Question 1

PUBLIC PARTICIPATION IN THE MAKING OF STATUTORY INSTRUMENTS IN KENYA- LESSONS FOR REGULATORY AUTHORITIES

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Legal Alert: Public Participation In The Making Of Statutory Instruments In Kenya: Lessons For Regulatory Authorities

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Date:21st July 2026
Legal Alert: Public Participation In The Making Of Statutory Instruments In Kenya: Lessons For Regulatory Authorities
		Authored by Dr. Seth Wekesa & Koko Akumu
																														
A. Introduction
Public participation remains a constitutional and statutory prerequisite in the formulation of legislation, policy and statutory instruments in Kenya. Public participation gives effect to the sovereignty of the people by enabling people affected by public decisions to contribute to the decision-making process. Beyond serving as a procedural requirement, public participation promotes transparency, accountability, legitimacy and public confidence in legislative and regulatory action. Regulatory authorities must therefore ensure that public participation is not treated as a mere formality but as a meaningful process through which stakeholders are informed, consulted and their views considered before decisions are finalized. Failure to undertake meaningful public participation exposes statutory instruments to legal challenge and possible invalidation by the courts.
B. PUBLIC PARTICIPATION FRAMEWORK IN KENYAN
Article 10 of the Constitution identifies participation of the people as a national value and principle of governance. It recognizes public participation as one of the national values and principles of governance binding all State organs, State officers, public officers and citizens whenever they apply or interpret the Constitution, enact or interpret any law, or make or implement public policy decisions. In addition, section 5 of the Statutory Instruments Act, 2013 requires a regulation-making authority, before issuing a statutory instrument, to make appropriate consultations with persons likely to be affected by the proposed instrument. Section 5(3) specifically requires notification, either directly or by advertisement, to persons likely to be affected by the proposed regulation. In British American Tobacco Kenya PLC v Cabinet Secretary for the Ministry of Health & 2 Others; Kenya Tobacco Control Alliance & another (Interested Parties); Mastermind Tobacco Kenya Ltd (Affected Party) (Petition 5 of 2017) [2019] KESC 15 (KLR), the Supreme Court of Kenya held that public participation must be real, meaningful and purposive. The court highlighted the following principles of public participation:

A constitutional principle under article 10(2) of the Constitution, public participation applies to all aspects of governance.
The public officer and or entity charged with the performance of a particular duty bears the onus of ensuring and facilitating public participation.
The lack of a prescribed legal framework for public participation is no excuse for not conducting public participation; the onus is on the public entity to give effect to this constitutional principle using reasonable means.
Public participation must be real and not illusory. It is not a cosmetic or a public relations act. It is not a mere formality to be undertaken as a matter of course just to fulfil a constitutional requirement. There is need for both quantitative and qualitative components in public participation.
Public participation is not an abstract notion; it must be purposive and meaningful. f. Public participation must be accompanied by reasonable notice and reasonable opportunity. Reasonableness will be determined on a case-by-case basis.
Public participation is not necessarily a process consisting of oral hearings; written submissions can also be made. The fact that someone was not heard is not enough to annul the process.
Allegation of lack of public participation does not automatically vitiate the process. The allegations must be considered within the peculiar circumstances of each case: the mode, degree, scope and extent of public participation is to be determined on a case-by-case basis.

