Harrison Okeche

June 2012

Definition
Labour law refers to a body of legal rules which regulates the

relationship between: an employer and a worker

an employer and workers
employer(s) and trade union representing workers
employers organization and trade unions
the state, employers, workers, unions and employer organizations
2

SOURCES OF KENYAN
LABOUR LAW

The labour law consists of a number of legal rules

based on: The Constitution of Kenya

Legislation law laid down by an organ of the state which has
power to do so i.e. Parliament { the laws are in writing and known
as statutes or acts}
Judicial precedent (court decisions) - the previous court
judgements constitute precedents that court must follow; only
ratio decidendi (reason for judgement) creates precedent
Common law that is the law which is not legislation and law
as was applicable in England in 1st August 1897.
Custom though playing limited role it is critical
legal writing- views of legal authors are not binding but
3
persuasive to courts

THE KENYAN LABOUR

LAW
A large variety of laws (more than 20) dealing with
labour matters. The nine (9) core labour legislation are

Employment Act, 2007 (replaced Employment Act, Cap

226 and Regulation of Wages and Conditions of
Employment Act, Chapter 229)

Labour Relations Act, 2007 (replaced the Trade Unions

Act, Chapter 233 and the Trade Disputes Act, Chapter
234)

Work Injury Benefits Act, 2007 (replaced the Workmens

Compensation Act, Chapter 236)

Core

Labour Legislation

Occupational Safety and Health Act,

2007 (replaced the Factories and Other

Places of Work Act, Chapter 514)
Labour Institutions Act, 2007
National Social Security Fund Act,
Chapter 258
National Hospital Insurance Fund Act,
Chapter 255
Industrial Training Act, Chapter 237
(Revised 2011)
Retirement Benefits Act

Development of the labour law

Kenya embarked on review of its labour legislation

form 2001
New legislation consisting of five pieces of
statutes were enacted by parliament in 2007
The new legislation consisted of:
Employment Act,2007
Labour Institutions Act,2007

Labour Relations Act,2007

Work Injury Benefits Act,2007

Occupational Safety and Health Act,2007

OBJECTIVES OF LABOUR
LAW REVIEW
Domesticate ILO conventions ratified by Kenya in

fulfillment of the countrys obligation as a member

of the ILO.
Ensure that the eight (8) core ILO conventions are

adopted within the new labour laws.

Ensure employment legislation are more user

friendly.
Harmonize E. Africa Regional Labour Legislation in

readiness for the common market

THE CORE ILO

CONVENTIONS
ILO CON. 29 Forced labour ratified on 13th

January 1964
ILO CON. 98 Freedom of Association and

Collective Bargaining 13th January 1964

ILO CON. 100 Equal remuneration for work of

equal value 7th May 2001

ILO CON. 105 Abolition of forced labour 13th May

2001
8

THE CORE ILO

CONVENTIONS
ILO CON 111 Discrimination in employment 7 th

May 2001
ILO CON. 138 Minimum age of employment 9 th

April 1979
ILO CON. 182 Worst forms of child labour 7 th May

2001
Apart from the above the review exercise

incorporated a number of ILO standards and

conventions relating to human rights.

Overview of the core labour

legislation
EMPLOYMENT ACT,2007
Provides the basic terms applicable to all
employment contracts
General principles on ;
prohibition against forced labour
Discrimination in employment
Sexual harassment(20 or more employees)

Employment relationship (nature and types of

employment)
Rights of employees and obligations of employers
10

Employment Act 2007

cont..
Employment separation(termination, resignation,

dismissal, redundancy, retirement, death) and

benefits upon termination
Protection of children from worst forms of child
labour, minimum age of employment and
prosecution for contravention
Insolvency, employment records and employment
management
Dispute settlement procedure
11

General provisions of
Employment Contract
Employment contract for a period of three months

must be in writing[s 9(1)]

Employer is responsible for drawing the contract

and ensuring that the employee signify consent to

the contract by signing his name or finger print in
the presence of a witness[9(2),(3)]
Employer to explain to employee the terms in a

language understood by employee.

