Could you please tell me all the Laws which relate to employment in Kenya?
The labour law in Kenya is not based on a comprehensive labour code, but rather it is derived from a variety of sources for example legal or extra-legal.
- Constitution
The constitution is the supreme law of the land and/or is the ground norm. The supremacy of the constitution is clearly elaborated at Article 2 of the same. The Constitution also makes specific provisions for labour relations in Kenya.
The Bill of Rights under Article 41 Paragraph 2 of the Constitution provides that every worker has a right to fair remuneration, reasonable working conditions, to form, join or participate in the activities and programs of trade unions and to go on strike.
Paragraph 3 of the same Article provides for the rights of employers besides sub-articles 4 and 5 provides for both rights of employers and trade unions.
The Constitution of Kenya also provides for equality and freedom from discrimination. It states that women and men have the right to equal treatment, including the right to equal opportunities in political, economic, cultural and social spheres.
Article 28 read together with Article 30 provides for human dignity, freedom from slavery, servitude and forced labour which are the core principles of labour law.
Furthermore, Article 162 (2) established Employment and Labour Relations Court with exclusive jurisdiction to determine and settle all labour disputes.
- Statutes- Labour Legislations
Statutes are the main sources of labour law in Kenya. Firstly, before 2007, core labour legislations on social security included the following;
National Hospital Insurance Fund Act, Cap 25
Industrial Training Act, Cap 237
National Social Security Fund Act, Cap 258
Retirement Benefits Act 1997 amended Retirement Benefits(Amendment) Act 1998
However major reforms were made in 2007 hence resulting in the enactment of the following laws to govern labour relations and practice.
- The Employment Act, 2007- the purpose of the Act is to state the fundamental rights of employees, to provide for basic conditions of employment of employees. It also regulates the employment of children and provides for other matters related to these issues. It repealed the then Employment Act cap 226, Laws of Kenya.
- Employment and Labour Relations Court Act- this was previously known as the industrial court act but was later renamed the ELRC pursuant to the Statute Law (Miscellaneous Amendments Act, 2014 published in the Special Gazette Supplement No. 160 (Acts no. 18 of 2014). The Act was enacted in accordance with 162 (2) of the Constitution. It sets out the exclusive jurisdiction, composition, objectives and procedure of the ELRC.
- The Labour Relations Act 2007- this Act provides for the consolidation of the law relation to trade unions and trade disputes. It provides for the registration, regulation, management and democratization of trade unions and employers organization or federations, to promote sound labour relations through the protection and promotion of freedom of association. It repealed the Trade Unions Act (cap 233) and the Trade Disputes (234).
- The Labour Institutions Act 2007- the act provide for the regulation to establish labour institutions, to provide for their functions, powers and duties. The Act provide for the National Labour Board, Committee of Inquiry, Wages Council and Employment Agencies.
- The Occupational Safety and Health Act 2007- the purpose of this Act is to provide for the safety, health and welfare of workers and all persons lawfully present at the work places and to provide for the establishment of the National Council of Occupational Safety and Health. It replaced the Factories and Other Places of Work Act (Cap 514).
The other employment law legislations are the Retirement Benefits Act 1997, the Work Injury Act 2007, Pensions Act Cap 189 Laws of Kenya, the Bankruptcy Act (see sections 38 & 39), the HIV and AIDS Prevention and Control Act of 2006 (see sections 7, 13 & 31) and the Persons with Disabilities Act No. 14 of 2003 (see section 12-17).
- The Law of Contract
A contract is a legal document that enhances the exchange of good and services between individual and groups. In this text, we are referring to the contract of service. It is a legally binding and enforceable agreement between two parties whereby each party undertakes specific obligations and enjoys specific rights conferred by that agreement.
A contract is legal when the parties executed it by their free consent. It can therefore be vitiated by mistake, fraud or undue influence.
The Employment Act 2007 recognizes both oral and written contracts at section 8. However, section 9 (1) provides that the following contracts must be in writing
A contract of service for a period of three months or more
A contract of service for the performance of any specified work which could not be reasonably expected to be completed within 3 months.
- Common Law and Customs
This is a branch of law that is derived from judicial decisions and precedents. There are forms of legal principles such as the doctrine of stare decisis which the judges have used over the years to develop common law. The courts have applied people’s customs over the years to make legal decisions hence taking legal effects.
There is also common law such as the employers liabilities where employers are held liable for the actions of their employees and other forms of torts. There also civil liabilities for industrial accidents and for strikes and other forms of industrial actions. Common law also gives certain implied duties of the parties to the employment contract. Common law therefore is an important source of employment law in that it is still majorly relied by our courts today.
- International Law
International law is a relevant source of employment law. Before the promulgation of the constitution of Kenya 2010, Kenya was a dualist state therefore, international law did not form part of the laws of Kenya unless or until it was domesticated by the parliament. However, by virtue of article 2 (5) and (6) of the constitution, Kenya has become a partly monist state. As such, all international law and conventions that are ratified by Kenya will automatically form part of the laws of Kenya.
Kenya has ratified 49 conventions of the International Labour Organizations (ILO). Amongst them are the following;
- Convention No. 29 of on Forced Labour and Compulsory Labour
- Convention No. 100 on Equal Remuneration For Work Equal Value
- Convention No. 105 on Abolition of Forced Labour
- Convention No. 111 on Discrimination of Employment and Occupation
- Convention No. 138 on Minimum Age of Employment
- Convention No. 182 on Eradication of Worst Forms of Child Labour
- Convention No. 98 on Application of principles of Rights to Organize and Bargain in Collective
The provisions of the International Labour Organization Conventions are almost similar to those the Employment Act of 2007.
Hope this helps. If you have more queries, do not hesitate to ask more here.