C. PARAMETERS OF MEANINGFUL PUBLIC PARTICIPATION
For public participation to meet the constitutional and statutory threshold, regulation-making authorities should ensure that the process satisfies the following key parameters:
1. Clarity of the subject matter
A regulation-making entity should define the purpose, scope and likely effect of the proposed regulations in a language that the affected public can understand. It should publish the draft instrument together with an explanatory memorandum that identifies the problem the instrument seeks to address and explains the obligations, rights, costs, or administrative burdens that may arise. Where the regulations is technical, the public entity should pro vide summaries, sector-specific briefs or translated materials where appropriate. The regulation-making entity should ensure that the public has sufficient information to participate meaningfully. This includes implementing measures to ensure persons with disabilities can access the proposed regulations.
2. Simple and accessible structures and processes. 
The regulation-making entity should select participation methods that are practical for the affected stakeholders. Depending on the subject matter of the proposed regulations, this may include written submissions, in-person forums, virtual meetings, county-level consultations, sector roundtables, public barazas, radio announcements, newspaper notices, website publication and targeted notices to known affected groups. Accessibility also requires reasonable timelines, clear submission channels, contact persons, and venues or platforms that affected persons can realistically use. For in-person forums, the regulation-making entity should ensure that appropriate accessibility measures are in place for persons with disabilities (PWDs). Where a significant proportion of the affected persons have limited literacy, the entity should provide translation or other appropriate communication support to ensure that all persons have an equal
3. Opportunity for balanced influence. 
Public participation should not be designed merely to confirm a predetermined outcome. The regulation-making entity should invite comments before finalizing the proposed legislation to allow stakeholders to raise objections and alternatives. The regulation-making entity should consider the comments and provide justifications on why it adopts, modifies, or rejects them. The best practice is to prepare a stakeholder comments matrix that sets out the issue raised, the stakeholder who raised it, the Authority s response, and whether the proposed amendment was adopted or rejected, with reasons. This demonstrates that public participation influenced the final instrument rather than being a symbolic exercise.
Commitment to the process. 
The duty to facilitate participation should be integrated into the law-making process from the outset. A regulation-making entity should prepare a public participation plan, allocate adequate time and resources and designate responsible officers or committee members to oversee the process. Public participation should not be treated as an afterthought once substantive decisions have already been made. The regulation-making entity should also be able to justify its choices regarding timelines, venues, modes of engagement and stakeholder coverage. The Courts have continuously rejected a rigid one-size-fits-all approach and ordered a process that demonstrates a genuine commitment to the constitutional value of public participation. In Independent Electoral and Boundaries Commission (IEBC) v National Super Alliance (NASA) Kenya & 6 others, the Court of Appeal held that meaningful public participation requires reasonable notice, a reasonable opportunity to participate, adequate information on the purpose of the engagement and mechanisms capable of reaching the widest possible audience.
4. Inclusive and effective representation. 
The regulation-making entity should identify and map all categories of persons likely to be affected by the proposed regulations, including industry or sector players, consumers, vulnerable groups, county governments, professional bodies, academia, civil society, traders, informal sector actors, and geographically dispersed communities, where relevant. It should avoid limiting consultation to the most visible or organized stakeholders if the pro posed measure affects a wider public. In Gakuru & others v Governor Kiambu County & 3 others (Petition 532 of 2013 & 12, 35, 36, 42 & 72 of 2014 & Judicial Review Miscellaneous Application 61 of 2014 (Consolidated)) [2014] KEHC 7516 (KLR) (17 April 2014) (Judgment), the High Court cautioned that public bodies must take reasonable steps to ensure that affected persons are aware of intended legislation and are given a genuine opportunity to participate. The Court observed that merely relying on limited publicity or convening a small group of participants may not satisfy the constitutional threshold, particularly where the proposed measure has significant public impact.
5. Integrity and transparency of the process. 
The regulation-making entity should maintain a clear evidentiary record of the participation process. This includes notices, proof of publication, invitations, attendance registers, minutes, written submissions, recordings where available, reports of public forums, and a summary of how submissions were considered. Proper documentation enables a legislative or regulation-making entity to demonstrate when consultation occurred, who participated, what information was shared, what submissions were received and how those submissions informed the final statutory instrument. In Omogo v Energy and Petroleum Regulatory Authority & 3 others (Petition E789 of 2025) [2026] KEHC 9563 (KLR) (Constitutional and Human Rights) (1 July 2026) (Judgment), the Court emphasized that assertions of public participation are insufficient without documentary evidence demonstrating the nature, timing and extent of the consultation process. The Court upheld the Parliamentary Committee&#8217;s decision to reject the proposed regulations because the consultation process did not meet the constitutional and statutory requirements. The effect of this decision is that even when a regulatory body asserts that consultations occurred, failure to produce clear documentary evidence may expose the resulting regulations to legal challenge.
6. Capacity to engage. 
The regulation-making entity should ensure that affected per sons have sufficient information and understanding to participate effectively. This may require public education, simplified summaries, translation, sector briefings, technical workshops, or additional time where the pro posed legislation is complex. Where the subject matter affects livelihoods, imposes compliance costs or regulates specialized sectors, the entity should explain the practical implications before seeking public views. The legislative or regulation-making process should conduct adequate sensitization as part of meaningful participation.
D. KEY TAKE-AWAYS FOR REGULATION-MAKING AU THORITIES 
Regulation-making authorities should:

