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Kenya

THE EMPLOY AFRICA GROUP

COUNTRY SHEET – ANGOLA

To be the globally preferred provider of Manpower Project Solutions in Africa.

 

Overview

Officially known as the Republic of Kenya a land that roughly extends from Lake Victoria to Lake Turkana and out to the Indian Ocean.  It is Bordered with Tanzania, Uganda, South Sudan, Somalia and Ethiopia.  The total land size is 224,445 sq miles (581,309Km2) and has a population of around 48 Million people as of 2017.

The Kenyan climate is tropical and cools as you move closer to the Snow-capped Mount Kenya.

Kenya first obtained independence in 1963 and has remained a member of the Commonwealth.  In August 2010 under the new constitution Kenya divided in 47 semi-autonomous counties all of which governed by elected governors. Kenya is part of the East African Community trading organisation.

Kenya launched is Kenya Vison 2030 in 2008 and the objectives are to transform Kenya into a “ newly industrializing, middle income country providing a high quality of life to all its citizens by 2030 in a clean and secure environment”. The vision is based on three pillars, economic, social and political.

The economic pillar is aimed at improving the prosperity of all kenyas, through economic development programme.  Its aim is to achieve a GDP growth rate of 10% per annum.  In 2018 Kenya recorded a 5.7% increase in the first quarter.

The social strategy aims to build a cohesive society, having a clean and secure environment, to improve quality of life for all Kenyans and Kenyan residents.  The key areas are;

Education, Health, water and sanitation, the environment, housing and urbanisation, equity and poverty elimination, reconciliation.

The political vision is a “a democratic political system that is issue-based, people-centered, result-oriented and accountable to the public”.  This transformation is expected to take place under six initiatives;

Rule of law, Electoral & political processes, democracy and public service delivery, transparency and accountability, security, peace building and conflict management.

The vision has reforms and development in 10 sectors, those being;

Infrastructure, Science and technology, public sector, Tourism, Agriculture, Trade, Manufacturing BPO, Financial services and Education & Training.

 

General Information

Capital City

Nairobi

Official Language

English

Currency

Kenyan shilling (KES)

Dialling Code

+254

Tax Authority

Kenya Revenue Authority (KRA)

www.revenue.go.ke

Tax Year

1 July – 30 June

Time Zone

East Africa Time EAT (UTC + 03:00)

 

Immigration

Employ Africa can support your Work Permit and Visa’s in Kenya through our in-country immigration specialist based in Nairobi.

Any person who wishes to employ or engage a non-citizen in any occupation shall apply for a work permit to the Ministry of interior and coordination of national government – Directorate of Immigration and Registration of Persons.

Normally, work permits process normally takes 2 to 3 weeks for the first request. Non-citizen are encouraged to start the process before they enter Kenya.

 

Documents that are required for Work Permit applications; 

(Source: http://www.immigration.go.ke/Information.html  http://www.immigration.go.ke/Resources.html )

 

Class A.

Issued to persons who intend to engage in prospecting for minerals or mining.

Class A Requirements.

 

  1. One should obtain or is assured to obtain the necessary licenses and registrations.
  2. For renewals current license held for prospecting minerals and copy of PIN is required.
  3. One has sufficient capital or resources for investment.
  4. Processing Fee Kshs.10,000 non-refundable.

 

Class B.

Work permit issued to persons wishing to invest in Agriculture and Animal Husbandry.

Class B Requirements.

  1. Proof of land ownership or leasehold interest in land for the purpose.
  2. Proof of capital available for the purpose.
  3. Clearance from relevant bodies.
  4. For renewals current license held for prospecting minerals and copy of PIN is required.
  5. Processing Fee Kshs.10,000 non-refundable.
  6. Fee is Kshs. 100,000/= per year or part thereof.

 

Class D.

This issued to a person who is offered specific employment by a specific employer who is qualified to undertake that employment.

Class D Requirements.

  1. Copies of academic/professional certificates along with the CV.
  2. Evidence that the organization failed to fill the vacancy from the local labor market.
  3. Form 25 dully filled, signed and sealed by the company.
  4. Processing Fee Kshs.10,000 non-refundable.
  5. Fee is Ksh. 200,000/= per year or part thereof.

 

Class G.

Work permit issued to investors in specific trade, business or consultancy.

Class G Requirements.

  1. Documentary proof of capital to be invested/already invested minimum of 100,000 US dollars or equivalent in any other currency.
  2. Registration certificate of the company OR certificate of incorporation.
  3. Copies of personal and company PIN (Personal Identification Number) if business is running.
  4. For renewals; audited accounts for previous 2 years and a certificate of tax compliance from the Kenya Revenue Authority.

