The Persons with Disabilities Act, 2025: Kenya’s New 5% Employment Quota and Reasonable Accommodation Duty

Kenya’s Persons with Disabilities Act, 2025 came into force on 27 May 2025 and replaced the Persons with Disabilities Act of 2003 in its entirety. For employers, the most consequential change is section 21: any employer with at least twenty employees must now reserve at least five percent of direct employment opportunities for persons with disabilities, on top of a set of non-discrimination and workplace-accommodation duties that apply regardless of headcount. Unlike some comparable quota regimes elsewhere, the Act contains no exemption or waiver mechanism for an employer that cannot meet the threshold. Sixteen months after commencement, many Kenyan employers are still operating as though the 2003 Act’s lighter-touch approach remains in force.

The Five Percent Quota and Who It Binds

Section 21(2)(a) requires that “where an employer has at least twenty employees, [the employer shall] reserve at least five per cent direct employment opportunities for persons with disabilities to secure employment.” The obligation is not limited to private employers. Sections 4(f) and 5(1)(e) impose a parallel duty on national and county government entities to ensure at least five percent of employment positions are filled by persons with disabilities. Read together, this puts a statutory floor under disability employment across both the public and private sectors, and the twenty-employee threshold is the only carve-out the Act provides for the private-sector quota. There is no minimum-revenue exemption, no phased implementation period, and no provision allowing an employer to pay a levy instead of meeting the quota, a mechanism some other jurisdictions use, which is not part of Kenya’s regime.

Non-Discrimination and a Specific Bar on Disability Testing

Section 21(1) prohibits discrimination against a person with disability “in job application procedures, hiring, advancement and other terms, conditions, and privileges of employment.” Section 21(2)(c) repeats this specifically for the recruitment stage. More unusually, section 21(2)(d) bars an employer from conducting “any test or examination to establish whether an applicant is a person with a disability or as to the nature or severity of the person’s disability.” This goes beyond a general non-discrimination principle: it is a specific prohibition on pre-employment or in-employment disability screening, and an employer’s existing pre-employment medical examination protocols should be reviewed against it, since a medical questionnaire or examination that probes for disability status or severity, even incidentally, could fall foul of this provision regardless of the employer’s intent.

The Reasonable Accommodation Duty

Section 21(2)(e) requires every employer to “carry out appropriate modifications in their work premises to accommodate the employment of persons with disabilities.” Section 2 defines “reasonable accommodation” as “necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden, where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms,” language that tracks the UN Convention on the Rights of Persons with Disabilities rather than inventing a Kenya-specific standard. “Disability” itself is defined broadly in section 2 to include “any physical, sensory, mental, psychological or other impairment, condition or illness that has or is perceived to have a substantial or long-term effect on an individual’s ability to carry out ordinary day to day activities,” a definition wide enough to capture conditions an employer might not immediately think of as disabilities. The Act does not set a monetary or proportional cap on what counts as a “disproportionate or undue burden,” leaving that judgment to be made case by case, most likely eventually by the Employment and Labour Relations Court.

Dismissal and Redeployment Protection

Section 22 separately protects an employee who already holds a job and then acquires a disability, or whose existing disability becomes more limiting. It provides that “no person with disability shall be dismissed or suffer any reduction in rank on the grounds of disability, acquiring any disability, or any consequences thereof.” Where such an employee is “placed under undue stress or disadvantage in the usual course of employment as a result of the disability,” the Act entitles them to “a position at the same rank with adequate support,” or redeployment “to another post with the same pay scale and service.” If no suitable post is immediately available, the employee is to be “kept on a supernumerary post until a suitable post is available or he attains the age of retirement, whichever is earlier.” This is a materially stronger job-security protection than ordinary unfair-dismissal principles under the Employment Act provide, and it applies independently of the twenty-employee quota threshold, so it binds even small employers.

What Happens If an Employer Gets This Wrong

Section 62(1) creates a criminal offence: anyone who “wilfully and without any lawful justification treats a person with disability in any manner resulting in the contravention of Article 27(4) and (5) of the Constitution,” Kenya’s constitutional equality and non-discrimination provisions, “commits an offence and shall upon conviction, be liable to a fine not exceeding two million shillings or imprisonment not exceeding two years or both.” Section 62(2) specifies that this covers, among other things, unjustified denial of employment and failure to provide reasonable accommodation. This is a criminal, not merely civil, exposure, distinct from and additional to any unfair-dismissal or discrimination claim an affected employee might separately bring before the Employment and Labour Relations Court.