The Salient Features of the Employment Act, 2007

 

The Salient Features of the Employment Act, 2007

The Employment Act, 2007 (also known as the Chapter 226 of the Laws of Kenya) repealed the former Employment Act and the Regulation of Wages and Conditions of Employment Act Chapter 229 of the Laws of Kenya.

This Act, whose commencement date was 2^nd June, 2008, provides for general terms and conditions of employment in Kenya and applies to both domestic and foreign contracts of employment.

The following are the main features of the Employment Act, 2007.

1.                Section 5 (3) of the Act  provides that  no employer shall discriminate, directly or indirectly, against any employee or prospective employee or harass an employee or prospective employee on the ground of race, colour, race, language, religion, political or other opinion, nationality, ethnic or social origin, disability, pregnancy, mental or HIV status or in respect of recruitment, training, promotion, terms and conditions of employment, termination of employment or other matter  arising out of the employment. Further, subsection (4) thereof provides that an employer shall pay his employees equal remuneration for work of equal value.  It should be noted that any employer who violates this provision may be prosecuted for a criminal offence under subsection (5) thereof.

2.                Section 6 of the Act outlaws all forms of sexual harassment at places of works. This provision require every employer to take steps to ensure that no employee is subjected to sexual harassment of any form and take disciplinary measures as deemed appropriate against any of his employees who subjects another employee to sexual harassment.  Further, under subsection (2) thereof, an employer who employs twenty (20) or more employees should in consultation with the employees or their representatives, if any, issue a policy statement on sexual harassment, which shall be brought to the attention of every person under the employer’s direction.

3.                Section 7 of the Employment Act provides that “no person shall be employed under a contract of services except in accordance with the provisions of the Act”. Section 8 goes ahead to provide that the provisions of the Employment Act apply to both oral and written contracts of employment..

4.         Under section 9 of the Act, a contract of service (a) for a period or a number of workingdays which amount in aggregate to the equivalent of three (3) months or more, or which provides for the performance of any specified work which cannot reasonably be expected to be completed within a period or a number of working days amounting in aggregate to the equivalent of three (3) months; must be writing. 

5.         Under the aforesaid section, it is obligation and duty of the employer to have the contract of employment prepared in accordance with the provisions of the law and ensure that the same is signed the employee.

6.         Under section 10(1) of the Employment Act, a written contract of service specified under clause 9 above, shall state the particulars of employment, which may, subject to section 10(3) of the Act,  be given in instalments and in any event not less than two (2) months after the beginning of employment.  Under subsection (2) of thereof, a  written contract of service  shall contain the following particulars or details:

(a)                the name, age, permanent address and sex of the employee;

(b)               the name of the employer;

(c)                job description of the employment;

(d)               the date of commencement of the employment;

(e)                form and duration of the contract;

(f)                 the place of work;

(g)               the hours of work;

(h)               remuneration scale or rate of employment, the method of calculation of that remuneration and details of any other benefit;

(i)      date on which employee’s period of continuous employment began, taking into account any employment with a previous employer which counts toward that period; and

(j)                 any other prescribed matter.

Please not that under section 10(5), where any of the matters highlighted above changes, the employer shall in consultation with the employee, revise the contract to reflect such changes and notify the employee of the change in writing.

Further, under section 10(6) of the Act, the employer shall be required to keep records of the above particularly for a period of at least 5 years after the termination of employment.

If not contained in the contract of service, the employer shall also be required to prepare a statement containing the following particulars which can be incorporated into the contract of service by reference:-

(a)        any terms and conditions of employment relating to any of the following:

(i)          entitlement to annual leave, including public holidays and holiday pay;

(ii)     incapacity to work due to sickness or injury including any provisions of sick pay; and

(iii)         pension and pension schemes;

(b)               the length of notice which an employee is obliged to give and entitled to receive to terminate his contract of employment;

(c)          where employment is not intended to be for an indefinite period, the period for which it is expected to continue or; if it is a fixed term, the date when it will end;

(d)         the place of work or, where the employee is required or permitted to work at various places of work, an indication of that place of work and address of the employer; and

(e)                disciplinary rules and disciplinary procedure.