Conduct a stakeholder map ping to identify all persons and groups likely to be affect ed by the proposed regulations.
Publish notices in good time and through channels that are accessible to the affected public, including targeted notices where appropriate.
Make the draft regulations, explanatory memorandum and relevant supporting materials available in a clear and understandable form.
Provide reasonable time for review and submissions, taking into account the nature, complexity and likely impact of the proposed instrument.
Use diverse and inclusive engagement methods suitable for affected stakeholders such as stakeholder forums, written submissions, virtual meetings, county-level consultations and public sensitization sessions.
Maintain complete and accurate records of public participation including attendance records, copies of notices, proof of publication, submissions received and minutes or reports of consultation forums.
Prepare a stakeholder comments matrix showing the issues raised, the Authority s response, and the extent to which the comments influenced the final instrument.

E. CONCLUSION 
Public participation in Kenya requires more than technical compliance with constitutional and statutory requirements. Regulation-making authorities must demonstrate that affected persons were properly informed, provided with a genuine opportunity to participate and that their views were meaningfully considered before a statutory instrument was finalized. Effective planning, inclusive consultation and proper documentation are therefore essential not only to uphold constitutional principles but also to minimize the risk of successful legal challenges against regulatory instruments.

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Question 2

LEGAL ALERT || Notice of intended redundancy in Kenya

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Date:21st April 2026
LEGAL ALERT || Notice of intended redundancy in Kenya
		Authored by Irene Kashindi,FCIArb, 
																														