 

SPECIAL PASS:

This is a document issued to person(s) given specific employment by specific employer for a short duration not exceeding three (3) months of receiving education or training at an educational or training establishment within the country by which he/she has been accepted as a student/pupil.

 

SPECIAL PASS REQUIREMENTS.

  • Application form dully filled and signed
  • Copy of the national passport
  • Two passport size photos
  • Forwarding letter from institution/applicant
  • Clearance from regulatory bodies (medical and dentist board, pharmacy and poisons board, engineering board, NGO council, Ministry of Information. ion is relatively new a copy of registration must be submitted together with the application .

 

NB: All documents must be certified.

 

Payroll & Tax Compliance    

Employ Africa can you support the Payroll & Tax Compliance of all your expatriate and local Staff & Contractors in Kenya.

Payroll for locals is calculated and paid in Kenya shilling.

Payroll for expatriate personnel is typically administered in United States Dollars (USD).

For all income derived from carrying out an assignment in Kenya, income tax is payable to the Kenya Revenue Authority (KRA) at the prescribed rates for either resident or Non-resident Employees. Taxes are deducted from the Employee’s salary/wages at source and paid over to the Kenya Revenue Authority (KRA) on a Monthly basis in line with the Kenyan tax regulations.

At the end of each tax year, or at the termination of the Employment (Whichever is the earliest) a statement of earnings for the current tax year must be provided to the employee to include with their tax return in their home country.

2018 Personal income tax rates (IRPP) 

(Source: https://calculator.co.ke/kra-salary-income-tax-paye-calculator# )

Income (Kshs) Tax rate (%)
0 – 147,580 10%
On the next 139,043 15%
On the next 139,043 20%
On the next 139,043 25%
Above 564,709 30%

 

Bonuses, overtime allowances, and retirement benefits paid to employees earning less KES 147,580 per annum (in 2018) are exempt from tax. The tax-free amount will be based on the employment income before the bonus, overtime allowances, and retirement benefits.

National Social Security Fund (NSSF) contributions 

(Source http://taxsummaries.pwc.com/ID/Kenya-Corporate-Other-taxes )

The NSSF has to undergo drastic transformation following the enactment of the NSSF Act 2013, which became effective from 10 January 2014. However, the implementation of the new Act awaits conclusion of a pending court case. In the meantime, NSSF contributions are as per the provisions of the old Act (i.e. KES 200 for employer and KES 200 for employee).

National Hospital Insurance Fund (NHIF) contributions

Employees in Kenya are required to contribute to the NHIF. There is no corresponding employer contribution.

The contributions are graduated, with the maximum contribution currently being KES 1,700 per employee for employees earning more than KES 100,000 per month.

Labour Law

The following extracts are taken from the Kenyan Employment Act Revised edition 2012 (2007) available at www.kenyalaw.org

Employment particulars

(1) A written contract of service specified in section 9 shall state particulars of employment which may, subject to subsection (3), be given in instalments and shall be given not later than two months after the beginning of the employment.

(2) A written contract of service shall state—

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

(b) the name of the employer;

(c) the job description of the employment;

(d) the date of commencement of the employment;

(e) the form and duration of the contract;

(f) the place of work;

(g) the hours of work;

(h) the remuneration, scale or rate of remuneration, the method of calculating that remuneration and details of any other benefits;

(i) the intervals at which remuneration is paid; and

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

(k) any other prescribed matter.

(3) The statement required under this section shall also contain particulars, as at a specified date not more than seven days before the statement, or the instalment containing them, is given of—

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

(i) entitlement to annual leave, including public holidays, and holiday pay (the particulars given being sufficient to enable the employee’s entitlement, including any entitlement to accrued holiday pay on the termination of employment, to be precisely calculated);

(ii) incapacity to work due to sickness or injury, including any provision for sick pay; and

(iii) pensions and pension schemes;

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

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

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

(e) any collective agreements which directly affect the terms and conditions of the employment including, where the employer is not a party, the person by whom they were made; and

(f) where the employee is required to work outside Kenya for a period of more than one month—

(i) the period for which that employee is to work outside Kenya;

(ii) the currency in which remuneration is to be paid while that employee is working outside Kenya;

(iii) any additional remuneration payable to the employee, and any benefits due to the employee by reason of the employee working outside Kenya; and

(iv) any terms and conditions relating to the employee’s return to Kenya.