5.         Please note that under section 13 of the Employment Act, if, after the material date there is a change in any of the particulars under sections 10 and 12 of the Act, the employer shall give to the employer a written particular of changes at least one (1) month after the changes. Under section 16 of the Employment Act, where an employer does not give an employee a statement as required under sections 10, 12 and 13 aforesaid, or an itemised pay statement required under section 20 of the Act, the employee may file a complaint with the labour officer.

6.             Under section 15 of the Employment Act, an employer shall display a statement in the prescribed form of the employee’s rights under the Act in a conspicuous place, which is accessible to all employees.

7.          Under section 17 (6) of the Act, if any employer advances to an employee a loan in  excess of the amount of one (1) month’s his wages, or in case of an employee with written contract, two (2) months’ wages,  the excess shall not be recoverable in a court of law.  This section therefore implies that if an employer advances any loan to an employee, the employers shall be obliged to take a separate security from the employee to secure the repayment. 

8.           Under section 20 of the Act , an employer shall be required to give every employee (except a casual employee or an employee engaged on piece rate or task rate terms of any period not exceeding 6 months) an itemised pay statement either at or before the time of payment of the salaries and wages.  At the minimum, such statement should contain the following particulars:-

(a)    the gross amount of the wages or salary of the employee

(b)   itemised statutory deductions; and

(c)    net pay

9.          An employer who is not incorporated or resident in Kenya may be required by the Minister to pay bond assessed at the equivalent of one month’s wage of all the employees employed or to be employed by such employer.

10.    The annual leave is twenty one (21) days with full pay after every twelve (12) consecutive months of service . Where employment is terminated after the completion of two (2) or more consecutive months of service, the employee is entitled to one and three-quarter (1 ¾ ) days of leave with full pay in respect of each completed month of service.

11.           The Employment Act states that every employee shall be entitled to one (1) day of rest for every week of service.

12.           Under section 30 of the Employment Act, after two (2) consecutive months of service with his employer, an employee shall be entitled to sick leave of not less than seven (7) days with full pay and thereafter to sick leave of seven (7)  days with half pay, in each period of twelve (12)  consecutive month of service, subject to the production by the employee of a certificate of incapacity to worked signed by a duly certified medical practitioner.

13.         Under section 29 of the Employment Act, women employees are entitled to three (3) months maternity leave with full pay besides the normal annual leave aforesaid. On the other hand, male employees are entitled to two (2) weeks paternity leave.   

14.           House allowance should be given to an employee unless where gross salary is stated to be inclusive of house allowance (section 31 the Employment Act).

15.         Under section 34 of the Act, an employer is under an obligation to provide medical treatment to his employees during time of service and if possible medical attendance during serious illness. As a result provision, the employer should take up a medical insurance scheme for the benefit of his employees. Further, under Work Injury Benefits Act, the employer is obligated to pay compensation to an employee who has sustained personal injury or death as a result of accidents sustained either out of or in the course of employment.  Again, an employer can take out a workmen’s compensation insurance to meet such claims.

16.          Under section 42 of the Employment Act, 2007, probationary period for a new hiring or employee should not exceed six (6) month.   A probationary contract of employment can be terminated by a seven (7) days’ written notice by either party.

17.          Under section 43 of the Employment Act, in any claim arising from termination of a contract of employment, the employer must prove reason or reasons for the termination of employment.  If he fails to do so, he shall be deemed to have terminated the employee unfairly.

18.            The Employment Act provides for quite elaborate dismissal, termination, redundancy, and complaint procedures. Therefore, where an employer intend to terminate an employee it would be advisable to approach a lawyer for detailed advice.   