Introduction
Our Firm Munyao Muthama & Kashindi I MMK ( Irene Kashindi, FCIArb and Faith Wangong&#8217;u) acted for one of the parties in the case Onyango v Care International Somalia & another [2025] KEELRC 3458 (KLR), a recent decision by the Employment and Labour Relations Court that revisits one of the most commonly misunderstood aspects of redundancy law in Kenya, namely what amounts to a proper notice of intended redundancy, when it should issue, and whether it can be replaced by payment in lieu of notice.
Background to the Dispute and Court Findings
In this case, the Court accepted that there was a genuine operational reason for the redundancy arising from a Somali Government directive requiring relocation of operations to Somalia, and thus found that the redundancy was substantively justified. However, the Court still found the process procedurally unfair because the employee and Labour Officer had not been given a proper notice of intended redundancy and to allow for meaningful consultations before the redundancy decision was made.
The Court emphasised that the notice under section 40(1)(a) and (b) of the Employment Act is not a final termination notice. Rather, it is a notice of intention to declare redundancy. It should therefore issue before the redundancy decision is finalised and before the employee exits employment. Its purpose is to create room for consultations, consideration of alternatives and possible mitigation measures before a final decision is taken. In this case, the employee was informed of the redundancy decision and exited employment on the same day, with notice pay being included as part of the terminal dues. There was no separate prior notice of intended redundancy for a period of less than one month as required by section 40 of the Employment Act and no real consultations were conducted before the employment relationship came to an end. It is this sequence of events that led the Court to conclude that, notwithstanding the payment of notice in lieu, the statutory requirement for a prior notice of intended redundancy had not been satisfied.
In reaching this conclusion, the Court cited a number of important authorities. In Barclays Bank of Kenya Ltd & another v. Gladys Muthoni & 20 others [2018] eKLR, the Court of Appeal recognised consultation as an important component of fair labour practice in redundancy situations. In Cargill Kenya Limited v Mwaka & 3 others [2021] KECA 115 (KLR) the Court of Appeal observed that the purpose of the notice is to give parties an opportunity to consider measures to avert or minimise termination and mitigate its effects. Similarly, in The German School Society v Helga Ohany, the Court stated that notice to the employee, union and Labour Officer opens up the door for a consultative process .
In practice, parties sometimes interpret decisions such as Cargill Kenya Ltd v Mwaka & 3 others (see above) and Africa Nazarene University v David Mutevu & 103 others [2017] KECA 381 (KLR) others differently on the requirements regarding notices under section 40 of the Employment Act. The more recent and predominant approach in Kenyan jurisprudence is, however, that the notice of intended redundancy of not less than a month serves a substantive consultative purpose and is not merely a technical requirement that can automatically be replaced by payment in lieu of notice. This is also why the wording of section 40 is contemplative. It refers to an intended redundancy and an intended date of termination, which suggests that the notice should issue before the redundancy decision is finalised so as to allow room for consultation, alternatives and possible mitigation measures.
This position is also consistent with international labour standards. Articles 13 and 14 of International Labour Organization Convention contemplating terminations for economic, technological, structural or similar reasons to provide workers representatives with relevant information in good time and to consult on measures to avert or minimise the terminations and their adverse consequences. Recommendation No. 166 further encourages employers to consider alternatives to termination, limit the number of dismissals and mitigate the effects of job losses. Although Kenya has not ratified Convention No. 158, Kenyan courts have increasingly referred to it as persuasive guidance in redundancy disputes because it reflects internationally accepted principles of fairness, consultation and mitigation. Comparable jurisdictions adopt a similar approach. In South Africa, section 189 of the Labour Relations Act requires employers to consult before any final retrenchment decision is taken, and the consultation must be genuine and aimed at reaching consensus.
In the United Kingdom, section 188(1A) of the Trade Union and Labour Relations (Consolidation) Act 1992 provides that consultation must begin in good time and, where 100 or more employees are affected, at least 45 days before the first dismissal takes effect, and in other cases at least 30 days before the first dismissal takes effect.
Key take aways & Conclusion
The predominant view in Kenya therefore remains that a proper notice of intended redundancy should issue before the redundancy decision is finalised, should allow a meaningful consultation period of not less than one month, and cannot ordinarily be paid off . While the final termination notice may be replaced by payment salary in lieu of notice in line with section 40(1)(f) as read with section 36 of the Employment Act as was held in the case of Veronica Mkiwa Mwalwala v Faiza Bhanji t/a Villa Kalista Enterprises [2020] KEELRC 1821 (KLR) , the notice of intended redundancy serves a separate and important purpose of opening the door to consultation before the redundancy decision is implemented. The case of Veronica Mkiwa Mwalwala v Faiza Bhanji t/a Villa Kalista Enterprises [2020] KEELRC 1821 (KLR) is digested as part of Volume 2 of Kashindis&#8217; Digest of Employment Cases.

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Question 3

Kenya’s ODPC Draft Guidance Note for Private Security: What You Need to Know

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Date: 7th April 2026
Kenya’s ODPC Draft Guidance Note for Private Security: What You Need to Know
Authored by Dr. Nelson Otieno, Stellah Nekesa & Bessy Gakii
																														
A. Background
Private security operations commonly involve protecting premises, assets, businesses, residences, and individuals. Private security service providers increasingly rely on technologies such as CCTV surveillance, biometric systems, and access control mechanisms. The reliance on surveillance and identification technologies can be used when conducting background checks, managing access to secure areas, and investigating security incidents. All these involve collection, recording, storage and use of personal data including sensitive personal data.
The Office of the Data Protection Commissioner (ODPC) has issued a Draft Guidance Note for Private Security in December 2025. The Guidance provides a sector-specific direction on how such data processing should be conducted in compliance with Kenya’s data protection framework.
The Draft Guidance Note applies to a very wide range of activities. It predominantly targets security-related services offered by the individuals and companies involved in activities including safeguarding a property or individuals and guarding safety and order; security consultants; bodyguards; private investigators; security advisors; and providers of locksmith services.Besides it applies to manufacturers and distributors of security equipment; employers; property owners and property management companies; and technology providers and system integrators.Although the guidance is currently in draft form, it has progressed past the consultation stage and is expected to provide important regulatory direction for the sector once formally adopted.
B. Summary of the Guidance 
The Guidance Note provides practical advice on how private security service providers and related actors should handle data in compliance with the Data Protection Act, 2019 when processing personal data while providing security services. It has two primary aims. One, it provides practical advice on how the service providers should go about their private security activities while also offering guarantee for the protection of interests of the individuals whose personal data is collected and used. Two, it guides how the actors should manage risks associated with collection of data, data sharing, lack of transparency, as well as cybersecurity concerns. The substantive guidance in the Draft Guidance Note complements the compliance standards in the existing governing framework for the private security industry which includes the Private Security Regulation Act, 2016 and the Private Security (General) Regulations, 2019.
The ODPC guidance therefore clarifies:

