Kenya updates

Arbitration & ADR

Contributed by The Offices of Njeri Kariuki
Party misconduct and escalating arbitration costs: who's to blame?
  • Kenya
  • 27 September 2018

Section 19A of the Arbitration Act was introduced to add statutory clout to party obligations, including the need for expedition during proceedings to minimise unnecessary expenditure. Despite Section 19A's mandate that parties fully cooperate in order to expedite the arbitral process, party misconduct remains an issue. Arbitrators must ensure that all of the minutes and orders for direction, as well as any arbitral awards, reflect the fact that parties can and will be held responsible for any delays in the proceedings.


Employment & Benefits

Contributed by Iseme, Kamau & Maema Advocates
Fixed-term employment contracts and legitimate expectation for renewal
  • Kenya
  • 24 October 2018

The underlying understanding between the parties of fixed-term employment contracts is that once the fixed period has ended, the contract is automatically terminated without any further liability on the employer's part on account of unfair termination or redundancy. However, despite this apparently clear intention, Kenyan jurisprudence is awash with claims lodged by employees on the grounds that the non-renewal of such contracts amounted to unfair termination.

Constructive dismissal – novel remedy for harassed employees
  • Kenya
  • 18 April 2018

Normally, when an employee resigns, he or she is not entitled to claim damages against the employer. Indeed, if the employee resigns without giving the requisite contractual notice, the employer is entitled to recover the pay in lieu of notice through legal proceedings and there is usually no valid defence to such a claim. However, constructive dismissal is treated as a dismissal by the employer and the employee is entitled to damages for unfair termination.

Why Kenya needs law on transfer of employees
  • Kenya
  • 28 March 2018

Since 2007 Kenya has had one of the most robust labour law regimes in the world. The Employment and Labour Relations Court is famed worldwide for its pro-employee ideology and is known to bend over backwards to ensure that employees who call on it do not go home empty handed. It is therefore surprising that Kenya has not enacted legislation to regulate the seamless transfer of employees from one company to another following a merger or acquisition.

Why 'you're fired!' is no longer law
  • Kenya
  • 14 March 2018

For a termination to be lawful, the employer must have a valid reason and adopt a fair termination process. Further, the reasons must be given before the termination takes place. The law does not require that the employee accept the reasons given, but if the employee disputes their validity, he or she could challenge the termination on grounds of unfairness. As it is unrealistic to expect an employee facing dismissal to accept the reasons given, Parliament should reconsider this requirement.

Restrictive covenants in employment contracts
  • Kenya
  • 21 February 2018

The validity and enforceability of restrictive covenants during the employment period is usually not debatable. However, what frequently results in litigation is whether and to what extent these restrictive covenants are enforceable after the termination of employment. For a restrictive covenant to stand, the employer must demonstrate that it has a legitimate proprietary interest and that the intention is not merely to punish the employee.