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Clients ask this one question more than almost any other: "My boss just fired me. Do I have a case?" The details matter enormously. Here is what Kenya's Employment Act 2007 actually says.
The legal test for fair dismissal
An employer shall not terminate a contract of service unfairly. A termination is unfair if the employer fails to prove (a) that the reason for termination was valid and fair and (b) that the termination process was fair
Two limbs must both be satisfied: a valid reason and a fair procedure. Fail either, and the dismissal is unfair — even if there was technically a reason for it.
What counts as a valid reason?
Section 45 lists valid grounds: conduct of the employee, capacity or performance, compatibility, or operational requirements of the employer (redundancy). An employer cannot validly dismiss for trade union membership, filing a workplace complaint, pregnancy, or discriminatory reasons.
What counts as a fair procedure?
The law requires the employer to: (a) notify the employee of the allegations, (b) give the employee a reasonable opportunity to respond, (c) allow the employee to be accompanied or represented, and (d) genuinely consider the employee's response before deciding. Skipping any step is a procedural defect — and Kenyan courts take this seriously.
Under Section 44, an employer may summarily dismiss (without notice) for gross misconduct — including gross dishonesty, wilful disobedience, or conduct dangerous to others. However, "gross misconduct" is not a blank cheque. Courts look at whether the conduct was genuinely serious and whether the employer still followed a hearing process. Many employers lose summary dismissal cases not because the act was not serious, but because they skipped the hearing.
Where to file your claim
Claims are filed at the Employment and Labour Relations Court (ELRC), established under the Employment and Labour Relations Court Act 2011 . The Court sits in Nairobi and several other counties. The limitation period is three years from the date of dismissal under the Limitation of Actions Act Cap 22.
What you can recover
Under Section 49 of the Employment Act 2007, where a dismissal is found to be unfair, the court may award:
- Re-instatement or re-engagement (rarely ordered in practice)
- Compensation of up to 12 months' gross wages
- Any accrued but unpaid leave, notice pay, and other terminal dues
Note: the 12-month cap is on compensatory damages for unfairness. Unpaid terminal benefits (leave, notice, certificate of service) are claimed separately and are not subject to this cap.
If you have been dismissed, preserve your evidence immediately: your contract, payslips, any written warnings, and any communications about the dismissal.
Dismissed and not sure where you stand?
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If this raises a question specific to your situation, we are glad to talk it through.
This article is general legal information, not legal advice, and does not create a lawyer–client relationship.