(4) Subsection (3)(a)(iii) does not apply to an employee of a body or authority if—

(a) the employee’s pension rights depend on the terms of a pension scheme established under any provision contained in or having effect under any Act; and

(b) any such provision requires the body or authority to give to a new employee information concerning the employee’s pension rights or the determination of questions affecting those rights.

(5) Where any matter stipulated in subsection (1) changes, the employer shall, in consultation with the employee, revise the contract to reflect the change and notify the employee of the change in writing.

(6) The employer shall keep the written particulars prescribed in subsection (1) for a period of five years after the termination of employment.

(7) If in any legal proceedings an employer fails to produce a written contract, or the written particulars prescribed in subsection (1) the burden of proving or disproving an alleged term of employment stipulated in the contract shall be on the employer.

When wages or salaries due

(1) Where a contract of service entered into under which a task or piece-work is to be performed by an employee, the employee shall be entitled:

(a) when the task has not been completed, at the option of his mployer, to be paid by his employer at the end of the day in proportion to the amount of the task which has been performed, or to complete the task on the following day, in which case he shall be entitled to be paid on completion of the task; or

(b) in the case of piece-work, to be paid by his employer at the end of each month in proportion to the amount of work which he has performed during the month, or on completion of the work, whichever date is the earlier.

(2) Subject to subsection (1), wages or salaries shall be deemed to be due—

(a) in the case of a casual employee, at the end of the day;

(b) in the case of an employee employed for a period of more than a day but not exceeding one month, at the end of that period;

(c) in the case of an employee employed for a period exceeding one month, at the end of each month or part thereof;

(d) in the case of an employee employed for an indefinite period or on a journey, at the expiration of each month or of such period, whichever date is the earlier, and on the completion of the journey, respectively.

(3) The provisions of this section shall not affect an order, judgment or award of the Industrial Court or an agreement between an employee and his employer the relevant terms of which are more favourable to the employee than the provisions of this section.

(4) Where an employee is summarily dismissed for lawful cause, the employee shall, on dismissal be paid all moneys, allowances and benefits due to him up to the date of his dismissal.

(5) Upon the termination of a contract of service—

(a) by effluxion of time, it shall be the duty of the employer to ensure that the employee is paid the entire amount of the wages earned by or payable to the employee and of the allowances due to him as have not been paid;

(b) by dismissal, the employer shall, within seven days, deliver to a labour officer in the district in which the employee was working a written report specifying the circumstances leading to, and the reasons for, the dismissal and stating the period of notice and the amount of wages in lieu thereof to which the employee would, but for the dismissal, have been entitled; and the report shall specify the amount of any wages and other allowance earned by him since the date of the employee’s dismissal.

(6) No wages shall be payable to an employee in respect of a period during which the employee is detained in custody or is serving a sentence of imprisonment imposed under any law.

Deduction of wages

(1) an employer may deduct from the wages of his employee—

(a) any amount due from the employee as a contribution to any provident fund or superannuation scheme or any other scheme approved by the Commissioner for Labour to which the employee has agreed to contribute;

(b) a reasonable amount for any damage done to, or loss of, any property lawfully in the possession or custody of the employer occasioned by the wilful default of the employee;

(c) an amount not exceeding one day’s wages in respect of each working day for the whole of which the employee, without leave or other lawful cause, absents himself from the premises of the employer or other place proper and appointed for the performance of his work;

(d) an amount equal to the amount of any shortage of money arising through the negligence or dishonesty of the employee whose contract of service provides specifically for his being entrusted with the receipt, custody and payment of money;

(e) any amount paid to the employee in error as wages in excess of the amount of wages due to him;

(f) any amount the deduction of which is authorised by any written law for the time being in force, collective agreement, wage determination, court order or arbitration award;

(g) any amount in which the employer has no direct or indirect beneficial interest, and which the employee has requested the employer in writing to deduct from his wages;

(h) an amount due and payable by the employee under and in accordance with the terms of an agreement in writing, by way of repayment or part repayment of a loan of money made to him by the employer, not exceeding fifty percent of the wages payable to that employee after the deduction of all such other amounts as may be due from him under this section; and

(i) such other amounts as the Minister may prescribe.

(2) No employer shall make a deduction from the wages payable to an employee as an advance of wages in consideration of, or as a reward for, the provision of employment for that employee, or for retaining the employee in employment.

