Unfair Termination in Kenya: Know Your Rights as an Employee

Published: June 2026 | Last Reviewed: June 2026 | By Victor Mulindi, Khayesi & Khayesi Advocates LLP | 7 min read

Table of Contents

1. The Scenario: When Losing Your Job Feels Wrong
2. What Is Unfair Termination Under Kenyan Law?
3. The Legal Framework: Key Sections of the Employment Act, 2007
4. Substantive Fairness: Was There a Valid Reason?
5. Procedural Fairness: Was the Right Process Followed?
6. Prohibited Grounds for Termination Under Section 46
7. What Are Your Rights as an Employee After Termination?
8. Remedies Available: What You Can Claim
9. How to File a Claim: Step-by-Step
10. A Practical Kenyan Scenario
11. Frequently Asked Questions
12. Sources and References

1. The Scenario: When Losing Your Job Feels Wrong {#scenario}

You arrive at work on a Monday morning and are handed a letter. No hearing. No warning. No explanation beyond a vague reference to “restructuring” or “company policy.” By the end of the day, you have been escorted out of the building with a box of your belongings.

Scenes like this play out in Kenyan workplaces every week – in corporate offices along Upperhill, in factories along Mombasa Road, and in SMEs across the country. The shock of dismissal is compounded by a feeling that something legally wrong has just occurred.

That instinct is frequently correct.

Kenya’s Employment Act, 2007 establishes robust protections for employees against arbitrary, procedurally defective, and substantively unjustifiable dismissal. Understanding those protections is the first step toward asserting your rights – and toward recovering what the law entitles you to.

2. What Is Unfair Termination Under Kenyan Law? {#definition}

Unfair termination is the dismissal of an employee by an employer that either lacks a valid substantive reason, fails to follow a fair procedure, or both.

The governing statute is the Employment Act, 2007 (No. 11 of 2007), which declares at Section 45(1): “No employer shall terminate the employment of an employee unfairly.”

That single provision is deceptively powerful. It imposes a dual obligation on every employer in Kenya. A termination is only lawful when it satisfies both of the following tests simultaneously:

• Substantive fairness – the reason for termination must be valid and fair.
• Procedural fairness – the manner in which the termination is carried out must follow the process prescribed by law.

Failing either test – even where the other is satisfied – renders the dismissal unfair in the eyes of the Employment and Labour Relations Court (ELRC).

The Employment and Labour Relations Court (ELRC) is the specialist court established under Article 162(2)(a) of the Constitution of Kenya, 2010 and the Employment and Labour Relations Court Act, 2011 to handle employment and labour disputes in Kenya.

3. The Legal Framework: Key Sections of the Employment Act, 2007 {#legal-framework}

The following provisions of the Employment Act, 2007 are central to any unfair termination claim:

Each of these sections forms an interlocking framework. Courts – particularly the ELRC – apply them together when determining whether a dismissal was fair or unfair.

4. Substantive Fairness: Was There a Valid Reason? {#substantive-fairness}

Under Section 43 of the Employment Act, the burden of proving the reason for termination falls entirely on the employer. If an employer cannot prove a valid reason, the termination is automatically deemed unfair.

Valid reasons for termination recognized under the Employment Act relate to:

• Conduct – genuine misconduct by the employee (e.g., dishonesty, insubordination, theft).
• Capacity – demonstrated inability to perform the job (e.g., persistent poor performance, incapacity due to illness).
• Compatibility – irreconcilable incompatibility between the employee and the role or workplace.
• Operational requirements – genuine redundancy where the employer’s business requirements result in a position becoming superfluous.

Importantly, Section 45(2) of the Employment Act provides that a termination is unfair where:

(a) the reason for the termination is not valid; (b) the reason is not a fair reason based on the employee’s conduct, capacity, or the employer’s operational requirements; or (c) the employer did not follow a fair procedure.

The ELRC has consistently held that an employer must prove not merely that a reason exists, but that the reason is genuine, proportionate, and justifiable in the circumstances. A reason that is pretextual – for example, citing “poor performance” where no performance reviews or warnings were ever issued – will not withstand judicial scrutiny.

5. Procedural Fairness: Was the Right Process Followed? {#procedural-fairness}

Even where an employer has a substantively valid reason for termination, the dismissal will be unlawful if the correct procedure is not followed. Section 41 of the Employment Act sets out the minimum procedural requirements before any dismissal for misconduct or poor performance.

