Employment contracts Kenya law mandates under Section 9 of the Employment Act, 2007 that every employer provide a written contract of service to any employee engaged for three months or more. An employer who fails to provide a written contract is in breach of the Act and at a significant disadvantage if a dispute arises, because ambiguities will generally be resolved in favour of the employee. The clauses below are not optional extras; several of them reflect hard statutory minimums and maximums that a contract cannot validly contract out of, not merely good drafting practice.
1. Identification of the Parties, Commencement Date, and Probation
State the full legal names of the employer and employee, the employee’s job title and reporting line, and the commencement date. If there is a probationary period, the duration is not a matter of company policy or “established labour practice” to set as the employer pleases; Section 42(2) of the Employment Act fixes it as a hard statutory limit: a probationary period must not exceed six months, and may be extended for a further period of not more than six months with the employee’s agreement, for an aggregate maximum of twelve months. An employer that runs a probationary period beyond that aggregate ceiling, or extends it without the employee’s documented agreement, is not simply departing from best practice but is in breach of the Act. A further detail worth building into the contract explicitly: under Section 42(4), a probationary contract can be terminated by either party on as little as seven days’ notice, or seven days’ wages in lieu, a materially shorter notice period than the twenty-eight days that applies once the employee is confirmed. A contract that is silent on this distinction, or that mistakenly applies the standard twenty-eight-day notice period to a probationary termination, is giving the departing employee more than the Act actually requires, not a problem in itself, but worth being a deliberate choice rather than an oversight.
2. Job Description and Duties
Define the employee’s core duties and responsibilities with enough specificity that both parties have a shared understanding of what the role actually involves, while leaving room for reasonable evolution of the role over time through a properly worded flexibility clause rather than an exhaustive, immediately outdated list of tasks.
3. Remuneration
State the salary, payment frequency, and any allowances, including housing allowance, medical insurance, and pension contributions. State clearly whether the salary figure quoted is gross or net. Ambiguity here is one of the most common sources of employment disputes, particularly once statutory deductions are applied and the employee’s actual take-home figure does not match what they believed they had agreed to.
4. Working Hours and Leave
Specify standard working hours and leave entitlements. The Employment Act provides for a minimum of twenty-one working days of annual leave after every twelve consecutive months of service under Section 28, sick leave of not less than seven days with full pay followed by a further period with half pay under Section 30, three months’ maternity leave with full pay for female employees under Section 29, and two weeks’ paternity leave with full pay for male employees, also provided for within Section 29. None of these are negotiable minimums a contract can reduce below, though a contract can offer more generous terms than the statutory floor.
5. Confidentiality
Include a clause requiring the employee to maintain confidentiality of business information during and after employment. Define confidential information broadly to cover client lists, financial data, business strategies, and trade secrets, since a narrowly drafted definition can leave genuinely sensitive information technically outside the clause’s protection.
6. Intellectual Property Assignment
If the employee will create any IP in the course of employment, include a clause assigning all such IP to the employer. Section 31 of the Copyright Act already vests copyright in employee-created work in the employer by default, so this clause is reinforcing an existing statutory position rather than creating one from nothing, but it remains worth including explicitly for the same reason an IP assignment clause matters in a commissioning contract: it removes any argument about scope and gives a clean, documented record for due diligence purposes.
7. Employment Contracts Kenya: Restrictive Covenants
Non-compete and non-solicitation clauses are enforceable in Kenya only to the extent they are reasonable in scope, duration, and geographic reach, assessed under the common law doctrine of restraint of trade rather than under any specific Employment Act provision, since the Act itself does not regulate these clauses directly. A clause restricting an employee from soliciting the employer’s clients for twelve months within Nairobi is far more likely to be upheld than a blanket prohibition on working anywhere in the industry, since the latter is more likely to be struck down as an unreasonable restraint going beyond what is necessary to protect the employer’s legitimate business interest. The clause should be scoped to the specific role; a junior employee with no client contact and a senior client-facing executive should not be bound by identical restrictive covenants copied from the same template.
8. Disciplinary and Grievance Procedures
The Employment Act requires a fair procedure before termination. Set out the disciplinary process in the contract or an incorporated employee handbook, including the stages of the process, the employee’s right to be heard, the right to representation at a disciplinary hearing, and the categories of misconduct that may lead to summary dismissal under Section 44 of the Act.
9. Termination
State the notice period required for termination by either party. The statutory minimum for monthly-paid employees is twenty-eight days under Section 35 of the Employment Act, or payment of an equivalent amount in lieu of notice, materially longer than the seven-day notice period that applies during probation under Section 42(4). Include provisions for payment in lieu of notice, return of company property, and the circumstances in which summary dismissal is available under Section 44.
10. Employment Contracts Kenya: Dispute Resolution
Employment disputes that cannot be resolved internally are ultimately subject to the jurisdiction of the Employment and Labour Relations Court. While this is the default position regardless of what the contract says, stating it explicitly in the contract removes any ambiguity for an employee who may not otherwise know which forum actually has jurisdiction over an employment grievance.
Employment Contracts Kenya: Getting the Statutory Minimums Right
A recurring theme across these clauses is the gap between what is genuinely a hard statutory requirement and what is simply good drafting practice layered on top of the legal minimum. The probationary period cap, the leave entitlements, and the termination notice periods discussed above are not negotiable floors an employer and employee can agree to set lower; a contract that purports to reduce any of them below the statutory minimum is, to that extent, unenforceable regardless of what the employee may have signed. An employment contract template inherited from a previous HR system, or copied from an online source without local legal review, is one of the more common ways a business ends up with clauses that look professional but do not actually reflect current Kenyan statutory requirements.
Our Regulatory & Compliance practice drafts and reviews employment contracts and advises on Employment Act compliance, including the statutory probationary period limits, leave entitlements, and termination notice requirements that a contract cannot lawfully contract around. Contact us for a consultation if your current employment contracts need a compliance review against the Act’s actual statutory minimums rather than assumed best practice.
Need help drafting compliant employment contracts? Contact Employment contracts Kenya requirements are enforced through the Employment and Labour Relations Court, and non-compliant employers face exposure not only on the missing clause but on the entire relationship it governs.Clay & Associates Advocates. Book a Consultation
Related reading: Employment Disputes in Kenya
For tailored legal advice on this matter, speak with our regulatory and compliance advisory services team at Clay & Associates Advocates. We advise businesses and individuals across Kenya on Regulatory and Compliance Advisory matters from our offices at Nextgen Mall, Nairobi.
