Employment Contracts

An employment contract is the agreement between an employer and an employee that sets out the terms and conditions of the employment relationship. In Kenya, employment contracts are governed by the Employment Act, 2007, which requires under section 10 that every contract of service for more than three months be in writing, and which specifies the minimum terms that must be included — including the name of the employer and employee, the job description, the date of commencement, the place of work, the hours of work, the remuneration, and the leave entitlement. A failure to provide a written contract does not invalidate the employment relationship, but it exposes the employer to significant legal risk.

This area covers the drafting and review of all types of employment agreements. Advocates prepare permanent (open-ended) contracts, fixed-term contracts, probationary contracts, casual employment contracts, and piece-rate contracts — each tailored to the specific nature of the engagement and the requirements of the Employment Act. Advocates ensure that every contract includes the mandatory terms under section 10, and they add the provisions that are essential for managing the employment relationship effectively: the duties and responsibilities of the employee, the performance expectations, the confidentiality obligations, the intellectual property assignment, the post-termination restrictions, and the dispute resolution mechanism.

Advocates draft workplace policies and employee handbooks that complement the employment contract. A well-drafted handbook covers the code of conduct, the grievance procedure, the disciplinary procedure, the leave policy, the remuneration and benefits policy, the health and safety policy, the equal opportunity and anti-harassment policy, the data protection policy, the social media policy, and the remote working policy. Advocates ensure that every policy is consistent with the Employment Act and the Constitution, and that the disciplinary and grievance procedures comply with the section 41 requirements for fair hearings.

Advocates also draft specialised contracts for senior executives — including managing directors, chief financial officers, and other C-suite roles — where the terms go beyond the statutory minimum to address issues such as performance bonuses, share options, company cars, club memberships, garden leave, and golden parachutes. Advocates negotiate these contracts on behalf of both employers and executives, and they bring a commercial perspective to the negotiation of executive compensation.

For employers with international staff, they prepare expatriate employment contracts that address immigration compliance, housing allowances, education allowances, home leave, tax equalisation, and the interaction between the Kenyan employment contract and the contract in the home country. Advocates also handle the secondment agreements that govern the temporary assignment of an employee from one entity in a group to another.

Advocates review existing employment contracts and policies for compliance with changes in the law — including amendments to the Employment Act, new regulations under the Data Protection Act, and evolving jurisprudence from the Employment and Labour Relations Court. Advocates recommend and implement updates to ensure that the employer's documentation remains legally compliant and commercially effective.