Employment & Labour
Lawyer in Kenya —
Protecting Your Workplace Rights

Section 41 of the Employment Act requires an employer to give an employee a fair hearing before termination — specifically, the employee must be informed of the reason for the proposed dismissal and given an opportunity to respond in the presence of a fellow employee or shop-floor union representative of their choice. Failure to conduct a Section 41 hearing renders the termination procedurally unfair, even if the employer had a valid reason to dismiss. The ELRC treats procedural unfairness seriously and routinely awards compensation where this requirement was not met. This is one of the most common grounds for successful unfair dismissal claims in Kenya.

Under Section 90 of the Employment Act, employment claims must generally be filed within 3 years from the date the cause of action arose. However, for unfair termination claims, the practical window is typically shorter — courts look unfavourably at excessive delay, and evidence (witnesses, documents, email trails) becomes harder to preserve over time. If your claim involves a trade union or collective dispute, different timelines under the Labour Relations Act may apply. Our advice: contact us as soon as possible after the employment issue arises. The sooner we act, the stronger your case.

Under Section 40 of the Employment Act, an employer must: (1) notify the Labour Commissioner in writing at least one month before the redundancy, (2) inform and consult with the affected employees or their trade union, (3) apply fair and objective selection criteria — LIFO (Last In, First Out) unless the employer can justify an alternative, (4) pay severance of at least 15 days' basic pay for each completed year of service, plus all terminal benefits. The employer must also consider whether redundant employees can be redeployed to other roles. A redundancy that skips any of these steps is treated as an unfair termination at the ELRC. We guide employers through every step to ensure full compliance.

Restraint of trade clauses (non-compete agreements) are enforceable in Kenya, but only if they are reasonable in scope, duration and geographical area. Kenyan courts will not enforce a restraint clause that is excessively broad — for example, preventing an employee from working in any capacity in the entire country for 5 years. The employer must show that the restraint protects a legitimate business interest (trade secrets, client relationships, confidential information) and is no wider than necessary. We advise employers on drafting enforceable restraint clauses — and we help employees challenge unreasonable ones.

Act immediately. You typically have 14–21 days to file a response (memorandum of response) after being served with a claim at the ELRC. Failure to respond within the deadline can result in an interlocutory judgment being entered against you — meaning the court assumes the employee's version is correct. Contact us the day you are served. We will: review the claim and assess exposure, prepare and file the memorandum of response within the statutory deadline, gather employment records and witness evidence, and develop a defence strategy — whether that's defending in full, pursuing mediation or negotiating a settlement to contain cost.