12

General provisions of
Employment Contract
Other Terms which may be in the form of

statement:
Entitlement to annual leave, public holiday , sick

leave , notice period , if fixed term the date of

termination of contract. [Sec.10(3) Emp.]
Pension or provident fund where applicable
Collective agreement where applicable
13

General provisions of
Employment Contract cont..
Indication if an employee is expected to work

outside Kenya for a period of more than one

month and currency of payment, additional
payment and terms and conditions on return and
while outside the country
The record of the terms must be kept for a

minimum of 5 years after termination of

employment

14

Fixed term contract

The fixed term contracts are for specified period

of employment or defined work or task.

It can be for one month or less, two, three

months or more.

Normally used for seasonal employment, project

type of work.

May be terminated on account of misconduct,

end of period, by notice or any other lawful

reason.

15

Casual Employment

Means a person the terms of whose engagement

provide for his payment at the end of each day and

who is not engaged for longer period than twenty
four hours at a time.
Where casual employee is engaged for continuous
period of 1 month or work which can not
reasonably be completed in a period amounting to
3 months or more he must be deemed to be on
monthly terms.
Is entitled to 1 paid rest day after 6 days
continuous work.
Casual employee converted to monthly terms shall
enjoy terms and condition of service others after 2
months of engagement.

16

Hours of Work
Employer to regulate the working hours of each

employee
Normal working week to consist of not more than
52 hours a week spread over six days of the week.
However persons employed on night work may

not work for more than 60 hours a week.

No person under the Age of 16 years may work for

more than 6 hours a day.

17

Overtime
Paid for any time worked in excess of the normal

weekly hours at 1.5 times the normal hourly rate.

For time work on employees rest day or public

holiday at 2 times the normal hourly rate.

Calculated at weekly hours multiplied by 52 weeks

divided by 12 months. The resultant monthly hours

is divided by the monthly wage to get hourly rate of
pay.

18

ANNUAL LEAVE.
Employee entitled to not less than 21 working days

of leave with full pay after every twelve

consecutive months service.
An employee who terminated after completion of 2
or more consecutive months of service in any
twelve leave earning period is entitled to pro-rata
leave.
Employer with the consent of an employee may
divide the leave to be taken at different intervals
provided that one of the parts is for not less than 2
working weeks uninterrupted .
Any outstanding leave must be taken within 18
months from the end of leave earning period.

19

Maternity Leave
Female employee entitled to 3 months maternity leave.
Employee must give notice in writing of at least 7 days

or a shorter period to employer as may be reasonable.

If required by employer an employee shall produce a

medical certificate as to her condition to avail the leave

from a qualified medical officer or a midwife.
Employee not to forfeit her annual leave and shall not

be disadvantaged on account of maternity leave.

20

PATERNITY LEAVE.

A male employee entitled to two weeks

paternity leave.

21

Sick Leave
After 2 months continuous service with an

employer , an employee shall be entitled to

maximum 30 days sick leave with full pay and
thereafter to a maximum of 15 sick leave days at
half pay in each 12 months continuous service.
Employee must produce certificate of incapacity
from a qualified medical practitioner.
Employee must notify or cause to be notified his
employer as soon as reason his absence.
The 12 consecutive months commence from date
of employment and the anniversary thereof.
22

Housing
Employer obliged to provide reasonable

accommodation to employees near place of work or

pay sufficient sum as rent in addition to wages.
Sufficient sum is indicated as 15% of the basic

minimum wage of the employee.

Not applicable where the salary is consolidated.

23

Provision of Water
Employer obliged to provide sufficient wholesome

water at the place of work for use by employees

and/
or
within a reasonable distance of housing

accommodation

provide by the employer.

24

Food
Where there is agreement to provide food to
employee the employer must ensure
employee is properly fed is sufficiently
supplied with cooking utensils and means of
cooking.
No liability is imposed on the employer to

provide when an employee is absent without

lawful cause.