(3) Without prejudice to any right of recovery of any debt due, and notwithstanding the provisions of any other written law, the total amount of all deductions which under the provisions of subsection (1), may be made by an employer from the wages of his employee at any one time shall not exceed two-thirds of such wages or such additional or other amount as may be prescribed by the Minister either generally or in relation to a specified employer or employee or class of employers or employees or any trade or industry.

(4) An employer who deducts an amount from an employee’s remuneration in accordance with subsection (1)(a), (f), (g) and (h) shall pay the amount so deducted in accordance with the time period and other requirements specified in the law, agreement court order or arbitration as the case may be.

(5) An employer who fails to comply with the provisions of subsection (4) commits an offence and shall on conviction be liable to a fine not exceeding one hundred thousand shillings or to imprisonment for a term not exceeding two years, or to both.

(6) Where proceedings are brought under subsection (5) in respect of failure by the employer to remit deductions from an employee’s remuneration, the court may, in addition to fining the employer order the employer to refund to the employee the amount deducted from the employee’s wages and pay the intended beneficiary on behalf of the employee with the employer’s own funds.

Itemised pay statement

(1) An employer shall give a written statement to an employee at or before the time at which any payment of wages or salary is made to the employee.

(2) The statement specified in subsection (1) shall contain particulars of—

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

(b) the amounts of any variable and subject to section 22, any statutory deductions from that gross amount and the purposes for which they are made; and

(c) where different parts of the net amount are paid in different ways, the amount and method of payment of each part-payment.

(3) This section shall not apply to a casual employee or an employee engaged on piece-rate or task-rate terms or for any period not exceeding six months.

(4) The Minister may exclude any category of employees or employees employed in any sector from the application of this section.

Statement of statutory deductions

(1) A pay statement issued in accordance with section 20 need not contain separate particulars of statutory deductions if—

(a) it contains an aggregate amount of statutory deduction, including that deduction; and

(b) the employer has given to the employee, at or before the time at which the pay statement is given, a statement of statutory deductions specified in subsection (2).

(2) A statement of statutory deductions shall be—

(a) in writing;

(b) contain, in relation to each deduction comprised in the aggregate amount of deductions, particulars of—

(i) the amount of the deduction;

(ii) the intervals at which the deduction is to be made; and

(iii) the purpose for which it is made; and

(c) in accordance with subsection (5), effective at the date on which the pay statement is given.

(3) A statement of statutory deductions may be amended by—

(a) the addition of a new deduction;

(b) a change in the particulars; or

(c) the cancellation of an existing deduction, by notice in writing, containing particulars of the amendment given by the employer to the employee.

(4) An employer who has given to an employee a statement of statutory deductions shall—

(a) within the period of twelve months beginning on the date the first statement of statutory deductions was given; and

(b) at intervals of not more than twelve months afterwards, re-issue it in a consolidated form incorporating any amendments notified in accordance with subsection (3).

(5) For the purposes of subsection (2)(c), a statement of deductions—

(a) becomes effective on the date on which it is given to the employee;

and

(b) ceases to be effective at the end of the period of twelve months beginning on that date or, where it is re-issued in accordance with subsection (4), at the end of the period of twelve months beginning with the date of the last re-issue.

Power to amend provisions on pay and statements of deductions

The Minister may on the advice of the Board—

(a) vary the provisions of sections 20 and 21 as to the particulars which must be included in a pay statement or a statement of statutory deductions by adding items to, or removing items from, the particulars listed in those sections or by amending any such particulars; and

(b) vary the provisions of section 21(4) and (5) so as to shorten or extend the periods specified in those subsections, or those periods as varied from time to time under this section.

Security bond for wages

(1) An employer who is not incorporated or resident in Kenya may be required by the Minister to pay a bond assessed at the equivalent of one month’s wages for all employees employed or to be employed by the employer.

(2) A bond paid by any employer shall be held by the Minister on behalf of that employer in a separate interest-bearing account and shall not be used for any purpose other than paying wages and other entitlements to that employer’s employees in the event of default by that employer.

Basic minimum conditions of employment

(1) The provisions of this Part and Part VI shall constitute basic minimum terms and conditions of contract of service.

(2) Where the terms and conditions of a contract of service are regulated by any regulations, as agreed in any collective agreement or contract between the parties or enacted by any other written law, decreed by any judgment award or order of the Industrial Court are more favourable to an employee than the terms provided in this Part and Part VI, then such favourable terms and conditions of service shall apply.

Hours of work

(1) An employer shall regulate the working hours of each employee in accordance with the provisions of this Act and any other written law.

(2) Notwithstanding subsection (1), an employee shall be entitled to at least one rest day in every period of seven days.