19.         Under the Employment Act, employers are required keep and maintain records of their employees including records of disciplinary actions taken against such employees. Such records should provide for the particulars specified in section 74 of the Act.

20.            Under section 76 of the Employment Act, every  employer who employs twenty five ( 25)  or more employee is require to comply with the provisions of Part X of the Act. Under subsection (2) thereof, such employer must notify the Director of Employment of every vacancy occurring in this establishment, business or work place in the prescribed form.  The employer is also required to notify the Director of every recruitment, abolition of posts, termination or lay-off of employees within two (2) weeks from their taking effect.  Such an employer must also maintain a register of all his employees in every calendar year and send this to the Director not later than 31^st January of the following year.

21.         Under section 83 of the Act, a foreign contract of service must be in the prescribed form, and must be signed by both parties and attested by a labour officer.

22.         Under section 90 of the of the Employment Act, no civil action or proceedings based or arising out of the Act or a contract of service in generally shall lie unless it is commenced within three (3) years next after the act, neglect, or default complained of or the case of continued injury or damage, within twelve (12) months next after cessation thereof.

23.       Under the Act, all labour and employment related disputes shall be handled exclusively by the newly established Industrial Court, which is established under the Labour Institutions Act, 2007.  

Note: If you require any more information or detailed legal opinion on may employment matter in Kenya, please do not hesitate to contact the writer on mainacy@gmail.com  

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Permanent Residence Status under Kenyan Laws

Permanent Residence Status in Kenya

 

The Kenya Citizenship and Immigration Act, 2011 is an Act of Parliament of Kenya that makes provisions for matters relating to citizenship, issuance of travel documents, immigration and connected purposes.

Under section 37 of the Act provides for qualification for the aware of a permanent residence status to Kenyan non-citizen.  Under this provision, the following categories of persons are eligible, upon application in the prescribed manner, to be granted a permanent residence status in Kenya:-

•  persons who were citizens by birth but have since renounced or otherwise lost their citizenship status and are precluded by the laws of the countries of their acquired domicile from holding dual citizenship;
• persons who have held work permits for at least seven (7)  years and have been continuously resident in Kenya for the three (2) years immediately preceding the making of the application;
• children of citizens who are born outside Kenya and have acquired citizenship of the domicile; and
• the spouses of Kenyan citizens married for at least three (3) years.

Under section 38 of the Act, any person who has qualified for permanent residence status is entitled to, and subject to, the following rights and obligations:

(a)  the right to be issued with a certificate of permanent residence;

(b)  the right to enter and remain in Kenya, subject to the provisions of the Act;

(c)   the right to be employed in Kenya; has the right to attend educational facilities;

(d)  the right to own property legally and to move and settle anywhere in Kenya;

(e)  the right to access and enjoy social services and facilities in Kenya;

(f)    the obligation to comply with residency obligations as may be prescribed.

  The permanent resident status can be lost under the following circumstances: 

•  upon acquisition of Kenya citizenship;
• upon failing to comply with obligations and conditions under section 38 of the Act;
• when a removal order against the holder of permanent residence status comes into force;
• upon communicating in writing to the Director of Immigration Services of the intention to cease holding the permanent  residence status; and
• where the marriage is not bona fide. 

The Act has also made provisions for persons who have acquired permanent residence status, their spouses, children and dependents to acquire Kenya citizenship.

