COUNTRY

Written Agreements

In Kenya, employment contracts can be oral or written. Written contracts are only required if the employment relationship is 3 months or longer.

The following information must be outlined in a written labor agreement supplied to an employee within 2 months of the employment start date:

• Name, age, permanent address, and sex of the employee
• Name of employer
• Employment start date
• Job description
• Form and duration of the contract
• Place and hours of work
• Salary, wage rate, and details of any benefits
• Pay frequency

Employers can include non-compete or non-solicitation clauses in employment contracts. As per the Contracts in Restraint of Trade Act, the High Court is empowered to declare a provision or covenant void if it determines, considering the nature of the profession, trade, business, or occupation involved, as well as the specified duration, geographical scope, and all relevant circumstances, that the provision or covenant is unreasonable. This unreasonableness may stem from it providing excessive protection to the party it favors beyond what is necessary or if it is detrimental to the public interest.

Oral Agreements

In Kenya, oral contracts are permitted if the duration of an employment relationship is anticipated to be less than 3 months. A written statement must be provided to the employee within 2 months of the employment start date.

Implied Agreements

Kenya's Employment Act includes in its definition of a "contract of service" an implied contract to employ an individual for a period of time (this includes apprenticeship contracts).

Kenyan caselaw may indicate under what circumstances an employment contract may be implied.

In Kenya, the standard workweek cannot exceed 52 hours over 6 working days. For persons employed in night work, weekly working hours cannot exceed 60. All employees are entitled to at least 1 day of rest every 7 workdays.

January 1 (New Year’s Day); Good Friday (date variable); Easter Monday (date variable); May 1 (Labour Day); June 1 (Madaraka Day); Eid al-Fitr (End of Ramadan); October 10 (Moi Day); October 20 (Mashujaa Day, formerly Kenyatta Day); December 12 (Jamhuri Day); December 25 (Christmas Day); December 26 (Boxing Day); Eid al-Adha (TBD, for Muslims); Diwali (TBD, for Hindus).

Under Kenya’s Employment Act of 2007, all employees are entitled to at least 21 days of annual leave for every 12 months of continuous service remunerated at the employee’s full, regular pay rate. Employees whose contracts of employment are terminated before they reach a period of 12 months of consecutive service accumulate annual leave based on the rate of 1.75 days of leave per month of continuous employment. Taking full maternity leave in a year forfeits an employee’s annual leave.

Leave days carried forward to the next year may not exceed 10, which means that an employee must take a minimum of 11 days off from work in the same year if they want to get an extra 10 days off in the latter year. If an employee cannot utilize leave days because of an extra workload, the employer must provide remuneration for unused leave days.

Employees who have worked for the same employer for 2 continuous months become entitled to a minimum of 14 days' sick leave. The first 7 days will be remunerated at a full pay rate and the remaining days at a half pay rate. Employees must present a valid certificate from a medical professional to claim sick leave.

Female employees are entitled to 3 months of maternity leave with full pay. Upon agreement with their employer, they may extend their maternity leave beyond the allocated 3 months should complications arise during or after childbirth. The employee must provide the employer with at least 7 days written notice stating the start date of their maternity leave and the date of return to work.

Employers are prohibited from dismissing employees on the grounds of pregnancy.

Male employees are entitled to 2 weeks of paternity leave fully paid by their employer.

Minimum Wage

The current minimum wage rates range from KES 8,596.494 (Kenyan shillings) to KES 36,360.92 per month and differ based on industry, job grade, and geographic region.

Employers' failure to pay the statutory minimum wage is considered an offense, punishable by a fine of up to KES 100,000 and imprisonment for 2 years.

According to the Employment Act of Kenya, employers are required to pay wages as follows:

• In the case of a casual employee, at the end of the day
• In the case of an employee employed for a period of more than a day but not exceeding 1 month, at the end of that period
• In the case of an employee employed for a period exceeding 1 month, at the end of each month or part thereof
• In the case of an employee employed for an indefinite period or on a journey, at the expiration of each month or of such period, whichever date is the earlier, and on the completion of the journey, respectively

Overtime, Holiday & Vacation Pay

Employees who work beyond the regular hours scheduled per week are eligible for overtime pay at 150% of their normal pay rate.

Employees who work on nationally recognized public holidays or their weekly rest days are considered to be working overtime and are eligible for a pay rate of 200% of their normal pay rate.

The employer fully pays annual leave.

Notice Period

The labor law delineates the types of notices required for different employment contracts. The notice must be given in writing in all cases, but an agreement between employees and employers can increase its duration.

There is also a provision for payment in lieu of notice, which is permitted for terminated contracts with wages paid in intervals over 1 month. In this case, the employer must pay the terminated employee the amount they would have earned during the notice period before termination.

Employers are not required to give employees a notice period if the employee is dismissed for gross misconduct.

Severance Benefits

Kenya's Employment Act dictates that statutory severance benefit is paid only when an employee is dismissed for redundancy, and the employee must have been employed for 12 months. This severance pay rate may not be less than 15 days for each year of the employee's continuous service.

Pension

The National Social Security Fund (NSSF) of Kenya provides 2 types of old-age benefits: mandatory Pension Fund (for all employees) and Provident Fund (for self-employed and retired persons, voluntary coverage for employees). Contributions are made by both employees and employers to the Pension Fund in 2 tiers, depending on the level of earnings.

To be eligible for old-age benefits, an employee must be 60 years of age, and the employment must cease properly and fairly. Early retirement is possible at the age of 50 years. The pension amount depends on the total contributions paid to the Pension Fund and Provident Fund. The amount in the Pension Fund may be taken out as a lump sum or an annuity.

A social assistance old-age benefit of KES 2,000 per month is paid to citizens above 70 years of age living in poverty.

Dependents/Survivors Benefits

In Kenya, the survivors' benefit is paid to dependents, including spouses, children under 25 years of age, or parents, grandparents, and grandchildren of the deceased if the person dies before retirement age and has made at least 36 contributions to the National Social Security Fund.

The pension amount depends on the contributions made to the Pension Fund. The amount in the Provident Fund is paid as a lump sum to the survivors. A standard funeral grant is KES 10,000 (Kenyan shillings).

If an employee dies due to an injury caused by a work-related accident, compensation is paid to the dependents, and the employer shall be responsible for the funeral expenses.

Invalidity Benefits

To qualify for an invalidity pension, an individual must be assessed with a total and permanent physical or mental disability and have paid at least 36 contributions to the National Social Security Fund (NSSF). The pension amount depends on the contributions made to the Pension Fund. The amount in the Provident Fund is paid as a lump sum.

If an individual becomes disabled due to a work-related injury or experience, they are entitled to benefits covered by the employer. In case of temporary disability, benefits are 50% of his/her monthly earnings (maximum KES 540) paid 3 days after the individual’s date of the disability, up to 12 months. The maximum total temporary disability benefit is KES 240,000 (Kenyan shillings).

Individuals with a permanent disability are paid a lump sum of 96 months' worth of their earnings or the maximum benefit amount of KES 240,000, whichever amount is lower. Individuals with a partial permanent disability are entitled to a lump sum worth 60 months of their earnings or the maximum benefit of KES 240,000, whichever amount is lower.