Annual leave

(1) An employee shall be entitled—

(a) after every twelve consecutive months of service with his employer to not less than twenty-one working days of leave with full pay;

(b) where employment is terminated after the completion of two or more consecutive months of service during any twelve months’ leave-earning period, to not less than one and three-quarter days of leave with full pay, in respect of each completed month of service in that period, to be taken consecutively.

(2) An employer may, with the consent of the employee divide the minimum annual leave entitlement under subsection (1)(a) into different parts to be taken at different intervals.

(3) Unless otherwise provided in an agreement between an employee and an employer or in a collective agreement, and on condition that the length of service of an employee during any leave-earning period specified in subsection (1)(a) entitles the employee to such a period, one part of the parts agreed upon under subsection (2) shall consist of at least two uninterrupted working weeks.

(4) The uninterrupted part of the annual leave with pay referred to in subsection (3) shall be granted and taken during the twelve consecutive months of service referred to in subsection (1)(a) and the remainder of the annual leave with pay shall be taken not later than eighteen months from the end of the leave earning period referred to in subsection (1)(a) being the period in respect of which the leave entitlement arose.

(5) Where in a contract of service an employee is entitled to leave days in excess of the minimum specified in subsection (1)(a), the employer and the employee may agree on how to utilize the leave days.

Maternity leave

(1) A female employee shall be entitled to three months maternity leave with full pay.

(2) On expiry of a female employee’s maternity leave as provided in subsections (1) and (3), the female employee shall have the right to return to the job which she held immediately prior to her maternity leave or to a reasonably suitable job on terms and conditions not less favourable than those which would have applied had she not been on maternity leave.

(3) Where—

(a) the maternity leave has been extended with the consent of the employer; or

(b) immediately on expiry of maternity leave before resuming her duties a female employee proceeds on sick leave or with the consent of the employer on annual leave; compassionate leave; or any other leave, the three months maternity leave under subsection (1) shall be deemed to expire on the last day of such extended leave.

(4) A female employee shall only be entitled to the rights mentioned in subsections (1), (2) and (3) if she gives not less than seven days’ notice in advance or a shorter period as may be reasonable in the circumstances of her intention to proceed on maternity leave on a specific date and to return to work thereafter.

(5) The notice referred to in subsection (4) shall be in writing.

(6) A female employee who seeks to exercise any of the rights mentioned in this section shall, if required by the employer, produce a certificate as to her medical condition from a qualified medical practitioner or midwife.

(7) No female employee shall forfeit her annual leave entitlement under section 28 on account of having taken her maternity leave.

(8) A male employee shall be entitled to two weeks paternity leave with full pay.

Sick leave

(1) After two consecutive months of service with his employer, an employee shall be entitled to sick leave of not less than seven days with full pay and thereafter to sick leave of seven days with half pay, in each period of twelve consecutive months of service, subject to production by the employee of a certificate of incapacity to work signed by a duly qualified medical practitioner or a person acting on the practitioner’s behalf in charge of a dispensary or medical aid centre.

(2) For an employee to be entitled to sick leave with full pay under subsection (1), the employee shall notify or cause to be notified as soon as is reasonably practicable his employer of his absence and the reasons for it.

(3) For the purposes of subsections (1) and (2) “full pay” includes wages at the basic rate excluding deductions from the wages allowable under section 19.

(4) For purposes of subsection (1), the twelve continuous months of service shall be deemed to commence on the date of the employment of the employee and on such subsequent anniversary dates of employment.

(5) An employer shall have the right to place all his employees on an annual cycle of an anniversary date falling on a day to be determined by the employer.

Housing

(1) An employer shall at all times, at his own expense, provide reasonable housing accommodation for each of his employees either at or near to the place of employment, or shall pay to the employee such sufficient sum, as rent, in addition to the wages or salary of the employee, as will enable the employee to obtain reasonable accommodation.

(2) This section shall not apply to an employee whose contract of service—

(a) contains a provision which consolidates as part of the basic wage or salary of the employee, an element intended to be used by the employee as rent or which is otherwise intended to enable the employee to provide himself with housing accommodation; or

(b) is the subject matter of or is otherwise covered by a collective agreement which provides consolidation of wages as provided in paragraph (a).

(3) The Minister may, on the recommendation of the Board by notice in the Gazette, exclude the application of this section to a category of employees and such category of employees shall be dealt with as shall be specified in the notice.

Water

An employer shall provide a sufficient supply of wholesome water for the use of his employees at the place of employment and, as the case may be, within a reasonable distance of any housing accommodation provided for the employees by the employer.

