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Iseme, Kamau & Maema Advocates | Kenya | 24 Oct 2018

Fixed-term employment contracts and legitimate expectation for renewal

The underlying understanding between the parties of fixed-term employment contracts is that once the fixed period has ended, the contract is automatically terminated without any further liability on the employer's part on account of unfair termination or redundancy. However, despite this apparently clear intention, Kenyan jurisprudence is awash with claims lodged by employees on the grounds......
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The Offices of Njeri Kariuki | Kenya | 27 Sep 2018

Party misconduct and escalating arbitration costs: who's to blame?

Section 19A of the Arbitration Act was introduced to add statutory clout to party obligations, including the need for expedition during proceedings to minimise unnecessary expenditure. Despite Section 19A's mandate that parties fully cooperate in order to expedite the arbitral process, party misconduct remains an issue. Arbitrators must ensure that all of the minutes and orders for direction,......
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Iseme, Kamau & Maema Advocates | Kenya | 18 Apr 2018

Constructive dismissal – novel remedy for harassed employees

Normally, when an employee resigns, he or she is not entitled to claim damages against the employer. Indeed, if the employee resigns without giving the requisite contractual notice, the employer is entitled to recover the pay in lieu of notice through legal proceedings and there is usually no valid defence to such a claim. However, constructive dismissal is treated as a dismissal by the......
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Iseme, Kamau & Maema Advocates | Kenya | 28 Mar 2018

Why Kenya needs law on transfer of employees

Since 2007 Kenya has had one of the most robust labour law regimes in the world. The Employment and Labour Relations Court is famed worldwide for its pro-employee ideology and is known to bend over backwards to ensure that employees who call on it do not go home empty handed. It is therefore surprising that Kenya has not enacted legislation to regulate the seamless transfer of employees from......
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Iseme, Kamau & Maema Advocates | Kenya | 14 Mar 2018

Why 'you're fired!' is no longer law

For a termination to be lawful, the employer must have a valid reason and adopt a fair termination process. Further, the reasons must be given before the termination takes place. The law does not require that the employee accept the reasons given, but if the employee disputes their validity, he or she could challenge the termination on grounds of unfairness. As it is unrealistic to expect an......
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Iseme, Kamau & Maema Advocates | Kenya | 21 Feb 2018

Restrictive covenants in employment contracts

The validity and enforceability of restrictive covenants during the employment period is usually not debatable. However, what frequently results in litigation is whether and to what extent these restrictive covenants are enforceable after the termination of employment. For a restrictive covenant to stand, the employer must demonstrate that it has a legitimate proprietary interest and that the......
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Njoroge Regeru & Company | Kenya | 9 Feb 2016

Contemnor's right of audience

Failure to grant a contemnor the right of audience in an appeal or application for stay of execution of orders limits a fundamental right provided for by the Constitution and leads to an abuse of judicial power and unenforceable orders. Despite the value of the law on contempt of court, a contemnor's right of audience should not be limited arbitrarily. Contempt proceedings should not be used......
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Njoroge Regeru & Company | Kenya | 2 Jun 2015

Admissibility of polygraph tests in court

The Evidence Act does not provide directly for the use of lie detectors or the admissibility of polygraph reports in court. However, it does provide for the admissibility of computer-generated reports, with certain qualifications. Written consent from the tested parties will demonstrate that a lie detector test was not taken under duress or undue influence. The signature of an agreement ought......
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Njoroge Regeru & Company | Kenya | 13 Mar 2015

Interests under which land can be held in Kenya

The Kenyan Constitution guarantees the right of every individual to acquire and own land in Kenya, either individually or in association with others. Kenyan citizens have the right to own land of any description in any part in Kenya, and they cannot be deprived of this right except under exceptional circumstances. Foreigners can hold land in Kenya only under a leasehold tenure not exceeding a......
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Njoroge Regeru & Company | Kenya | 1 Jul 2014

High Court rules judiciary is not under Parliament's control

The new Constitution heralded a new dawn in the management of public affairs. Conflict and competition ensued among the three arms of government and the courts were faced with balancing the respective powers and interests of the three institutions. In recognition of the constitutional issues involved, the chief justice constituted a five-judge bench to hear the issues around the doctrine of......
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