The Data Protection Act of 2019 (DPA) is an extensive legislation that regulates the collection, processing and storage of personal data by the private and government sector. This summary outlines the key features, including obligations of data controllers and processors and mandatory registration and renewal.
Data controller refers to an entity or individual that determines the purpose and means of processing of personal data. If your company or organisation determines the ‘why’ and ‘how’ of personal data processing, it is the data controller.
A data processor is an entity or individual which processes personal data on behalf of the data controller.
Strengthening Contracts of Service (Section 9)
Section 9 of the Employment Act requires contracts of service of three months or more to be in writing. The written contract must be prepared by the employer and accepted by the employee through signature or thumbprint. The provision is therefore central to ensuring clarity on the terms governing an employment relationship.
A significant recruitment-related change was introduced through the Employment (Amendment) Act, 2022. An employer may not require an applicant to submit a clearance or compliance certificate merely as part of the recruitment process unless the employer intends to enter into a contract of service with the applicant. An exception applies to applicants for State office, who may be required to provide the certificates at the relevant stage of the recruitment or approval process.
Where an employer intends to enter into a written contract of service, the employer may, in compliance with Chapter Six of the Constitution, request mandatory clearance certificates. The employer may withdraw an offer where the applicant does not satisfy the applicable requirements. Relevant public entities are required to issue or reject applications for the relevant clearance or compliance certificates within seven days and may not charge a fee for their issuance under section 9.
The practical effect is that employers should review recruitment checklists and avoid requiring statutory clearance certificates prematurely. Applicants should ordinarily only be required to obtain such certificates once the employer has reached the stage of intending to enter into a contract, subject to the statutory exception for State offices.
Pre-Adoptive Leave and Recognition of Diverse Family Structures
Pre-adoptive leave is provided for under section 29A of the Employment Act. The entitlement was introduced by the Employment (Amendment) Act, 2021, rather than by a 2024 amendment. Where, pursuant to the Children Act, a child is placed in the continuous care and control of an employee, the employee is entitled to one month’s pre-adoptive leave with full pay from the date of placement.
An eligible employee is required to notify the employer in writing at least fourteen days before the placement of the child. The notice is accompanied by documentation evidencing the intended placement, including the custody agreement and exit certificate. The provision therefore gives employees time to adjust to the responsibilities arising from adoption while providing employers with reasonable notice.
Employers should ensure that HR policies expressly recognise pre-adoptive leave and that HR personnel understand the documentary and notice requirements. The provision is an important recognition of adoption as a lawful route to parenthood and forms part of the broader family-related protections available in the workplace.
Minimum Wage Adjustment
The Regulation of Wages (General) (Amendment) Order, 2024, Legal Notice No. 164 of 2024, introduced a 6% adjustment to the minimum wage rates with effect from 1 November 2024. The applicable minimum wage depends on the occupation and geographical area; it is therefore important not to treat a single figure as the universal minimum wage for all workers.
For example, the Order adjusted the minimum wage applicable to general labourers in specified urban areas and in other areas. Employers should consult the applicable wage category and locality in the Order when reviewing remuneration rather than relying on a general headline figure.
The adjustment has practical consequences for payroll administration. Employers should audit salaries against the applicable statutory minimums, review housing arrangements and allowances where applicable, and ensure that payroll records reflect the correct statutory rates. Employees, on the other hand, have a statutory benchmark against which remuneration can be assessed.
Social Health Insurance Act Amendments
The transition from NHIF to the Social Health Insurance Fund (SHIF) arises principally from the Social Health Insurance Act, 2023, supported by regulations issued in 2024. It should therefore not be described simply as an amendment to the Employment Act.
For salaried employees, the Social Health Insurance Regulations provide for a monthly contribution of 2.75% of gross salary or wages, subject to the statutory framework. Employers are responsible for deducting and remitting the employee contribution to the Social Health Authority within the prescribed period. The system is intended to support a broader healthcare financing framework administered through the Social Health Authority.
The transition has significant payroll and HR implications. Employers must ensure accurate employee registration, correct deductions and timely remittance, while also communicating changes clearly to employees. Because the implementation of SHIF has been subject to ongoing litigation and regulatory developments, employers should ensure that their payroll practices reflect the law, regulations and any applicable court orders in force at the time.
The legal position should also be presented with appropriate caution. The courts have considered challenges concerning the constitutionality and implementation of the SHIF framework, including the contribution structure. A website article should therefore avoid presenting disputed issues as finally settled where litigation remains pending.
Redundancy and Termination Rules
The Employment Act, 2007 continues to provide the principal framework for termination and redundancy. Section 40 sets out mandatory conditions for termination on account of redundancy, while sections 41, 43 and 45 address procedural fairness, proof of reasons and unfair termination respectively. Section 49 provides the principal remedies available where termination is found to have been unfair.
In a redundancy exercise, an employer must give the prescribed one-month notice to the affected employee or trade union, as applicable, and the labour officer. The employer must also have due regard to seniority in time and to the skill, ability and reliability of employees in the affected class when applying the selection criteria. Other statutory obligations include payment of accrued leave, notice or pay in lieu of notice, and severance pay of not less than fifteen days’ pay for each completed year of service.