Food

(1) An employer shall, where the provision of food has been expressly agreed to in or at the time of entering into a contract of service, ensure that an employee is properly fed and supplied with sufficient and proper cooking utensils and means of cooking, at the employer’s expense.

(2) The provisions of this section shall not be deemed to impose upon an employer any liability in respect of an employee during the time the employee is absent from his place of employment without the permission of the employer or without other lawful excuse.

Medical attention

(1) Subject to subsection (2), an employer shall ensure the sufficient provision of proper medicine for his employees during illness and if possible, medical attendance during serious illness.

(2) An employer shall take all reasonable steps to ensure that he is notified of the illness of an employee as soon as reasonably practicable after the first occurrence of the illness.

(3) It shall be a defence to a prosecution for an offence under subsection (1) if the employer shows that he did not know that the employee was ill and that he took all reasonable steps to ensure that the illness was brought to his notice or that it would have been unreasonable, in all the circumstances of the case, to have required him to know that the employee was ill.

(4) This section shall not apply where—

(a) the illness or injury to the employee was contracted during a period when the employee was absent from his employment without lawful cause or excuse;

(b) the illness or injury is proved to have been self-inflicted;

(c) medical treatment is provided free of charge by the Government or under any insurance scheme established under any written lawwhich covers the employee.

Termination and Dismissal

Termination notice

(1) A contract of service not being a contract to perform specific work, without reference to time or to undertake a journey shall, if made to be performed in Kenya, be deemed to be—

(a) where the contract is to pay wages daily, a contract terminable by either party at the close of any day without notice;

(b) where the contract is to pay wages periodically at intervals of less than one month, a contract terminable by either party at the end of the period next following the giving of notice in writing; or

(c) where the contract is to pay wages or salary periodically at intervals of or exceeding one month, a contract terminable by either party at the end of the period of twenty-eight days next following the giving of notice in writing.

(2) Subsection (1) shall not apply in the case of a contract of service whose terms provide for the giving of a period of notice of termination in writing greater than the period required by the provision of this subsection which would otherwise be applicable thereto.

(3) If an employee who receives notice of termination is not able to understand the notice, the employer shall ensure that the notice is explained orally to the employee in a language the employee understands.

(4) Nothing in this section affects the right—

(a) of an employee whose services have been terminated to dispute the lawfulness or fairness of the termination in accordance with the provisions of section 46; or

(b) of an employer or an employee to terminate a contract of employment without notice for any cause recognised by law.

(5) An employee whose contract of service has been terminated under subsection (1)(c) shall be entitled to service pay for every year worked, the terms of which shall be fixed.

(6) This section shall not apply where an employee is a member of—

(a) a registered pension or provident fund scheme under the Retirement Benefits Act;

(b) a gratuity or service pay scheme established under a collective agreement;

(c) any other scheme established and operated by an employer whose terms are more favourable than those of the service pay scheme established under this section; and

(d) the National Social Security Fund.

Notification and hearing before termination on grounds of misconduct

(1) Subject to section 42(1), an employer shall, before terminating the employment of an employee, on the grounds of misconduct, poor performance or physical incapacity explain to the employee, in a language the employee understands, the reason for which the employer is considering termination and the employee shall be entitled to have another employee or a shop floor union representative of his choice present during this explanation.

(2) Notwithstanding any other provision of this Part, an employer shall, before terminating the employment of an employee or summarily dismissing an employee under section 44(3) or (4) hear and consider any representations which the employee may on the grounds of misconduct or poor performance, and the person, if any, chosen by the employee within subsection (1), make.

Termination of probationary contracts

(1) The provisions of section 41 shall not apply where a termination of employment terminates a probationary contract.

(2) A probationary period shall not be more than six months but it may be extended for a further period of not more than six months with the agreement of the employee.

(3) No employer shall employ an employee under a probationary contract for more than the aggregate period provided under subsection (2).

(4) A party to a contract for a probationary period may terminate the contract by giving not less than seven days’ notice of termination of the contract, or by payment, by the employer to the employee, of seven days’ wages in lieu of notice.

Proof of reason for termination

(1) In any claim arising out of termination of a contract, the employer shall be required to prove the reason or reasons for the termination, and where the employer fails to do so, the termination shall be deemed to have been unfair within the meaning of section 45.

(2) The reason or reasons for termination of a contract are the matters that the employer at the time of termination of the contract genuinely believed to exist, and which caused the employer to terminate the services of the employee.

