Losing a job is stressful, and it is even harder when the dismissal feels unjust. Kenyan law protects employees against unfair termination, and it gives remedies when an employer gets it wrong. This guide explains the key rules under the Employment Act, 2007, what makes a termination unfair, and what you can do about it.
The two tests: a fair reason and a fair procedure
Under section 45 of the Employment Act, a termination is unfair unless the employer proves both of the following.
- A valid and fair reason. The reason must relate to the employee’s conduct, capacity or compatibility, or to the employer’s genuine operational requirements.
- A fair procedure. The employer must have followed a fair process before terminating the employment.
Failing either test is enough to make the termination unfair. A good reason does not cure a bad process, and a careful process does not cure a bad reason.
Once an employee shows that a termination happened, the burden shifts to the employer to justify it.
What a fair procedure looks like
Section 41 requires an employer who is considering termination on grounds of misconduct, poor performance or physical incapacity to do three things:
- explain the reason to the employee in a language the employee understands;
- allow the employee to be accompanied by a fellow employee or, where there is a union, a shop floor representative of the employee’s choice; and
- hear and consider the employee’s representations before deciding.
In practice, this usually means a show cause letter, enough time and information to respond, and a disciplinary hearing before any decision is made.
Summary dismissal
An employer may dismiss an employee summarily, without notice, only for gross misconduct of the kind described in section 44, such as serious neglect of duty, being intoxicated at work or committing a criminal offence against the employer. Even then, the courts expect the employee to have been heard before the decision.
Notice and pay in lieu
Outside gross misconduct, the contract must be terminated with notice. For an employee paid monthly, the minimum notice under section 35 is 28 days unless the contract provides for more. The employer may instead pay salary in lieu of notice.
Redundancy
Redundancy is a lawful reason for termination, but section 40 sets strict conditions. The employer must:
- notify the union, or the employee and the local labour officer, at least a month before the redundancy takes effect;
- apply fair and transparent selection criteria, considering seniority, skill, ability and reliability;
- pay any outstanding leave in cash;
- give notice or pay in lieu; and
- pay severance pay of at least 15 days’ pay for each completed year of service.
A “redundancy” that does not meet these requirements, or that is used to disguise a dismissal, may be found unfair.
Your remedies
Under section 49, where a termination is found to be unfair, the court or labour officer may award:
- wages for the notice period;
- compensation of up to twelve months’ gross salary; and
- in appropriate cases, reinstatement or re-engagement.
Compensation is discretionary. Courts consider factors such as your length of service, your conduct, whether you contributed to the termination, your prospects of finding similar work, and how the employer behaved. Awards commonly fall within a range below the maximum, depending on the facts.
You remain entitled to your final dues regardless of the reason for termination. These include salary for days worked, pay for accrued leave, any agreed benefits, and a certificate of service under section 51.
Where and when to file
You can lodge a complaint with a labour officer, or file a claim in the Employment and Labour Relations Court, or in a Magistrate’s Court designated to hear employment matters. Time limits are important:
- A complaint to a labour officer under section 47 should be made within three months of the dismissal.
- A claim in court must generally be filed within three years of the termination under section 90. For a continuing injury, the claim must be filed within twelve months after it ceases.
The courts enforce these limits strictly, and a strong claim filed late is lost.
Practical steps if you have been dismissed
- Keep everything: your contract, letters, payslips, emails, messages and appraisal records.
- Write down what happened and when, while it is fresh.
- Do not sign a discharge voucher or settlement agreement that waives your claims until you have taken advice on whether the payment is fair.
- Ask in writing for the reasons for termination and for your certificate of service.
Frequently asked questions
Can I be dismissed during probation?
A probationary contract can be ended on shorter notice, and the law has historically offered probationary employees fewer protections. However, courts have held that even probationary employees are entitled to fair treatment. Take advice on your particular circumstances.
My employer says I resigned, but I was forced out. Do I have a claim?
Possibly. Where an employer makes continued employment intolerable, a resignation can amount to constructive dismissal, which may be unfair.
Do I need a lawyer?
You can approach a labour officer or the court on your own. An advocate helps you assess the strength of the claim, quantify it correctly and present the evidence.
How we can help
We advise and represent employees in termination, redundancy and workplace disputes, and we advise employers on fair process. If you believe you have been unfairly dismissed, contact Odek Law Advocates, and remember that time limits apply.
This article provides general information on Kenyan law as at October 2026 and is not legal advice. Please seek advice on your specific situation.