Background Checks

Background checks are legal in Kenya but must be conducted with the informed and written consent of the job applicant.

Legal Basis:

• Article 31(c) and (d) of the Constitution of Kenya guarantees the right to privacy.
• The Data Protection Act, 2019 reinforces this by requiring employers to inform candidates and obtain consent before collecting or processing personal data.

Common Checks Include:

• Criminal records (via the Criminal Investigation Department)
• Credit history (CRB clearance)
• Academic and professional qualifications
• Employment history
• Identity verification

Verification and New Hire Reporting

Employers must register new employees with relevant government bodies:

• Kenya Revenue Authority (KRA): For PAYE (Pay As You Earn) tax deductions
• National Social Security Fund (NSSF): For pension contributions
• National Hospital Insurance Fund (NHIF): For health insurance coverage

These registrations are typically done through the iTax platform and other online portals.

Onboarding Process & Documentation

Collecting Required Documentation

Upon hiring, employers must collect and maintain the following documents:

• Signed employment contract (written if employment exceeds 3 months)
• Copy of national ID or passport
• KRA PIN certificate (for tax purposes)
• NSSF and NHIF registration numbers (for social security and health insurance)
• Bank account details (for salary payments)
• Academic and professional certificates
• Work permit (for foreign nationals)

Healthcare

Health insurance is a vital component of employee benefits in Kenya, combining mandatory public coverage with optional private plans to enhance employee well-being and satisfaction.

National Hospital Insurance Fund (NHIF)

• Mandatory Coverage: All formally employed individuals must be enrolled.
• Employer Responsibility: Employers are required to deduct and remit both the employee’s and their own contributions.
• Coverage: Includes inpatient and limited outpatient services at accredited facilities.
• Compliance: Requires accurate deductions and timely monthly remittances to avoid penalties.

Private Medical Insurance

• Supplementary Coverage: Many employers offer private health insurance to enhance benefits beyond NHIF.
• Benefits: Higher coverage limits, access to private hospitals, and additional services such as dental, optical, and maternity care.
• Cost Sharing: Typically, co-funded by employer and employee, with employers often covering the majority.
• Plan Variability: Ranges from basic inpatient-only to comprehensive packages including outpatient, last expense, and family coverage.
• Employee Expectations: Comprehensive private health insurance is highly valued and considered essential for job satisfaction and retention.

Employer Considerations

Employers must:

• Ensure NHIF compliance.
• Select private plans that align with workforce demographics, budget, and benefit expectations.
• Communicate clearly about coverage and claims processes.

Retirement

Occupational Pension Schemes

• Voluntary Employer-Sponsored Plans: Often offered as part of competitive benefits packages.
• Types:
  • Provident Funds: Lump-sum payout upon retirement.
  • Pension Schemes: Provide annuity payments over time.
• Contributions: Typically, 5–10% of basic salary from both employer and employee, though rates vary.
• Employee Value: Strong pension contributions are a key factor in attracting and retaining talent.

Administration and Compliance

Employers must:

• Appoint a registered scheme administrator.
• Ensure timely and accurate contributions.
• Clearly communicate plan details and benefits to employees.

Social Security

National Social Security Fund (NSSF) contributes to retirement funds. For more information about other retirement contributions, see above.

• Mandatory Contributions: Both employer and employee contribute a statutory percentage of pensionable earnings.
• Purpose: Provides a basic retirement income.
• Compliance: Requires accurate calculation and timely remittance of contributions.

Employment Contract Details

Kenyan law recognizes two primary types of employment contracts based on duration:

Indefinite Period Contracts:

• These contracts do not have a predetermined end date.
• Employment continues until it is lawfully terminated by either the employer or the employee.
• Termination requires proper notice or adherence to legal procedures.
• This is the most common form of employment in Kenya.

Fixed-Term Contracts:

• These are valid for a specific duration or until a particular task is completed.
• The contract ends automatically upon reaching the specified end date or task completion.
• Fixed-term contracts can be renewed, but each renewal constitutes a new contract.
• Commonly used for project-based or seasonal work.
• Must clearly state the start and end dates or define the task that determines the contract’s duration.

Essential Clauses

Kenyan employment law mandates that all written employment contracts include specific terms to ensure clarity and protect both parties. These essential clauses include:

• Full names and addresses of the employer and employee
• Date employment begins
• Job title or a clear description of duties
• Place of work
• Working hours
• Details of remuneration (e.g., wage rate, payment frequency, calculation method)
• Additional benefits (e.g., housing, medical cover)
• Terms regarding:
  • Overtime and working hours
  • Holidays and paid leave
  • Sick leave and incapacity provisions
  • Pension and social security benefits
  • Notice periods for termination
• Reference to any applicable collective bargaining agreements
• Any other legally prescribed matters

Compliance Note: Failure to include these mandatory terms may render the contract non-compliant with Kenyan labor laws, potentially exposing the employer to legal risks.