The application of data protection principles under the Data Protection Act, 2019 to private security operations.
The lawful bases for processing personal data in security contexts.
The obligations of private security service providers when deploying surveillance systems and biometric technologies.
Measures that should be taken to ensure that personal data collected through security systems is handled lawfully, fairly and transparently.

The guidance also seeks to ensure that security operations do not unnecessarily infringe on privacy rights, while allowing organisations to maintain legitimate security measures.
C. Who is Affected 
The Draft Guidance Note is relevant to a range of actors involved in private security operations and the deployment of security technologies. These include:

Private security service providers offering services such as surveillance and monitoring of premises; alarm response services; access control systems; event and VIP security; and cash-in-transit service.
Organisations and property owners that deploy private security systems or engage private security service providers to monitor their premises.
Technology providers and system integrators involved in installing or managing security technologies such as CCTV systems, biometric identification systems (including fingerprint or facial recognition technologies); and other surveillance and monitoring technologies.
Employers and organisations that use surveillance or biometric technologies for security or access control within workplaces or facilities.

However, the guide does not affect government agencies such as the military. Also, the Guidance does not apply to the use of private security for household application.
D. Practical Impact 
The Draft Guidance Note signals increased regulatory attention to the processing of personal data within the private security industry, particularly where surveillance and biometric technologies are involved.
The Note:

Clarifies the governance of security technologies such as CCTV surveillance and biometric identification systems in the security sector and ensuring they comply with the requirements of the Data Protection Act, 2019 and applicable regulations.
Clarifies the registration and data protection impact assessment obligation of the affected actors.
Reinforces that security objectives must be balanced with rights to privacy and data protection.
Clarifies the additional data protection considerations such as data protection by design and default mechanism in the private security industry in Kenya.

E. Required Compliance Actions and Obligations 
The Draft Guidance Note outlines several practical compliance considerations for organisations involved in private security operations.

Mandatory registration with the ODPC: Private security agencies providing CCTV technology, entities contracted to install or maintain such systems, as well as building or property management companies that deploy or manage CCTV systems are required to register with the ODPC as data controllers and/or data processors where they process personal data through these technologies. The registration obligation also extends to the building and property management companies. This registration is mandatory regardless of the entity’s size, annual turnover, or revenue.
Establishing a lawful basis for processing: Organizations must identify a lawful basis for collecting personal data and ensure that personal data collected through security operations is processed based on a valid lawful basis under the Data Protection Act 2019. The private security agencies can rely on the ‘legal obligation’ as a lawful basis of collection pursuant to section 48 of the Kenyan Private Security Regulation Act, 2016. Others possible lawful bases can be consent, legitimate interest, and public interests.
Applying data protection by design and by default: Besides the common technical and organizational measures, the ODPC Guidance Note advises private security firms that rely on manual processing of visitor’s records to adopt mechanisms for restricted access, limited use, auditing and disposal of the logbook.
Applying data protection principles: Private security providers should ensure that their operations adhere to the core data protection principles, including lawfulness, fairness and transparency, purpose limitation, data minimization, accuracy accountability, storage limitation, integrity, and confidentiality.
Performing a data protection impact assessment: Where technologies such as CCTV or biometric access systems (using fingerprint and facial technologies) are deployed, organizations should assess the impact on fundamental rights and freedoms and consider less intrusive means to achieve their legitimate purpose of the processing. The DPIA mechanism is aimed at ensuring that their use is necessary, proportionate, and appropriate for the intended security objective.
Ensuring transparency: Individuals should be clearly informed where surveillance systems are in use, including the purpose of monitoring and how the collected data will be used and retained. This can be done through a prominent notice at the entrance/gate of a building.
Facilitating data subject rights: Organizations should establish procedures that allow individuals to exercise their rights under the Data Protection Act 2019, including the right to be informed; right to access personal data collected through surveillance systems and held by private security companies; right to object; right not to be subjected to automated decision-making; erasure (right to be forgotten); rectification; and data portability. Notably, the Guidance Note clarifies that the standards of portability also require the private security agencies to enable porting of access logs to third parties such as lawyers.
Training and communication protocols/Channels: Private Security Service Providers should conduct regular training of staff, communicate to them the need to take ownership of their work and be accountable for their actions. This should be complemented by establishing clear lines of reporting and escalation for data protection issues.
Other mechanisms: Private security agencies should have in place proper data breach management mechanisms as well as contractual and due diligence mechanisms for engagement of a data processor.