The Section 41 Procedure

Before terminating an employee, the employer must:

1. Notify the employee in writing of the allegations or reasons for the proposed termination – in a language the employee understands.
2. Allow the employee reasonable time to prepare a response.
3. Hold a fair hearing at which the employee is given a genuine opportunity to respond to the allegations.
4. Allow the employee to be accompanied by a fellow employee or a trade union representative of their choice.
5. Communicate the outcome in writing – stating the decision and the reasons for it clearly.

The ELRC has repeatedly emphasized that these steps are mandatory, not discretionary. In Modern Mail Limited v Omolo (Appeal E027 of 2024) [2025] KEELRC 1043 (KLR), the court found a summary dismissal unfair where the employer had conducted a hurried hearing without allowing the employee representation or the opportunity to examine witnesses. The court awarded compensation despite finding that the employer had some factual grounds for the dismissal.

The principle established through this and similar decisions is clear: procedural fairness is not a formality – it is a constitutional and statutory right.

Constructive Dismissal

A distinct but closely related concept is constructive dismissal – where an employer does not formally terminate an employee but makes the working environment so hostile, intolerable, or fundamentally altered that the employee has no reasonable option but to resign. Kenyan courts treat constructive dismissal as a form of unfair termination. The employee who resigns under these circumstances retains the right to claim as though they were dismissed.

6. Prohibited Grounds for Termination Under Section 46 {#prohibited-grounds}

Certain grounds for termination are expressly prohibited under Section 46 of the Employment Act. A termination for any of the following reasons is automatically unfair, regardless of procedure:

• Union membership or participation in lawful trade union activities.
• Seeking to enforce a right conferred by the Employment Act.
• Pregnancy or any reason connected with the employee’s pregnancy.
• The employee’s race, colour, tribe, sex, religion, political opinion, national extraction, nationality, social origin, marital status, HIV status, or disability.
• Filing a complaint or participating in proceedings against the employer.
• Absence from work during maternity or paternity leave.

These protections are reinforced by Article 41 of the Constitution of Kenya, 2010, which guarantees every worker the right to fair labour practices, and by Article 27, which prohibits discrimination in any form. Courts apply constitutional values directly when assessing discrimination-based termination claims, often awarding enhanced compensation.

7. What Are Your Rights as an Employee After Termination? {#employee-rights}

Beyond the right not to be unfairly terminated, an employee in Kenya has the following concrete rights upon the termination of employment:

Right to Notice or Pay in Lieu

Under Section 35 of the Employment Act, an employee is entitled to written notice before termination – or payment of a sum equivalent to the wages due for the notice period if notice is not given. Notice periods depend on the terms of the employment contract. Statutory minimum notice for monthly-paid employees is 28 days; for weekly-paid employees, 7 days.

Right to Reasons for Termination

An employee is entitled to receive the reason for their termination in writing. Section 43 of the Employment Act requires the employer to prove the reason for termination; logically, this presupposes that the employee is informed of those reasons.

Right to a Fair Hearing

Under Section 41 of the Employment Act, every employee facing termination for misconduct or poor performance has the right to be heard before a decision is made – including the right to be accompanied by a representative.

Right to Terminal Dues

An employee is entitled to all outstanding terminal benefits at the date of termination, including:

• Accrued but unused annual leave days.
• Any outstanding salary or allowances.
• Severance pay where redundancy applies (minimum 15 days’ pay per completed year of service under Section 40 of the Employment Act).
• Any other contractual entitlements.

Right to a Certificate of Service

Under Section 51 of the Employment Act, every employer is obligated to issue a Certificate of Service upon the termination of employment. This document confirms the nature and duration of the employment and is important for the employee’s future career.

Right to Claim Unfair Termination

An employee who believes their termination was unfair has the right to lodge a formal claim – either before a Labour Officer or directly before the ELRC – within the time limits prescribed by law.

Critically, following the Court of Appeal’s landmark ruling in Civil Appeal No. 321 of 2019, which reaffirmed the High Court decision in Samuel G. Momanyi v Attorney General and Another [2012] eKLR, the constitutional protection against unfair termination extends to all employees regardless of their length of service. The previous 13-month minimum service threshold under Section 45(3) of the Employment Act has been declared unconstitutional, meaning a person employed for even a few months can claim unfair termination if due process was not followed.

8. Remedies Available: What You Can Claim {#remedies}

Under Section 49 of the Employment Act, 2007, if the ELRC or a Labour Officer finds that a termination was unfair, the following remedies are available:

Reinstatement

The court may order that the employee be returned to their previous position as if the dismissal had never occurred – with no loss of seniority, benefits, or remuneration. Reinstatement is most appropriate where the employment relationship can still be sustained and where the employee wishes to return.

Re-engagement

Where reinstatement is not practical (for example, where the role no longer exists or where the relationship has broken down irretrievably), the court may direct re-engagement – placing the employee in a comparable role with the same employer.

