Ahmednasir Abdullahi Advocates LLP




The employment relationship between an employer and employees is based on the foundation of trust and interdependence. Good employee relations can empower employees to develop a sense of ownership towards their work thereby being more productive which invariable benefits the employer.

In Kenya the employment relationship is governed by a raft of laws and regulations – anchoring the constitutional right to fair labour practice – the primary one, in respect of terms and conditions of employment, being the Employment Act, 2007.

The Employment Act defines a contract of service as an “agreement oral or written, express or implied, to employ or to serve as an employee for period of time and includes contract of apprenticeship and indentured learnership”.

It is instructive to note that neither the term apprentice nor indentured learner is defined in the Employment Act. Such definition is found in the Industrial Training Act which provides as follows:

  • “indentured learner” means a person, other than an apprentice, who is bound by a written contract to serve an employer for a determined period of not more than two years with a view to acquiring knowledge of a trade in which the employer is reciprocally bound to instruct that person.
  • “apprentice” means a person who is bound by a written contract to serve an employer for such period as the Board shall determine with a view to acquiring knowledge, including theory and practice, of a trade in which the employer is reciprocally bound to instruct that person.

Accordingly, from the foregoing, that there are various categories of employees and therefore it is important from the outset for the employer to determine the nature of engagement of a certain employee depending on the needs of the employer and being cognizant of the protections accorded to employees by law.

In this article, we explore the various types of employment engagements and contracts in Kenya.

  1. Casual employment

Casual employment arises where the terms of engagement provide for payment at the end of each day and the employee is not engaged for more than twenty-four hours at a time.

The casual employee is entitled to one paid rest day after a continuous six days working period.

Where a casual employee is shown to have worked continuously for more than 1 month or intermittently over a period of three months, the Employee ceases to be Casual; The Employment Act deems a casual employee to have been engaged indefinitely.

  • Fixed Term Contracts

These are agreements that provide that employment is to end either after expiry of a fixed period/term (specific date) or on the happening of an event.

General principle under the Kenyan law is that fixed-term employment contracts carry no expectation of renewal. The contract is terminable upon expiry of the term unless the wording of the contract allows for the construction of a reasonable expectation of renewal.

There is no restriction on the number of times and employer can enter into a fixed-term contract or the duration of fixed-term contracts. However, in certain instance, the multiple renewal of a fixed term contract may lead to the interpretation that the employee would actually be deemed to be a permanent employee (see indefinite contracts below) and that the use of fixed term contracts by the employer is a scheme to limit certain employee rights, particularly those attendant to termination procedures and benefits.

  • Indefinite Contracts

Sometimes referred to as “permanent “or “evergreen “contract, it is a contract for an indefinite period. Wages are paid at the end of each month or shorter intervals as may be agreed by the parties.

Though the contract is referred to as permanent, it does not mean it cannot be terminated. Usually, the contracts contain a termination clause that prescribes events that would trigger termination. Notably, termination of employment contracts in Kenya is “not at will”: It is governed by the Employment Act.

An employee under indefinite contract is entitled to all the benefits and rights set out under the Employment Act as enumerated above under fixed term contracts.

  • Probation contracts

A probation contract is a contract of employment, that enables an employer evaluate an employee, before fully engaging the employee on a permanent basis or for a fixed period.

The probation duration is prescribed by law and in certain instance may be extended but only with the consent of the employee.

An employee under indefinite contract is entitled to all the benefits and rights set out under the Employment Act as enumerated above under fixed term contracts.

  • Interns

Interns are not expressly provided for in the Employment Act but may be classified as employees depending on the terms and nature of their engagement.

Notably an intern may be deemed to be either an apprentice or an indentured learner, both which are included in the definition of an employee (see above). Therefore, they are protected by the Act and are entitled to some the benefits available to employees under the Act.

  • Locums

The term locum is not defined or expressly recognized in the Employment Act.  Notwithstanding the foregoing, a Locum could either be deemed to be an independent contractor or an employee (casual employee or fixed term employee).

Where the Locum is engaged to fill in a role for a period of less than a month then he may be viewed as a casual employee. On the other hand, where the Locum is engaged for longer than one month (e.g. to fill in the role of a female employee who has taken maternity leave), it would be prudent to engage such a locum on a fixed term employment contract.

A Locum may also be engaged as an independent contractor, thereby avoiding any employment obligations under Employment law. However merely referring to a locum as an independent contractor is not sufficient. In the event of a dispute, the Courts will make a determination on the true nature of the relationship between the parties. In this regard, see our article on independent contractors.

  • Full time vs. Part time employee:

A contract of service would generally set out the working times of an employee. Accordingly, the law does not specifically distinguish between a full-time employee and a part time employee; such is an administrative distinction within an organisation. The key determination under law is whether a contract of employment existed and whether the employee was afforded all his rights and benefits.

Accordingly, whether an employee works for a portion of a day or for only a number of days in a week, such an employee is entitled to all the rights and benefits under the Employment Act.


The Employment Act provides particulars that must be contained in a contract of employment;

  • Name , age , permanent address and the sex of the employee
  • Name of the employer
  • Job description of the employment
  • Date of commencement of the employment
  • Form and duration of the contract
  • Place of work
  • Hours of work
  • Remuneration , scale of remuneration and method of calculating it
  • Intervals of calculating the remuneration
  • Date of beginning of employee’s period of continuous employment taking into account any previous employment which may count towards that period
  • Any other benefits besides remuneration
  • Any other prescribed matters 

Finally, the employment contract must be issued to an employee no later than two months from the date of employment. Failure to do so constitutes an offence.

This publication does not represent legal advice by its author.

For legal advice contact our partner: Samson Mac’Oduol at samson@ahmednasir.law