F. Effective Dates and Next Steps

Current statusThe Guidance Note is currently in draft form, though it has already progressed beyond the consultation stage.
Next stepsOnce formally adopted by the ODPC, the guidance is expected to provide authoritative direction on how private security service providers and organizations using manual systems and deploying security technologies should comply with Kenya’s data protection framework.
Monitoring developmentsOrganisations operating in the private security sector should monitor developments relating to the final adoption of the guidance. In anticipation, they should begin reviewing their surveillance and security practices to ensure alignment with the proposed expectations.

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Question 4

Kenya’s Legal Framework on Workplace Mental Health: Duties, Rights, and Emerging Challenges

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Date: 28th April 2026
Kenya’s Legal Framework on Workplace Mental Health: Duties, Rights, and Emerging Challenges
		Authored by Irene Kashindi,FCIArb, 
																														
The World Day for Safety and Health at Work, observed annually on April 28, is a UN international day focused on promoting the prevention of occupational accidents, injuries, and diseases globally. It is principally organized by the International Labour Organization (ILO) as the specialized UN agency which promotes international labour rights. ILO’s theme for this year’s World Day for Safety and Health at Work is ‘Ensuring a healthy psychosocial workingenvironment’.
In commemoration of this day, we at Munyao Muthama and Kashindi Advocates reflect on the Kenyan legal landscape governing mental health in the workplace, highlighting the key rights and obligations of the various actors, as well as emerging challenges
Introduction
Once dismissed and clouded by stigma, mental health has now found its way into boardrooms and onto factories and shop floors, recognised not only as a wellness concern but increasingly as an ESG priority and a legal obligation. Kenya has made significant strides in this shift, yet the journey to fully embed mental health into workplace law, policy, and culture is still evolving. With this shift, mental health is now framed not simply as a personal well-being matter but as a question of organisational resilience, compliance, and productivity. The workplace has become a frontline for these challenges, raising critical legal and policy questions about duties, rights, and accountability.
Mental health matters beyond the individual
The World Health Organization defines mental health as “a state of mental well-being that enables people to cope with the stress of life, realize their abilities, learn well and work well, and contribute to their community.” It is not just the absence of illness but a foundation for productivity and human dignity. The World Economic Forum notes that only about a quarter of employees worldwide report being happy at work. Moreover, depression, anxiety, burnout, and related conditions are among the leading causes of employee absenteeism, including frequent sick days. Globally, depression and anxiety cost nearly US$1 trillion annually in lost productivity. In Kenya, mental health challenges cost the economy Ksh 62.2 billion in 2021, about 0.6 per cent of GDP. At the global level, mental health has also entered the Environmental, Social and Governance (ESG) agenda, with investors and regulators increasingly assessing how organisations safeguard employee wellbeing under the ‘social’ pillar. These trends show that mental health is as much an economic and governance issue as it is a personal one.
The constitutional and statutory framework 
Kenya’s Constitution guarantees the right to the highest attainable standard of health (Article 43), human dignity (Article 28), and fair labour practices (Article 41). Together, these provisions create a foundation for mental health rights at work. The Employment Act (2007) prohibits discrimination based on health status and provides safeguards during termination for incapacity, though it does not explicitly refer to mental health. The Occupational Safety and Health Act (2007) goes further. Section 6 requires employers to provide information, instruction, training, and supervision to protect safety and health, and Section 76 obliges them to protect employees from conditions likely to cause mental strain. The Mental Health Cap 248 further strengthens these rights by protecting dignity, prohibiting discrimination and stigma, guaranteeing confidentiality, and requiring parity in medical insurance cover for mental health.
Policies and guidelines 
Beyond statutes, the National Guidelines on Workplace Mental Wellness (2023) provide a three-part framework of promotion, prevention, and care. They direct employers to integrate safety and health management systems. Importantly, they also recognise employees as rights-holders entitled to safe workplaces, non-discrimination, reasonable accommodation, confidentiality, and due process. These Guidelines, while not law, create a benchmark for good practice and will likely influence judicial interpretation.
Judicial precedent 
Kenyan jurisprudence has filled some legislative gaps. In Gichuru v Package Insurance Brokers Ltd (2021), the Supreme Court held that dismissal based on an employee’s incapacity should not be an employer’s first response. Employers must consider reasonable accommodation, unless it causes undue hardship. In MMG (2023), the Supreme Court affirmed that while MMG’s severe mental illness impaired her ability to perform her duties, mental illness does not automatically amount to incapacity. The Court adopted an intermediate standard of proof, lower than ‘beyond reasonable doubt’ but higher than a ‘balance of probabilities’, making it a higher threshold than in ordinary dismissal cases. It stressed that incapacity must be established through qualified medical evidence, fair process, and that any limitation of rights should go only as far as necessary in the circumstances. In AWW (2025), the Employment Court awarded damages after finding that an employer unlawfully dismissed a worker for absconding duty without taking account of her mental health condition and without providing reasonable accommodation. In BIFU v BBK [2014] and SRR v JSC [2019], the courts upheld dismissals where employers had made reasonable accommodations through counselling, medical referrals, and rehabilitation support, but the employees failed to cooperate. Together, these cases illustrate the courts’ balanced approach: employers must act with fairness, care, sensitivity, and provide reasonable accommodation, while employees are expected to engage honestly and responsibly with the support offered.