Compensation for Unfair Termination

The court may award monetary compensation of up to 12 months’ gross salary for unfair termination. In practice, awards across the ELRC range from 2 to 12 months depending on the following factors the court considers under Section 50 of the Employment Act:

• The length of service of the employee.
• The employee’s conduct during the employment.
• The circumstances of the termination.
• Whether the employer followed any procedure at all.
• The employee’s efforts to mitigate their loss after dismissal.

Payment in Lieu of Notice

Where proper notice was not given, the employer is ordered to pay the employee the wages that would have been earned during the notice period.

Terminal Benefits

Any outstanding accrued entitlements – unpaid wages, leave pay, severance, and contractual dues – are ordered to be paid in full.

The ELRC’s 2025 decision in Mugumo Munene v Nation Media Group Limited [2020] KEELRC 228 (KLR) (upheld on appeal in Civil Appeal E603 of 2021 [2025] KECA 114 (KLR)) is instructive. The employee was served a redundancy letter on the same day without any prior consultation, in violation of procedural requirements. The court declared the termination unfair and awarded compensation of approximately KES 3.8 million – a figure upheld by the Court of Appeal.

9. How to File a Claim: Step-by-Step {#how-to-file}

If you believe your termination was unfair, you should act promptly. The following steps set out the process:

Step 1 – Secure Your Termination Letter Request and retain the written termination letter. The letter – and what it does or does not contain – forms a central piece of evidence in any claim.

Step 2 – Gather Supporting Documents Collect your employment contract, payslips, any warning letters, performance reviews, correspondence with management, and the names of potential witnesses. Evidence of the lack of a fair hearing is particularly valuable.

Step 3 – File a Complaint with the Labour Office Under Section 47(1) of the Employment Act, you may lodge a complaint with a Labour Officer at the nearest Labour Office within 3 months of the date of dismissal. The Labour Officer will conciliate between the parties and may recommend a settlement.

Step 4 – Escalate to the Employment and Labour Relations Court If conciliation does not resolve the matter, or if you choose to proceed directly to court, a claim may be filed at the ELRC. The limitation period for claims at the ELRC is 3 years from the date of termination. The ELRC has jurisdiction across all of Kenya and can order all the remedies described in Section 8 above.

Step 5 – Engage an Employment Advocate Navigating employment claims before the ELRC – including drafting the Memorandum of Claim, attending case management conferences, and conducting the hearing – requires specialist legal knowledge. KNK Advocates’ Employment and Labour Law practice advises employees at every stage of this process.

10. A Practical Kenyan Scenario {#practical-scenario}

Consider the situation of a sales executive employed by a Nairobi-based technology company. After five years of service and consistently positive performance reviews, she is called into a meeting and handed a termination letter citing “operational restructuring.” No prior notice was given. No hearing was conducted. No severance was offered beyond the current month’s salary.

Under the framework described above, this termination is vulnerable on multiple grounds: the employer has not demonstrated a genuine redundancy process, no Section 41 hearing was held, and the employee was not given an opportunity to respond or to have a representative present. She has a strong basis to claim unfair termination before the ELRC, seek compensation of up to 12 months’ gross salary, all terminal dues, and a Certificate of Service.

This scenario is not exceptional – it is common. And it is precisely why KNK Advocates’ Employment and Labour Law team exists: to ensure that employees who are wrongfully deprived of their livelihoods have access to the legal expertise needed to recover what the law provides.

Under Section 45 of the Employment Act, 2007, unfair termination occurs when an employer dismisses an employee without proving a valid and fair reason for the dismissal, or without following the fair hearing procedure required under Section 41 of the Act – or both. Every employer in Kenya must satisfy both substantive fairness (a legitimate reason related to the employee’s conduct, capacity, or the employer’s operational requirements) and procedural fairness (proper notice, a fair hearing, and written communication of the outcome) before terminating any employee. Compensation for unfair termination can reach up to 12 months’ gross salary under Section 49 of the Employment Act.

11. Frequently Asked Questions {#faq}

What is the difference between unfair termination and wrongful termination in Kenya? Unfair termination is a statutory concept defined in Section 45 of the Employment Act, 2007. It focuses on whether the employer had a valid reason and followed a fair procedure. Wrongful termination is a broader term sometimes used interchangeably, but strictly refers to a dismissal that breaches the terms of the employment contract. Both can give rise to claims before the ELRC. KNK Advocates regularly advises clients on the distinction and the most effective basis on which to pursue a claim.

