Employment Contract in Kenya: 7 Clauses That Violate the Employment Act 2007 (2026)

Seven specific contract clauses routinely appear in Kenyan employment agreements that are unenforceable or outright illegal under the Employment Act 2007 (Cap. 226). Employers who rely on them face statutory penalties; employees who sign them are not bound by them. Here is what to look for and why each clause fails.

Why this matters right now

The Employment and Labour Relations Court has seen a steady rise in claims tied to poorly drafted contracts. Many companies — particularly in the gig economy, domestic work, and retail sectors — still circulate template agreements written before the Employment Act 2007 came into force, or copied from jurisdictions where labour law is less protective. The Act applies to every employee working in Kenya regardless of nationality, and its provisions on notice, deductions, and working hours cannot be contractually waived.

Clause 1: Zero-hours arrangements that call themselves "employment"

A contract that labels someone an "employee" while specifying no guaranteed working hours, no minimum pay, and no obligation to offer work is internally contradictory. Under section 35 of the Employment Act 2007, an employer must provide an employee with written particulars of employment that include — among other things — remuneration and the hours of work. A contract that leaves all of this blank or "to be agreed at the time" does not satisfy section 35 and cannot establish the statutory minimum entitlements the Act attaches to the employment relationship.

Zero-hours arrangements are not expressly prohibited in Kenya, but labelling such an arrangement "employment" and then denying the benefits that flow from that status (annual leave under section 28, sick leave under section 30, notice under section 35) creates an actionable inconsistency. Courts have repeatedly refused to give effect to arrangements that are structured to capture the productivity benefits of employment while stripping the statutory protections.

Clause 2: Notice periods shorter than the statutory minimum

Section 35(1) of the Employment Act 2007 sets minimum notice periods based on the length of service. An employee whose pay is calculated weekly is entitled to not less than seven days' notice after two months of continuous service. Monthly-paid employees are entitled to 28 days' notice. A contract that specifies a shorter period — say, "one week's notice regardless of tenure" or "notice at the employer's discretion" — is void to the extent it undercuts the statutory minimum.

The Act also makes clear that the employer may pay in lieu of notice (section 36), but the payment must be equivalent to the remuneration the employee would have earned during the notice period. A clause allowing the employer to end the contract "immediately without payment" outside of grounds for summary dismissal under section 44 is unenforceable.

Clause 3: Wage deductions not authorised under section 19

Section 19 of the Employment Act 2007 is one of the most frequently violated provisions in Kenyan employment contracts. The section lists the only circumstances under which an employer may make deductions from an employee's wages: statutory deductions (PAYE, NSSF, NHIF/SHIF, Housing Levy), court-ordered deductions, and deductions expressly consented to in writing by the employee for a specific, named purpose.

Contracts that allow deductions for "damage to company property at the employer's sole assessment," "training costs to be recovered if the employee resigns within two years," or "penalties for lateness as determined by management" do not meet the section 19 threshold. A deduction for training costs may be lawful only if the employee has signed a separate, specific written agreement authorising the exact amount — a blanket clause in the main contract is not sufficient.

The penalty for unlawful deduction is recovery of the full amount deducted plus damages under section 49.

Clause 4: Maternity and paternity leave conditions that attach strings

Section 29 of the Employment Act 2007 gives female employees three months of fully paid maternity leave. Section 29(8) of the same Act gives male employees two weeks of fully paid paternity leave. The Employment (Amendment) Act 2021 inserted a further provision — section 29A — which grants one month of fully paid pre-adoptive leave to employees who obtain care and control of a child through adoption. A contract clause that makes maternity pay conditional on the employee returning to work for a minimum period (common in older templates), or that counts maternity leave against the employee's annual leave balance, directly conflicts with these provisions and is void.

Any clause requiring an employee to "repay" maternity benefits if she does not return is unenforceable. The Act makes no such provision, and such a clause would constitute an unlawful deduction under section 19 if the employer actually sought to recover the money.

Clause 5: Overtime waivers and flat salary clauses that extinguish overtime rights

The Employment Act 2007, read alongside the Regulation of Wages (General) Order, requires that hours worked beyond normal working hours be compensated at a rate of at least 1.5 times the normal rate (or double time on public holidays and Sundays). A contract clause stating that the employee's salary is "inclusive of all overtime" without specifying what normal working hours are and without confirming the salary satisfies the minimum rate calculation is vulnerable to challenge.

Courts have disallowed blanket overtime waiver clauses where the effective hourly rate — after accounting for hours actually worked — falls below the applicable minimum wage under the relevant wage order. An employer cannot use a lump-sum salary clause to circumvent sectoral wage orders issued by the Salaries and Remuneration Commission.

Clause 6: Unilateral variation clauses giving employers unrestricted power to change terms

A clause reading "the employer reserves the right to amend the terms of this contract at any time without prior notice" is fundamentally incompatible with the scheme of the Employment Act 2007. Material changes to the terms of employment — remuneration, duties, place of work — require the employee's consent or, where the employer claims operational justification, compliance with the retrenchment and redundancy procedure under section 40.

A unilateral downgrade in pay or a forced change of role without consent can constitute constructive dismissal under the Employment Act 2007, entitling the employee to claim wrongful termination. The clause does not make such a dismissal lawful; it simply means the employer has documented the mechanism by which they plan to breach the contract.

Clause 7: Probationary periods exceeding six months without statutory basis

Section 42 of the Employment Act 2007 permits a probationary period of not more than six months. Some contracts specify probation of 12 months, with language indicating the employer may "extend probation indefinitely at its discretion." That extension power is not available under the Act — probation must end and the employee must either be confirmed or separated through a lawful termination process.

During probation the employer may terminate with seven days' notice under section 42(2), but only while the probationary period is running. Once that period has lapsed — whether or not the contract says so — the employee moves onto the standard termination protections under sections 43 to 45. A contract cannot contractually resurrect a probationary regime after the statutory six months have elapsed.

What a compliant contract must include

A lawful employment contract in Kenya should set out the particulars required by section 10 of the Employment Act 2007: the full names of the employer and employee, the date employment begins, the job title and description, the place of work, remuneration and the method of its calculation, the hours of work, the entitlement to leave, the notice period (at least equal to the statutory minimum), and any probationary period. Every deduction must be named and authorised in writing.

Forms-legal.com offers a Kenya employment contract that reflects the current Employment Act 2007 requirements, including the 2021 amendments on paternity leave.

What to do if your current contract has these clauses

Employees bound by contracts containing the clauses above are not bound by the illegal provisions — the Act's protections apply as a matter of law regardless of what the paper says. However, awareness of the problem is only half the work. Before resigning or filing a claim, an employee should:

1. Document the clause in writing and keep a copy of the signed contract.
2. Calculate the statutory entitlement being denied — unpaid leave, unlawful deductions, insufficient notice pay.
3. Raise the issue internally first, since many employers will correct the contract rather than face a complaint to the Director of Employment or a claim in the Employment and Labour Relations Court.

Employers who discover their template contracts contain the above clauses should seek to renegotiate and replace them. Relying on void provisions does not make those provisions unenforceable only in theory — the ELRC has full power under the Employment and Labour Relations Court Act (Cap. 234B) and section 49 of the Employment Act to award compensation, order reinstatement, and impose costs.

The Employment Act 2007 (Cap. 226) is the primary statute governing employment relationships in Kenya. References are to the Act as amended by the Employment (Amendment) Act 2021.