How to Draft Employment Contracts & Probation Clauses in Kenya

A handshake or verbal agreement is insufficient under Kenyan law. Under Section 9 of the Employment Act, an employer must provide a written contract of employment within two months of an employee starting work.

Mandatory Terms Every Contract Must Include

To be enforceable, a written contract must explicitly outline:

• Job title, description, and primary place of work.
• Wages, payment intervals, and allowable statutory payroll deductions (NSSF, SHIF, Housing Levy, PAYE).
• Working hours, rest days, and overtime policies.
• Statutory leave entitlements.
• Termination notice periods for both parties.

Mastering Probation: Rules and Pitfalls

A probationary period allows you to evaluate suitability before committing long-term. However, employers frequently fall into legal traps:  

1. Duration Cap: Probation cannot exceed 6 months in the first instance. It can only be extended once for up to another 6 months (maximum 12 months total) with the employee's written consent.  
2. The "Automatic Confirmation" Trap: If an employee's probation period ends and you continue to employ them without issuing a written extension or confirmation letter, they are legally deemed automatically confirmed on permanent terms. You can no longer use simplified probation termination rules.  
3. Notice & Procedural Rights During Probation: Either party can terminate a probation contract with 7 days' written notice (or 7 days' pay in lieu of notice).  

Crucial Judicial Ruling: Following Landmark ELRC rulings, employers must give reasons and hold a brief fair hearing (Section 41) before terminating an employee even during probation. Summarily firing a probationer without explaining performance deficiencies or offering an explanation opportunity is considered unfair termination.