How long do I have to file an unfair termination claim in Kenya? You have 3 months to file a complaint with the Labour Office under Section 47 of the Employment Act. If you choose to file directly at the Employment and Labour Relations Court, the limitation period is 3 years from the date of termination. Acting promptly is strongly advised, as delay can affect the credibility of your claim and limit available remedies.

Can I be dismissed without a hearing in Kenya? Not for misconduct or poor performance. Section 41 of the Employment Act mandates that before terminating an employee for these reasons, the employer must notify the employee of the allegations, provide an opportunity to respond, and allow the employee to be accompanied by a representative. Dismissal without this process is procedurally unfair, even where the underlying reason may be valid.

What is the maximum compensation I can receive for unfair termination? Under Section 49 of the Employment Act, the ELRC may award up to 12 months’ gross salary as compensation for unfair termination. In addition, the court may order payment in lieu of notice, accrued leave pay, severance pay, and any other outstanding terminal benefits. The total award depends on the facts of your case – including your length of service and the degree of procedural violation.

Can an employee on probation claim unfair termination in Kenya? Yes. Following the Court of Appeal’s ruling declaring Section 45(3) of the Employment Act unconstitutional, all employees – regardless of their length of service, including those on probation – are entitled to due process before dismissal. A probationary contract does not remove the employer’s obligation to act fairly and in accordance with the Employment Act.

What is constructive dismissal and can I claim it? Constructive dismissal occurs when an employer’s conduct – such as demotion, harassment, or a unilateral reduction in pay or responsibilities – makes the working environment so intolerable that the employee is effectively forced to resign. Kenyan courts treat constructive dismissal as a form of unfair termination, entitling the employee to the same remedies as an express dismissal. If you believe you were forced to resign, seek legal advice immediately.

Does my employer have to give me a certificate of service? Yes. Section 51 of the Employment Act requires every employer to issue a Certificate of Service upon the end of the employment relationship, regardless of the circumstances. Refusal to issue one is a breach of statute and can itself form part of a claim.

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⚠️ Legal Disclaimer

The content of this article is published by Khayesi & Khayesi Advocates LLP for general informational and educational purposes only. It does not constitute legal advice and must not be relied upon as such.

Reading this article does not create an advocate-client relationship between you and Khayesi & Khayesi Advocates LLP or any of its advocates. The information provided reflects Kenyan law as at the date of publication and may not account for subsequent legislative changes, court decisions, or the specific facts of your situation.

Legal advice is fact-specific. A position that applies generally may not apply to your circumstances. To receive formal legal advice on your matter, you must formally engage Khayesi & Khayesi Advocates LLP by entering into a signed Letter of Engagement, at which point an advocate-client relationship will be established and privileged legal advice can be provided.

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Sources and References {#sources}

1. Employment Act, 2007 (No. 11 of 2007) – Sections 35, 40, 41, 43, 44, 45, 46, 47, 49, 50, 51. Available at: https://new.kenyalaw.org/akn/ke/act/2007/11/eng@2024-04-26
2. Constitution of Kenya, 2010 – Articles 27, 41, and 162(2)(a). Available at: https://new.kenyalaw.org
3. Employment and Labour Relations Court Act, 2011 – Establishment of the ELRC jurisdiction.
4. Samuel G. Momanyi v Attorney General and Another [2012] eKLR – Declaration of unconstitutionality of Section 45(3) (13-month service threshold). Available at: http://kenyalaw.org/caselaw/
5. Court of Appeal, Civil Appeal No. 321 of 2019 – Reaffirming unconstitutionality of Section 45(3); Cornel Otieno Omondi matter.
6. Pius Machafu Isindu v Lavington Security Guards Limited [2017] eKLR – ELRC on employer’s burden of proof of substantive reasons.
7. Kenfreight (E.A.) Limited v Benson K. Nguti, Civil Appeal No. 31 of 2015 – Court of Appeal on instances amounting to unfair termination.
8. Modern Mail Limited v Omolo (Appeal E027 of 2024) [2025] KEELRC 1043 (KLR) – Procedural fairness mandatory even in gross misconduct cases.
9. Mugumo Munene v Nation Media Group Limited [2020] KEELRC 228 (KLR) and Nation Media Group Limited v Munene (Civil Appeal E603 of 2021) [2025] KECA 114 (KLR) – Unfair redundancy; KES 3.8 million compensation upheld.
10. Chege v Marketforce Technologies Limited (Cause E890 of 2023) [2025] KEELRC 905 (KLR) – Employer fined KES 2.1 million for non-compliant redundancy.
11. KNK Advocates – Remedies in Employment Law in Kenya – https://knkadvocates.co.ke/employment-law-kenya-the-remedies/