Summary dismissal

(1) Summary dismissal shall take place when an employer terminates the employment of an employee without notice or with less notice than that to which the employee is entitled by any statutory provision or contractual term.

(2) Subject to the provisions of this section, no employer has the right to terminate a contract of service without notice or with less notice than that to which the employee is entitled by any statutory provision or contractual term.

(3) Subject to the provisions of this Act, an employer may dismiss an employee summarily when the employee has by his conduct indicated that he has fundamentally breached his obligations arising under the contract of service.

(4) Any of the following matters may amount to gross misconduct so as to justify the summary dismissal of an employee for lawful cause, but the enumeration of such matters or the decision of an employer to dismiss an employee summarily under subsection (3) shall not preclude an employer or an employee from respectively alleging or disputing whether the facts giving rise to the same, or whether any other matters not mentioned in this section, constitute justifiable or lawful grounds for the dismissal if—

(a) without leave or other lawful cause, an employee absents himself from the place appointed for the performance of his work;

(b) during working hours, by becoming or being intoxicated, an employee renders himself unwilling or incapable to perform his work properly;

(c) an employee wilfully neglects to perform any work which it was his duty to perform, or if he carelessly and improperly performs any work which from its nature it was his duty, under his contract, to have performed carefully and properly;

(d) an employee uses abusive or insulting language, or behaves in a manner insulting, to his employer or to a person placed in authority over him by his employer;

(e) an employee knowingly fails, or refuses, to obey a lawful and proper command which it was within the scope of his duty to obey, issued by his employer or a person placed in authority over him by his employer;

(f) in the lawful exercise of any power of arrest given by or under any written law, an employee is arrested for a cognizable offence punishable by imprisonment and is not within fourteen days either released on bail or on bond or otherwise lawfully set at liberty; or

(g) an employee commits, or on reasonable and sufficient grounds is suspected of having committed, a criminal offence against or to the substantial detriment of his employer or his employer’s property.

Unfair termination

(1) No employer shall terminate the employment of an employee unfairly.

(2) A termination of employment by an employer is unfair if the employer fails to prove—

(a) that the reason for the termination is valid;

(b) that the reason for the termination is a fair reason—

(i) related to the employee’s conduct, capacity or compatibility; or

(ii) based on the operational requirements of the employer; and

(c) that the employment was terminated in accordance with fair procedure.

(3) An employee who has been continuously employed by his employer for a period not less than thirteen months immediately before the date of termination shall have the right to complain that he has been unfairly terminated.

(4) A termination of employment shall be unfair for the purposes of this Part where—

(a) the termination is for one of the reasons specified in section 46; or

(b) it is found out that in all the circumstances of the case, the employer did not act in accordance with justice and equity in terminating the employment of the employee.

(5) In deciding whether it was just and equitable for an employer to terminate the employment of an employee, for the purposes of this section, a labour officer, or the Industrial Court shall consider—

(a) the procedure adopted by the employer in reaching the decision to  dismiss the employee, the communication of that decision to the employee and the handling of any appeal against the decision;

(b) the conduct and capability of the employee up to the date of termination;

(c) the extent to which the employer has complied with any statutory  requirements connected with the termination, including the issuing of a certificate under section 51 and the procedural requirements set out in section 41;

(d) the previous practice of the employer in dealing with the type of circumstances which led to the termination; and

(e) the existence of any pervious warning letters issued to the employee.

Reasons for termination or discipline

The following do not constitute fair reasons for dismissal or for the imposition of a disciplinary penalty—

(a) a female employee’s pregnancy, or any reason connected with her pregnancy;

(b) the going on leave of an employee, or the proposal of an employee to take, any leave to which he was entitled under the law or a contract;

(c) an employee’s membership or proposed membership of a trade union;

(d) the participation or proposed participation of an employee in the activities of a trade union outside working hours or, with the consent of the employer, within working hours;

(e) an employee’s seeking of office as, or acting or having acted in the capacity of, an officer of a trade union or a workers’ representative;

(f) an employee’s refusal or proposed refusal to join or withdraw from a trade union;

(g) an employee’s race, colour, tribe, sex, religion, political opinion or affiliation, national extraction, nationality, social origin, marital status, HIV status or disability;

(h) an employee’s initiation or proposed initiation of a complaint or other legal proceedings against his employer, except where the complaint is shown to be irresponsible and without foundation; or

  • an employee’s participation in a lawful strike.