The international framework 
The International Labour Organization (ILO) recognises a safe and healthy working environment as a Fundamental Principle and Right at Work. This elevates occupational safety and health, including mental health, into the category of universal entitlements. The ILO has identified psychosocial risks at work, including job demands, workload, organisational culture, career development, job insecurity, interpersonal relations, and the home–work interface (Psychosocial Risks and Mental Health at Work,2024). Its core instruments, the Occupational Safety and Health Convention, 1981 (No. 155), the Promotional Framework for Occupational Safety and Health Convention, 2006 (No. 187), and the Violence and Harassment Convention, 2019 (No. 190) (which is yet to be ratified in Kenya) collectively affirm that safeguarding both physical and psychological wellbeing is central to decent work.
Employer obligations and risks 
Employers are required to do more than provide medical insurance or react to crises. The law places proactive duties on them: conduct risk assessments that include psychosocial hazards, develop workplace policies, train managers, protect confidentiality, and provide reasonable accommodation. Failure exposes employers not only to litigation risk but also to regulatory sanctions under the Occupational Safety and Health Act. At the same time, employers face real challenges. Abuse of mental health claims in disciplinary processes, the rise of technostress from constant digital connectivity, and growing social risks such as gambling addiction test the boundaries of existing laws. These scenarios show that employers must balance compassion with accountability, while policymakers must provide clearer guidance on emerging risks.
Emerging challenges 
Technostress has become a significant concern, recognized by the ILO as an emerging workplace hazard. It arises from continual technological change and the expectation that employees remain constantly connected, respond instantly, and adapt rapidly to evolving systems. This demand to work faster and longer, coupled with the difficulty of mastering complex digital tools and the uncertainty of ever-updating AI systems, erodes work–life boundaries and fuels fatigue, anxiety, and burnout.
Gambling addiction is another emerging risk. The rise of mobile betting platforms has created a new form of workplace vulnerability, leaving many employees struggling with financial strain, distraction, and compulsive behaviour. This not only undermines productivity and stability at work but also blurs the line between personal conduct and workplace impact. Unlike traditional stressors, these “newer triggers” often remain hidden, and employers may not realize that depression, absenteeism, or declining performance are linked to the new stressors. These challenges expose gaps in current frameworks. Neither the Employment Act nor OSHA explicitly address them, yet they fall within the broader obligation under section 76 of OSHA to protect workers from conditions likely to cause mental strain. They also raise difficult questions of policy: how far should employers intervene, and what form should reasonable accommodation take in such cases?
A collective tripartite responsibility 
Mental health at work is a shared duty across all actors, consistent with the ILO’s tripartite approach that underscores social dialogue and partnership between employers, employees, and government. Employers carry the greatest burden, given their control over workplace conditions. The law places proactive duties on them: to conduct risk assessments that include psychosocial hazards, develop and implement workplace policies, provide reasonable accommodation, ensure confidentiality, and offer information, training, and supervision. Managers and supervisors, as part of this obligation, should match tasks with abilities, recognise those at risk, allow time to seek help, and organise work schedules that support rest. Leadership must approve and fund wellness initiatives, align policies with statutory obligations, and promote a culture of openness and respect. Employees also have responsibilities. The 2023 National Guidelines on Workplace Mental Wellness emphasise self-care, developing coping skills, building social support, and seeking care when needed. Workers are expected to engage honestly with workplace processes, use leave and accommodations responsibly, and cooperate with assessments and reintegration measures. The Government plays a central role in setting standards and enforcing compliance. Beyond inspection and enforcement, it must prioritise legal and policy reform to close gaps in current frameworks and ensure that national law keeps pace with global standards. Courts reinforce this responsibility by interpreting and applying the law in ways that balance fairness with operational realities.
Conclusion 
Kenya has made significant progress in developing a legal and policy framework for workplace mental health, anchored in the Constitution, statutes, guidelines, and international obligations. Yet gaps remain in clarity, implementation, and responsiveness to new risks. Employers must meet their statutory duties, employees must exercise their rights responsibly, and the government must refine the framework to address emerging challenges. The future of workplace mental health in Kenya will be determined by how effectively these duties, rights, and challenges are balanced in practice.

