of employment not be disclosed by an employee. Contracts of employment also typically provide for this obligation to survive the termination of employment.<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">Are employers obliged to provide references to new employers if these are requested?  If so, what information must the reference include? What duties apply to employers giving references?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>No. Employers are only required to provide a certificate of service confirming the period of employment and the roles that such an employee occupied in accordance with section 51 of the Employment Act.<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">What, in your opinion, are the most common difficulties faced by employers in your jurisdiction when terminating employment and how do you consider employers can mitigate these?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>In practice, employers face challenges in complying with both substantive justification and procedural fairness as outlined in items 1, 2 and 8 above, often arising in the following areas:<\/p>\n<p>a. Unsubstantiated or inconsistent reasons for termination: Employers may rely on unsubstantiated allegations of misconduct or give inconsistent or shifting reasons for termination, which undermines the validity of the decision.<\/p>\n<p>b. Termination for poor performance: Employers often face challenges where there is no structured performance management system, or where poor performance is not properly documented over time. This makes it difficult to justify termination or demonstrate that the employee was given a fair opportunity to improve.<\/p>\n<p>c. Termination on account of incapacity: Challenges arise where employers fail to demonstrate that reasonable accommodation and alternative measures were considered before termination, or where the process is not handled with the required procedural fairness and sensitivity.<\/p>\n<p>d. Misconduct and procedural lapses: Common issues include inadequate investigations into allegations such as fraud or harassment, and failure to adequately document the investigation process. Other procedural irregularities in disciplinary processes include failure to accord employees a full and fair hearing, including the right to be accompanied. Employers also frequently issue short or inadequate notices for show cause and hearings,and rely on poorly prepared or insufficient documentation.<\/p>\n<p>e. Redundancy-related challenges: These include failure to demonstrate a genuine and justified redundancy, failure to issue the requisite notices, particularly the notice of intention to declare redundancy, which must be served as outlined above. In practice, some employers seek to pay in lieu of this notice or proceed to immediately declare redundancies, which is not compliant with the law. Another common challenge is the failure to undertake any or meaningful consultations..<\/p>\n<p>To mitigate these risks, employers should implement and consistently apply clear internal policies and procedures, including performance management systems, disciplinary frameworks, and redundancy processes. Employers should also maintain proper documentation at all stages, ensure that decisions are evidence-based, and invest in capacity building for HR teams and people managers. Early engagement with legal counsel can further assist in ensuring compliance and minimising exposure.<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">Are any legal changes planned that are likely to impact the way employers in your jurisdiction approach termination of employment? If so, please describe what impact you foresee from such changes and how employers can prepare for them?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>Currently there are none.<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\r\n<div class=\"word-count-hidden\" style=\"display:none;\">Estimated word count: <span class=\"word-count\">5207<\/span><\/div>\r\n\r\n\t\t\t<\/ol>\r\n\r\n<script type=\"text\/javascript\" src=\"\/wp-content\/themes\/twentyseventeen\/src\/jquery\/components\/filter-guides.js\" async><\/script><\/div>"}},"_links":{"self":[{"href":"https:\/\/my.legal500.com\/guides\/wp-json\/wp\/v2\/comparative_guide\/137252","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/my.legal500.com\/guides\/wp-json\/wp\/v2\/comparative_guide"}],"about":[{"href":"https:\/\/my.legal500.com\/guides\/wp-json\/wp\/v2\/types\/comparative_guide"}],"wp:attachment":[{"href":"https:\/\/my.legal500.com\/guides\/wp-json\/wp\/v2\/media?parent=137252"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}