Records to be kept by employer

(1) An employer shall keep a written record of all employees employed by him, with whom he has entered into a contract under this Act which shall contain the particulars—

(a) of a policy statement under section 6

(2) where applicable;

(b) specified in section 10(3);

(c) specified in section 13;

(d) specified in sections 21 and 22;

(e) of an employee’s weekly rest days specified in section 27;

(f) of an employee’s annual leave entitlement, days taken and days due specified in section 28;

(g) of maternity leave specified in section 29;

(h) of sick leave specified in section 30;

(i) where the employer provides housing, particulars of the accommodation provided and, where the wage rates are deconsolidated particulars of the house allowance paid to the employee;

(j) of food rations where applicable;

(k) specified in section 61;

(l) of a record of warning letters or other evidence of misconduct of an employee; and

(m) any other particulars required to be kept under any written law or as may be prescribed by the Minister.

(3) An employer shall permit an authorised officer who may require an employer to produce for inspection the record for any period relating to the preceding thirty-six months to examine the record.

(4) Where an employer who employs a child maintains a register in accordance with section 61, the employer shall be deemed to have complied with this section if the register contains in relation to each child, the particulars required to be kept by the employer under subsection (1).

False entries, etc.

A person who makes, causes to be made or knowingly allows to be made an entry in a register, record, book or other document whatsoever, required by this Act to be kept, which that person knows to be false in a material particular, or produces, furnishes, causes or knowingly allows to be produced or furnished, to an authorised officer, a register, record, book or other document which he knows  to be false in a material particular, commits an offence and shall on conviction beliable to a fine not exceeding one hundred thousand shillings or to imprisonment for a term not exceeding six months or to both

Employer of Record for Kenya

Although an Employer of Record often works with a staffing agency, the two are separate business entities. Each has specific roles and responsibilities in their symbiotic relationship.

  • Purpose

An employer of record serves as an employer for tax purposes while an employee performs work for the client, such as a staffing firm or other business. An employer of record in Kenya handles all personnel functions, including payroll processing and funding; tax deposits and filing; and employment contracts and paperwork. Maintaining a Certificate of Insurance, and Verification forms; unemployment insurance; and workers’ compensation are done. An employer of record also performs background checks and drug screenings; administers benefits; terminates employees; and may handle worker issues. Conversely, a staffing firm recruits’ employees and assigns them to businesses for worker absences, temporary skill shortages, seasonal work, or special projects. Their main focus is to match temporary, temp-to-hire, long-term, or permanent workers with clients in need.

  • Benefits

Using an employer of record in Kenya allows the client company to free up time and cost-effectively outsource its necessary human resource functions, employee benefits, payroll, workers’ compensation, and compliance issues. The money saved by outsourcing these functions can be used to expand the business, provide steady income for the owner, or fill a variety of other purposes. Onboarding quality talent is done quickly by an employer of record so clients can quickly ramp up staff and staffing agencies can deliver top quality workers to their clients. Most staffing agency owners don’t have the HR training, payroll and accounting skills, compliance knowledge, or risk management, insurance, and employee benefits background to meet the demands of being an employer.

  • Responsibilities and Liabilities

The client company or staffing agency owner retains control over business operations and responsibility for workplace safety and compliance. The employer of record in Kenya assumes responsibilities and liabilities for employment issues such as administration, payroll, taxes, benefits, and maintaining employee records. Because the employer of record assumes most of the responsibility for compliance and tax laws, the client or staffing services owner receives peace of mind, knowing their business is being taken care of by qualified professionals.

Whereas an employer of record and staffing agency often work together, they have diverse purposes in the workplace

 

References

  1. Ministry of State for Planning, National Development and Vision 2030 (10 June 2008). “Launching Of Kenya Vision 2030 Speech by His Excellency Hon. Mwai Kibaki, CGH, MP” Ministry of State for Planning, National Development and Vision 2030.
  2. Office of Public Communications (10 June 2008). “Kenya Vision 2030 officially launched”. Office of Public Communications. Archived from the originalon 11 September 2011. Retrieved 18 August 2012.
  3. “Vision 2030 – Vision”. Government of Kenya. Retrieved 18 March 2013.
  4. “Vision 2030 Flagship Projects”. Embassy of the Republic of Kenya in Ireland. Archived from the original on 18 April 2013. Retrieved 18 March 2013.
  5. “Kenya profile”BBC News. 3 December 2012. Retrieved 18 March2013.
  6. http://vision2030.go.ke/http://www.vision2030.go.ke/532/dr-julius-m-muia-appointed-as-new-director-general-kenya-vision-2030-delivery-secretariat/

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