Importantly, redundancy is not simply a termination labelled as such. It should arise from a genuine operational, economic, technological, structural or similar need, and the employer must be able to demonstrate both substantive justification and procedural compliance.
Recent decisions continue to emphasise the importance of consultation and objective selection criteria. In Mijengo Investments Limited v Oduor [2024] KEELRC 2850 (KLR), the Court considered the absence of evidence of consultative meetings and held that the redundancy process had departed from the statutory standards. Similarly, recent decisions have stressed that an employer should be able to demonstrate the criteria used to select employees for redundancy and that the criteria were objectively and fairly applied.
For ordinary disciplinary termination, section 41 requires the employer to explain the reason for the contemplated termination in a language understood by the employee, allow the employee to be accompanied by a colleague or union representative where applicable, and hear and consider the employee’s representations before making a decision. The courts continue to treat procedural fairness and substantive justification as distinct but complementary requirements.
Employers should therefore maintain proper records of notices, consultations, selection criteria, disciplinary correspondence, hearings and decisions. Good documentation is not merely an administrative exercise.
Procedural Aspects: Instituting Employment Suits and Appeals
Employment disputes are principally determined by the Employment and Labour Relations Court (ELRC), subject to the jurisdiction conferred by law. The Employment and Labour Relations Court (Procedure) Rules, 2024, Legal Notice No. 133 of 2024, provide the procedural framework for proceedings before the Court.
1. Instituting a Claim
A claimant commences proceedings by filing a statement of claim setting out the parties, material facts and grounds of the claim, the employment or labour rights alleged to have been violated, the legal provisions relied upon and the relief sought. The Rules also require the claimant to address whether there has been any previous or pending suit concerning the same subject matter. Where conciliation has not taken place, the statement of claim is accompanied by an affidavit explaining why conciliation has not taken place.
Relevant supporting material may include the employment contract, payslips or payroll records, termination or redundancy correspondence, disciplinary records, HR policies, collective bargaining agreements, witness statements and other documents relevant to the dispute.
2. Employer’s Response
The employer responds to the claim in accordance with the Rules, addressing the allegations and setting out its factual and legal position. The employer should preserve and produce relevant employment records, including attendance records, performance documentation, disciplinary correspondence, payroll records and evidence of compliance with applicable HR procedures.
3. Hearing and Determination
The Court may issue directions on the filing and exchange of pleadings, witness statements and documentary evidence. The matter may proceed to hearing, where witnesses may give oral evidence and be cross-examined. The Court may grant appropriate remedies under section 49 of the Employment Act, including compensation and, in appropriate circumstances, reinstatement or re-engagement.
4. Appeals Process
The 2024 Rules should be distinguished from the procedure for appeals from the ELRC to the Court of Appeal. Under the ELRC Procedure Rules, appeals to the ELRC from bodies within its appellate jurisdiction are governed by Part III of the Rules. An appeal from a judgment of the ELRC to the Court of Appeal is governed principally by the Court of Appeal Rules and the relevant statutory framework, rather than by describing a Court of Appeal appeal as being filed using an ELRC Form 3.
Where an appeal is contemplated, practitioners should identify the correct appellate jurisdiction, applicable notice and memorandum requirements, the relevant time limits, and the documents required for the record of appeal. Where necessary, an application for extension of time should be made promptly and supported by sufficient cause.
Practical Compliance Checklist for Employers
- Review employment contracts and ensure statutory particulars are properly documented.
- Review recruitment processes to ensure clearance and compliance certificates are requested only at the legally appropriate stage.
- Update HR policies to expressly provide for pre-adoptive leave and other statutory family-related leave entitlements.
- Audit payroll against the applicable minimum wage rates and the relevant geographical and occupational categories.
- Review payroll systems for SHIF deductions and remittances and monitor changes to the applicable regulations and court orders.
- Before implementing redundancy, document the operational reason, issue the prescribed notices, consult meaningfully, apply an objective selection criterion and calculate terminal dues correctly.
- For disciplinary termination, ensure that the employee receives notice of the allegations, an opportunity to be heard and an opportunity for representation in accordance with section 41.
- Maintain complete HR records, including contracts, leave records, payslips, disciplinary records, redundancy notices, consultation records and terminal dues calculations.
- Regularly review HR policies against legislative and judicial developments.
Conclusion
Kenya’s employment law is best understood as a continuing framework that has developed through successive amendments, regulations and judicial decisions rather than as a single “new Employment Act”. The reforms considered above demonstrate an increasing emphasis on transparent recruitment, family-related protections, statutory wage compliance, social health insurance and fair procedures in termination and redundancy.
For employers, the practical lesson is clear: legal compliance should be integrated into recruitment, contracting, payroll, HR policy and termination processes. Regular compliance audits, proper documentation and timely legal review can reduce exposure to employment disputes while supporting fair and lawful workplace practices.