Employment Contracts in Kenya: 10 Clauses Every Employer Must Include

Employment contracts in Kenya are governed by section 9 of the Employment Act, 2007, which requires a contract of service to be in writing where it runs for the equivalent of three months or more in aggregate, or covers specified work that could not reasonably be completed within that time. The employer is responsible for causing the contract to be drawn up. The clauses below are not optional extras; several reflect statutory minimums that a contract cannot go below, because Parts V and VI of the Act constitute basic minimum terms of employment (section 26(1)).

1. Parties, Commencement Date and Probation

Identify the parties, the role and reporting line, and the commencement date. If there is a probationary period, its length is fixed by statute. Under section 42(2) a probationary period must not be more than six months, but it may be extended for a further period of not more than six months with the employee’s agreement, and section 42(3) bars an employer from using a probationary contract beyond that aggregate. Under section 42(4), either party may end a probationary contract on not less than seven days’ notice, or the employer may pay seven days’ wages in lieu. That is shorter than the notice that applies after confirmation, so state it deliberately.

2. Job Description and Duties

Define the core duties with enough specificity that both sides share an understanding of the role, and include a flexibility clause so the role can evolve without an exhaustive, quickly outdated list of tasks.

3. Remuneration

State the salary, payment frequency and any allowances, including housing allowance, medical insurance and pension contributions, and say clearly whether the salary quoted is gross or net. Ambiguity here is a common source of disputes once statutory deductions reduce the take-home figure.

4. Working Hours and Leave

Specify standard hours and leave. The Employment Act provides for at least twenty-one working days of annual leave with full pay after every twelve consecutive months of service (section 28); three months’ maternity leave with full pay (section 29(1)); two weeks’ paternity leave with full pay (section 29(8)); and, after two consecutive months of service, sick leave of not less than seven days with full pay followed by seven days with half pay in each twelve-month period, on production of a medical certificate (section 30). A contract may offer more generous terms but not less.

5. Confidentiality

Require the employee to keep business information confidential during and after employment. Define confidential information broadly to cover client lists, financial data, strategies and trade secrets, since a narrow definition can leave sensitive information outside the clause.

6. Intellectual Property Assignment

If the employee will create intellectual property in the course of employment, include a clause assigning it to the employer. Under section 31(1) of the Copyright Act, 2001, copyright initially vests in the author, but a work made in the course of employment under a contract of service is deemed transferred to the employer, subject to any agreement between the parties excluding or limiting the transfer. An express clause removes any argument about scope and gives a clean record for due diligence.

7. Employment Contracts in Kenya: Restrictive Covenants

The Employment Act does not regulate non-compete and non-solicitation clauses directly. Courts generally assess them under the common law doctrine of restraint of trade, so they are enforceable only to the extent they are reasonable in scope, duration and geographic reach and protect a legitimate business interest. A twelve-month restriction on soliciting the employer’s clients is far more defensible than a blanket bar on working anywhere in the industry. Scope the clause to the role; a junior employee with no client contact and a senior client-facing executive should not carry identical covenants.

8. Disciplinary and Grievance Procedures

Section 41 requires an employer, before terminating for misconduct, poor performance or physical incapacity, to explain the reason to the employee and hear their representations, and the employee may be accompanied by a colleague or shop floor union representative. Set the process out in the contract or an incorporated employee handbook, together with the categories of misconduct that may justify summary dismissal under section 44.

9. Termination

State the notice period for each party. For a contract paying wages or salary at intervals of one month or more, section 35(1)(c) deems it terminable by either party at the end of twenty-eight days following written notice, unless the contract provides otherwise as the section allows. Include payment in lieu of notice (section 36), return of company property and the circumstances in which summary dismissal is available.

10. Dispute Resolution

Employment disputes that cannot be resolved internally fall within the jurisdiction of the Employment and Labour Relations Court. Stating this in the contract, and any internal escalation steps, removes ambiguity for an employee who may not know which forum applies. See our guide to employment disputes in Kenya.

Frequently asked questions

This article is general information on Kenyan law as at its publication date, not legal advice. Reading it does not create an advocate and client relationship.