25

Medical Attention
Employer to provide sufficient and proper medicine for

its employees during illness and if possible, medical

attendance during serious illness.
Employer to ensure he takes steps to be notified of illness

as soon as reasonable practical.

Not applicable where an employee is absent without

lawful cause or excuse, self inflicted illness or injury or

medical treatment is provided free at Government
hospital or centre.

26

Dismissal
Following reasons may lead to summary

dismissal of an employee after the employer

has followed proper procedure:-{ S.44}Emp.
Absenteeism without lawful cause or leave.
intoxication rendering a worker incapable of

performance.
Willful neglect of duty.
Use of abusive or insulting language.

27

Dismissal
Refusal to obey lawful instructions.
Employee arrested for cognizable offence punishable

by imprisonment is not within 14 days released.

Employee commits or on reasonable grounds is

suspected to have committed a criminal offence

against or to the detriment of his employer or his
employers property.
28

UNFAIR GROUNDS OF
TERMINATION
Pregnancy or reasons connected thereto.
Going on an entitled leave.
Membership or proposed membership to union.
Participation in union activities outside working

hours or with the permission of employer within

working hours.
Seeking office or becoming an official of a union.
29

Labour Relations Act, 2007

Provides for freedom of association for both employers and

workers, Formation, regulation and dissolution of trade

unions and employers organizations and federations
Collection of union dues including agency fees, and

subscriptions for employers organizations

Recognition of trade unions and Collective bargaining
Dispute resolution and adjudication through at the parties

own level, Ministry of labour , Industrial Court and ADR

30

Labour Relations Act,

2007 cont..
Strikes and lockouts, including prohibited strikes and
lockouts, Essential services (water supply services,
hospital services, air traffic control services and civil
aviation telecommunication services, fire services of the
Government and public institutions, posts authority and
local Government authorities, ferry services)
Powers of industrial court to deal with urgent applications

(recognition, redundancy without notice, essential

services)

31

Work Injury Benefits Act,

2007 cont..
Provides for compensation of all employees for work

related injury or occupational diseases

Registration of employers and insurance of all

employees against work related injury or occupational

diseases, including medical treatment, appliances and
travel (recovery of medical expenses prohibited)
Compensation of employees for occupational

accidents or diseases resulting in disablement or

death

32

Work Injury Benefits Act,

2007 cont..

Denial of compensation in the case of

injury due to deliberate and willful misconduct(unless

injury is serious-more than 40% disability or death)

employee willfully fails to disclose a medical condition

that aggravates injury or disease, Employee fails to

present himself for medical treatment

33

Work Injury Benefits

Act, 2007 cont..
Employee not to be denied compensation by

threats
Compensation not to be alienated, Maximum

compensation based on 96 months earnings

Temporary disability up to 12 months
Payment of compensation to Director within
90days from date of assessment and to injured
employee or dependants within 30 days.
34

Occupational Safety
and
Health
Act,
2007
Applies in any place where a person is at work
Purpose of the Act is to:
Secure the safety, health and welfare of persons at
work
Protect persons other than persons at work from
risks risks arising out of the activities of persons at
work
Provides for duties of occupiers (who include

employers) workers, self employed people,

suppliers, designers, importers, manufacturers
Special provisions for health and welfare of
workers, machinery, chemical and safety,

35

Labour Institutions Act,

2007
Provides for the creation and management of all
institutions dealing with labour including
The National Labour Board
Industrial Court
Committee of Inquiry
Appointment of Commissioner for Labour, Director of

Employment, Registrar and Deputy Registrars of

Industrial Court and Registrar of Trade Unions
Wages Councils and wages orders
Employment Agencies
36

National Social
Establishes the Fund
NSSF a compulsory
Security
Act
contributory social security scheme
Provides:
(cap
258)
Age benefits
Withdrawal benefits
Invalidity benefits
Survivors benefits
Emigration grants
37

National Hospital
Insurance Fund Act
Establishes
(cap
255) the NHIF, an

insurance fund which:

Caters for medical insurance
Pays for expenses incurred by
a contributor, and his or her
spouse and dependant children
38

39