For instance, under section 13 (1) of the Act, a person who has attained the age of majority (that is 18 years)  and capacity who has been lawfully resident in Kenya for a continuous period of at least seven  (7) years may on application be registered as a citizen if that person meet the following requirements:-

1. has been ordinarily resident in Kenya for a  period of seven years, immediately preceding the date of application;
2. has been a resident under the authority of a valid  permit or has been exempted by the Cabinet Secretary, in accordance with section 34(3)(h) and who is not enjoying the privileges and immunities under the Privileges and Immunities Act;
3. has resided in Kenya throughout the period of twelve (12) months immediately preceding the date of the application;
4. has an adequate knowledge of Kenya and of the duties and rights of citizens as contained in the Act.
5. is able to understand and speak Kiswahili or a local dialect;
6. understands the nature of the application under this provision;
7. has not been convicted of an offence and  sentenced to imprisonment for a term of three (3) years or longer;
8. satisfies the Cabinet Secretary that he or she intends to reside in Kenya after registration;
9. has been determined, through an objective criteria, and the justification made, in writing, that he or she has made or is capable of making a substantive contribution to the progress or advancement in any area of national development within Kenya; and
10. is not adjudged bankrupt.

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Kenyan laws on Foreign Ownership of Land

Ownership of Land by Foreigners in Kenya 

       

The Kenyan Constitution and the Lands Act (Act No. 6 of 2012) and the Land Registration Act (Act No. 3 of 2012) provide that foreigners or non-citizens can only own land under a leasehold tenure not exceeding ninety nine (99) years.  In other words, it is only Kenyan citizens who can hold land on freehold tenure basis.  

Chapter 5 of the Kenyan Constitution is that make provisions of Land and Environment. Under Article 65(1) the Constitution, ‘person who is not a citizen may hold land on basis of leasehold tenure only, and any such lease, however granted, shall not exceed ninety nine years.’ Under subsection (2) thereof, if any provision in any agreement, deed, instrument or any other document of whatever nature which purports to confer a non-citizen an interest in land greater than a ninety nine (99) year lease, ‘the provision shall be regarded as conferring on the person a ninety (99) year leasehold interest, and no more’.    

Under sub-article (3) thereof:

• a body corporate shall be regarded as a citizen only if the body corporate is wholly owned by one or more citizens; and
• property held in trust shall be regarded as being held by a citizen only if all the beneficial interest of the trust is held by people who are citizens.

In effect, private companies whose shares are not wholly owned by Kenyan citizens cannot own freehold land.  Moreover, a trust cannot be form to obviate this requirement.  

The Kenya Constitution was promulgated on 28^th August, 2010 (the effective date).

Under Article 8(1) in the Sixth Schedule to the Constitution, on the effective date, any freehold interest in land in Kenya held by a person who was not a citizen shall revert to the Republic of Kenya to be held on behalf of the people of Kenya, and the state shall grant to the person a ninety nine (99) years at a peppercorn rent.

This means that from the effective date, any freehold land or absolute proprietorship held by a foreigner was truncated to a ninety nine (99) years lease with a rent of a peppercorn.  The Government will in future call for the surrender for leasehold titles for more than 99 years or freeholds held by foreigners for truncation to 99 years with effect from the effective date. 

Under sub-article 2 thereof, on the effective date, any other interest in land in Kenya greater than a ninety nine (99) year lease held by a non-citizen shall be converted to a ninety nine (99) year lease.    This covers the 999 years leases that were initially granted to the white settlers under the Crown Land Ordinance of 1902 and 1915 as well as lease for flats or apartment over such properties.    

 Under section 13 of the Land Act, if a leasehold title expires by effluxion of time, the Land Commission shall offer to the immediate past leasehold owner thereof pre-emptive rights to be allocated the land provided that such lessee is a Kenya citizen and that the land is not required by the national or the county government for public purposes. This provision implies that a non-citizen cannot be granted an extension of lease after expiration of the ninety (99) years leasehold interest.  

It should also be noted that, under the Land Control  Act (Chapter 302 of the Laws) of Kenya, a non-citizen can only own agricultural land if it is an initial grant from the Government or after obtaining a presidential exemption  to acquire the land under section 24 thereof. It should be noted that a public company registered in Kenya is not affected by this restriction even where some of its shareholders are foreigners.  However, for a private company to own agricultural land in Kenya, except in the cases stated before, all of its shareholders must be Kenyan citizens.  

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