Probation Period

The probation period for employees in Kenya is up to six months. This period may be extended once, for an additional six months, but only with the employee’s agreement.

If an employer decides to terminate employment during the probation period, they must provide:

• At least seven days’ written notice, or
• Payment in lieu of notices, as stipulated by law

Visas

• Business Visas: Short-term (90 days), multiple-entry (6–12 months).
• Special Pass: Temporary work (up to 6 months).
• Permanent Residency: For investors/executives.
• East Africa Tourist Visa: Covers Kenya, Uganda, Rwanda.
• Other: Tourist, Transit, Work, Student visas.
• Application: Online via eVisa portal or at embassies. Requires passport, photos, itinerary, proof of funds, and Yellow Fever certificate.

Independent Contractors

Kenyan law distinguishes between employees and independent contractors, though the Employment Act primarily governs employee relationships.

Key Characteristics of Independent Contractors

• Work under a contract for services (not a contract of service).
• Have control over how and when work is done.
• Are not entitled to statutory employment benefits (e.g., leave, NHIF, NSSF).
• Are responsible for their own taxes and social security contributions.

Legal Considerations

• Misclassifying an employee as an independent contractor can lead to legal penalties.
• Courts may assess the nature of the relationship (control, integration, economic dependence) to determine employment status.
• Contractors are protected under general contract law, not labor law.

Paid Time Off

Employees in Kenya are entitled to a minimum of 21 working days of paid annual leave after completing 12 months of continuous service.

• Under the New Labor Law, employees become eligible for annual leave starting from the 7th month of employment.
• With the employee’s consent, annual leave may be taken in parts. However, at least 10 consecutive calendar days must be taken at one time, out of the minimum 15 calendar days of leave.

Public Holidays

Public holidays that fall on a Sunday are moved to the following Monday as a day off in lieu.

• New Year’s Day
• Good Friday
• Easter Monday
• Idd ul Fitr
• Labor Day
• Madaraka Day
• Idd ul Azha
• Moi Day
• Mashujaa Day
• Mashujaa Day Observance
• Diwali
• Jamhuri Day
• Christmas Day
• Boxing Day

Bereavement

• Employees may take compassionate leave in the event of the death of a close relative, serious illness of a family member, or other personal emergencies.
• This leave is not separately allocated by law and is typically deducted from annual leave unless otherwise provided by company policy or a collective bargaining agreement

Maternity Leave

Female employees are entitled to three months (90 days) of fully paid maternity leave.

To qualify, the employee must:

• Provide at least 7 days’ written notice before the intended leave date.
• Submit a medical certificate confirming the pregnancy and expected delivery date.

In cases of adoption, the same maternity leave provisions apply, but the notice period is extended to 14 days.

Paternity Leave

Male employees are entitled to two weeks of paid paternity leave.

• This applies to biological fathers and adoptive parents.
• A 14-day notice is required in adoption cases.

Parental Leave

Kenya labor law has no statutory parental leave (beyond maternity and paternity provisions).

Sick Leave

Employees are entitled to sick leave after completing two consecutive months of service.

Entitlement includes:

• 30 days at full pay
• Followed by 15 days at half pay
• This applies within every 12-month period of continuous employment.
• A medical certificate from a qualified health professional is required to validate all sick leave.

Termination Requirements

At this time, Vensure does not have termination requirement details available. See Notice Period section below for more information.

Notice Period

The required notice period for terminating an employment contract depends on the nature of the employment:

• During Probation: At least 7 days’ written notice or payment in lieu of notice.
• Monthly or Longer Pay Intervals: At least 28 days’ written notice or equivalent pay in lieu.
• Weekly or Fortnightly Pay: Notice must match the pay interval (e.g., 1 or 2 weeks).
• Daily Wage Workers: No notice is required; contracts may end at the close of any working day.

All notices must be in writing and explained in a language the employee understands if necessary.

Severance Pay

Severance Pay:

• Payable only in cases of redundancy.
• Calculated at 15 days’ basic pay for each completed year of service.

Service Pay:

• May be payable in other termination cases (excluding redundancy), depending on the employment contract.
• Often calculated at a similar rate to severance pay (15 days per year), unless the employee is already covered by NSSF or a registered pension scheme.

