Pay & working terms · 7 min read
Discrimination when hiring in Kenya: what section 5 bans and what to do
The grounds an employer cannot use to turn you down, the interview questions that point to them, who has to prove what and where to complain.
Kenyan law protects you before you get the job, not only once you are on the payroll. Section 5 of the Employment Act covers recruitment, and for that section it treats a job applicant as an employee and a recruitment agency as an employer. This guide explains what the law bans, how discrimination shows up in interviews and what you can do about it. It is general information, not legal advice.
The grounds section 5(3) bans
No employer may discriminate directly or indirectly against an employee or a prospective employee, or harass them, on these grounds (section 5(3)(a)):
- Race, colour, nationality, and ethnic or social origin
- Sex, pregnancy and marital status
- Religion, and political or other opinion
- Language
- Disability
- HIV status
The ban covers recruitment, training, promotion, terms and conditions, termination and other matters arising out of employment (section 5(3)(b)). Recruitment procedures, advertising and selection criteria all count as employment practice under section 5(8). Breaking section 5 is an offence (section 5(6)). Where the Act sets no specific penalty, the general one is a fine of up to KSh 50,000, up to three months in prison, or both (section 87).
Age is not on the section 5 list, but Article 27(4) and (5) of the Constitution bar any person from discriminating on grounds that include age, health status, culture, dress, belief and birth.
Limits in job adverts: when they are lawful
Section 5(4) lists what is not discrimination: affirmative action that promotes equality, a choice based on an inherent requirement of the job, employing a citizen under the national employment policy, and limits needed for state security. An advert that says women or persons with disabilities are encouraged to apply is a form of affirmative action, which section 5(4)(a) allows.
Other limits need a reason in the job itself. When we checked all 1,702 open adverts on work.ke on 11 October 2026, we still found age caps, such as candidates aged between 25 and 35, and an accountant post that preferred a male candidate. A language the role uses every day can be an inherent requirement. If an advert sets a limit like these, you can ask the employer which requirement of the job it rests on.
Interview questions that point to discrimination
Most interview questions are about your skills and experience. The ones below are different: they touch a protected ground and say nothing about the work. You can answer calmly without giving the information.
- Are you married, or planning to marry soon? You can say: My plans outside work will not affect my availability. I can work the hours in the advert.
- Are you pregnant, or planning to have children? You can say: I would like to focus on the role. Is there a part of the job you are concerned about?
- Which community are you from? You can say: I am Kenyan, and I speak English and Kiswahili. Does the job need a particular language?
- Which church or mosque do you attend? You can say: My faith is private, and I can work the schedule you have described.
- Can you show us your HIV status? You can say: I understand an HIV test cannot be made a condition of employment. I am happy to do any fitness check the job genuinely needs.
- How old are you? You can say: I meet the experience and qualifications in the advert. Is there a requirement I have missed?
A polite redirect is often enough. As soon as you leave, note the exact question and who asked it.
Who has to prove what
Section 5(7) puts the burden on the employer. Once a breach of section 5 is alleged in proceedings, the employer must prove that the discrimination did not take place as alleged, and that its decision was not based on any of the protected grounds.
You still need facts, not only a feeling. A question about pregnancy followed by a rejection, a remark about your community, a weaker candidate hired after such a remark: facts like these are what make an employer explain itself.
Courts award real money. In Were v Krishna Chemists [2024] KEELRC 1645, a medical representative who was three months pregnant was handed a letter saying her contract had lapsed in January, although the employer had kept her working until April. The Employment and Labour Relations Court found that she had been discriminated against because of her pregnancy. It awarded KSh 1,071,059.40, twelve months' salary, as compensation, plus KSh 89,254.95 in notice pay and KSh 139,703.40 in unpaid house allowance. That case was about losing a job, but the same section protects applicants.
What to write down the same day
Memory fades and messages get deleted. On the day, write a short note with dates and keep it with copies of everything.
- The advert, saved as a screenshot or PDF with the date, reference and requirements
- Your application: the date you applied and the documents you sent
- The invitation: date, time, venue or link, and the names or roles of the panel
- The exact words of any question or remark about a protected ground, and who said it
- Anyone who was present, or whom you told the same day
- The outcome: the rejection message and, if you learn it, who was hired
12 October 2026, 10am. Interview for Sales Executive, reference SE/14. Panel of three. The sales manager asked whether I was married and said the last lady who married left after a month. Interview lasted 20 minutes. Rejection SMS on 14 October at 4pm.
Where to complain
Labour office or court. You can take a complaint to a labour officer at your county labour office, or file a claim at the Employment and Labour Relations Court. Section 5(1) gives labour officers and that court the duty to promote equal opportunity and eliminate discrimination in employment.
National Gender and Equality Commission. NGEC investigates complaints of discrimination in public offices and private institutions, and first tries to settle them by conciliation, mediation or negotiation (NGEC Act, section 29). You can complain orally or in writing (section 33).
HIV and AIDS Tribunal. It hears complaints under the HIV and AIDS Prevention and Control Act (section 26). That Act bars denying a qualified person a job only because of their actual, perceived or suspected HIV status (section 31), and bars making an HIV test a condition of employment (section 13).
Time limits. A claim based on the Employment Act generally has to start within three years of the act you complain about (section 89). If you were dismissed, the complaint to a labour officer is due within three months (section 47). Do not wait.
A trade union, a legal aid clinic or an advocate can help you choose the route. This guide is general information, not legal advice. And one rule holds whatever happens in the interview: no real job charges you to apply, to be interviewed or to start.
Sources and further reading
- Employment Act, 2007, sections 5, 47, 87 and 89, on Kenya Law
- Constitution of Kenya, 2010, Article 27, on Kenya Law
- Were v Krishna Chemists (Cause E500 of 2023) [2024] KEELRC 1645 (KLR), judgment of 25 June 2024
- HIV and AIDS Prevention and Control Act, 2006, sections 13, 26 and 31, on Kenya Law
- National Gender and Equality Commission Act, 2011, sections 29 and 33, on Kenya Law
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Frequently asked questions
Does section 5 protect me if I was never hired?
Yes. For section 5, a job applicant counts as an employee and an employment agency counts as an employer (Employment Act, section 5(8)).
Can an interviewer in Kenya ask if I am pregnant?
Pregnancy is a protected ground under section 5(3). A question about it followed by a rejection is evidence you can use, and the employer then has to prove that its decision was not based on pregnancy (section 5(7)).
Can a job advert in Kenya set an age limit?
Age is not on the section 5(3) list, but Article 27 of the Constitution bars discrimination on grounds of age. An age limit needs a reason in the job itself. If an advert gives none, ask the employer for it.
Can an employer make me take an HIV test before hiring me?
No. The HIV and AIDS Prevention and Control Act bars compelling anyone to take an HIV test as a precondition to employment (section 13(2)(a)).
Where do I report hiring discrimination in Kenya?
To a labour officer, the Employment and Labour Relations Court or the National Gender and Equality Commission. Complaints about HIV status can also go to the HIV and AIDS Tribunal.