Unfair termination in Kenya: your rights, the 3 month and 3 year deadlines, and up to 12 months pay

What your employer has to prove

In a claim over a termination, the employer has to prove the reason. If it can't, the termination is deemed unfair (section 43(1)). Section 45(2) says it's unfair if the employer fails to prove all three of these:

• The reason is valid.
• The reason is fair: it relates to your conduct, capacity or compatibility, or to the employer's operational needs.
• The job was ended through a fair procedure.

You still have to show that an unfair termination happened, and the employer has to justify its grounds (section 47(5)).

The fair procedure in section 41

Before ending your job for misconduct, poor performance or physical incapacity, your employer must:

• Explain the reason to you in a language you understand.
• Let you have another employee or a shop floor union representative of your choice present.
• Hear and consider what you and that person have to say.

A letter handed over with no meeting, or a meeting where the decision was already made, is the kind of thing a labour officer will ask about. The officer also looks at any earlier warning letters and how the employer treated similar cases (section 45(5)).

Reasons that are never fair

• Pregnancy, or any reason connected with it.
• Going on, or asking for, leave you're entitled to.
• Joining a trade union or taking part in its activities, or refusing to join one.
• Your race, colour, tribe, sex, religion, political opinion, nationality, social origin, marital status, HIV status or disability.
• Starting a complaint or legal case against your employer, unless it's shown to be irresponsible and without foundation.
• Taking part in a lawful strike.

These come from section 46.

Termination and summary dismissal aren't the same

Termination ends the job with notice, or pay instead. Summary dismissal ends it with no notice or too little. It's allowed only where your conduct shows you've fundamentally breached your obligations under the contract (section 44(3)). Section 44(4) lists matters that may amount to gross misconduct:

• Being absent from work without leave or other lawful cause.
• Being drunk at work so that you can't do your job properly.
• Wilfully neglecting your work, or doing it carelessly.
• Using abusive or insulting language to your employer or a person in authority over you.
• Refusing to obey a lawful and proper instruction.
• Being arrested for a cognizable offence and not released within 14 days.
• Committing, or being reasonably suspected of, a crime against your employer or its property.

Even here, your employer must hear you first (section 41(2)). The list is also open to dispute: you can argue that the facts don't justify dismissal. Money already earned up to the date of dismissal is still due to you.

The deadlines

Complaint to a labour officer: within 3 months, by 16 February 2027 (section 47(1))
Any court claim: within 3 years, by 16 November 2029 (section 89)
A continuing wrong: within 12 months after it ends (section 89)

Don't leave this to the last month. The labour officer route and the court route are separate rights (section 47(3)), but the labour officer route closes after three months, and records go missing as time passes.

How to complain

• Ask for the reason in writing, and keep every letter, email and message. You can also ask for your certificate of service (section 51).
• Write a one page timeline: when you started, your pay, what happened and who was there.
• Take this to a labour officer. No advocate can represent a party before the labour officer, but a trade union official can help you (section 48).
• The officer hears both sides and recommends a way to settle it (section 47(2)).
• You can also go to the Employment and Labour Relations Court (section 47(3)).

What you can get

A labour officer can recommend that your employer pays the notice you were owed, the part of your wages already due and any other loss up to the end of that notice period, or a sum of up to 12 months' gross pay (section 49(1)). The officer can also recommend reinstatement or re-engagement (section 49(3)). The court is guided by the same section (section 50).

Twelve months is a ceiling, not a price list. On a gross salary of KES 40,000, the most under this head is KES 480,000, before statutory deductions (section 49(2)). The amount depends on things like how long you served, how much you contributed to what happened, and whether you tried to find other work (section 49(4)).

Do you need 13 months of service?

Don't assume you do. Section 45(3) is still printed in the Act and speaks of 13 months of service, but the High Court declared it inconsistent with the Constitution in Momanyi v Attorney General on 18 May 2012. The case has a later history, linked below, so ask a labour officer about your own case.

Probation is treated differently. Section 42(1) says section 41 doesn't apply when a probationary contract is ended, and section 47(6) says someone let go during a probationary contract can't make a complaint under that section. If you were let go on probation, get advice on your own facts.

Sort out your final pay too

A dispute over the dismissal doesn't cancel what you've already earned. Claim your unpaid salary, leave days and any notice pay. This guide is general information, not legal advice.

• Final dues in Kenya
• Notice period in Kenya
• Track what you sent and when

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