Unemployment Insurance

Kenya’s current legal framework does not provide direct unemployment compensation or insurance payments to individuals who lose their jobs. There is no legal entitlement to monthly unemployment benefits similar to those in some other countries.

Anti-Discrimination Practices

Kenyan law strictly prohibits discrimination in employment based on a wide range of protected characteristics. These protections are enshrined in both the Constitution of Kenya and the Employment Act, 2007, ensuring fairness and equality in the workplace.

Protected Characteristics Include:

• Race
• Color
• Ethnic origin
• Tribe
• Belief
• Religion
• Political opinion
• Sex
• Gender
• Marital status
• Age
• Disability
• HIV status
• Property
• Birth

Employees who believe they have been subjected to discrimination have the right to:

• File a complaint with the Labor Officer
• Seek redress through the Employment and Labor Relations Court

These mechanisms provide legal recourse and help uphold the principles of equality and dignity in the workplace.

Workplace Safety Standards

The Occupational Safety and Health Act, 2007 (OSHA) imposes comprehensive duties on employers to safeguard the health, safety, and welfare of employees and others present at the workplace.

Key Employer Responsibilities Include:

• Safe Work Systems: Establish and maintain safe methods and systems of work.
• Hazard Management: Ensure that the use, handling, storage, and transport of materials and substances are free from health risks.
• Training and Supervision: Provide adequate information, instruction, training, and supervision to ensure safety.
• Workplace Maintenance: Keep the workplace in a condition that is safe and does not pose health risks.
• Safe Access and Exit: Ensure safe entry to and exit from the workplace.
• Healthy Work Environment: Maintain a working environment that is safe and without health hazards.

Employee Responsibilities

Employees also have legal duties, including:

• Taking reasonable care for their own health and safety.
• Avoiding actions that could endanger others.
• Cooperating with the employer on all safety and health matters.

Regulatory Oversight

The Directorate of Occupational Safety and Health Services (DOSHS) is the primary enforcement body. Employers are required to:

• Register their workplaces with DOSHS.
• Comply with industry-specific safety regulations and standards.

Workers’ Compensation

The primary law governing workers’ compensation in Kenya is the Work Injury Benefits Act (WIBA), 2007, which mandates compensation for employees who suffer:

• Injuries arising out of and in the course of employment
• Occupational diseases contracted during employment

All employers are required to comply with WIBA, regardless of the size or nature of the business.

Mandatory WIBA Insurance

• Employers must obtain WIBA insurance coverage from a licensed insurer.
• This insurance covers medical expenses, temporary or permanent disability, and death benefits for employees injured at work.
• Failure to provide WIBA insurance is a legal offense and can result in penalties or prosecution.

Compensation Benefits

Under WIBA, compensation may include:

• Medical expenses: Full coverage for treatment, surgery, hospitalization, and rehabilitation.
• Temporary disability: Weekly payments during recovery.
• Permanent disability: Lump-sum compensation based on the degree of disability.
• Death benefits: Compensation to dependents, including funeral expenses.

Reporting and Claims Process

• Employers must report any workplace injury or illness to the Director of Occupational Safety and Health Services (DOSHS) within 7 days.
• Employees must notify their employer of an injury as soon as practicable.
• Claims must be filed within 12 months of the incident.

Employer Liability and Penalties

• Employers are strictly liable for workplace injuries, even if the employee was at fault (unless due to gross misconduct).
• Non-compliance with WIBA can lead to fines, imprisonment, or both.

Labor Law Sanctions

Employment Standards Violations: Employers must comply with Kenya’s labor laws regarding wages, working hours, leave entitlements, and termination procedures. Sanctions include non-compliance can lead to legal action through the Employment and Labor Relations Court, which may order compensation, reinstatement of employees, or penalties.

Discrimination and Exploitation: Kenya prohibits workplace discrimination based on gender, race, disability, or other protected characteristics. The government is actively aligning labor laws with international human rights standards to combat forced labor, child labor, and unsafe working conditions. Violators may face fines, public censure, or criminal prosecution under the Kenya Alliance 8.7 Road Map (2025–2030) initiative.

Employment of Foreign Nationals: Employers must obtain a valid work permit or special pass before hiring foreign nationals. Violations can result in fines up to KES 500,000, imprisonment for up to three years, or both.

Collective Bargaining and Social Dialogue: Kenya supports collective bargaining and social protection as part of its labor framework. Employers who undermine union rights or fail to engage in fair labor practices may face legal consequences and reputational damage.