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Question 5

Regulatory Alert | Kenya establishes the National Cybersecurity Agency

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Date: 15th July 2026
Regulatory Alert | Kenya establishes the National Cybersecurity Agency
Authored by Dr. Nelson Otieno, Stellah Nekesa & Rehema Rukaria
																														
Introduction
On 6th May 2026, President William Ruto signed the National Cybersecurity Agency Order, 2026, which was published in the Kenya Gazette as Legal Notice No. 89 on 15th May 2026. Made under the State Corporations Act (Cap. 446), the Order establishes the National Cybersecurity Agency as a state corporation responsible for coordinating national cybersecurity matters.
The Order designates the Agency as the autonomous regulatory and technical body responsible for the coordination of national cybersecurity matters, operating under the direction of the Cabinet Secretary responsible for internal security. This marks a significant institutional development in Kenya’s cybersecurity governance framework.
While the Communications Authority of Kenya, through the Kenya National Computer Incident ResponseTeam/Coordination Centre (National KE-CIRT/CC), has historically played the lead role in national cyber incident response, and the Computer Misuse and Cybercrimes Act, 2018 continues to govern cybercrime offences and enforcement, the Order establishes a dedicated state corporation with a broader mandate for national cybersecurity coordination. It does not amend or replace the Computer Misuse and Cybercrimes Act, 2018.
Governance of the Agency
The Agency is governed by a Board chaired by a non-executive Chairperson appointed by the President. Its membership comprises senior representatives from key government institutions, including the Principal Secretaries responsible for Internal Security, the National Treasury, and ICT, the Attorney-General, the Chief of the Kenya Defence Forces, the Inspector-General of the National Police Service, the Director-General of the National Intelligence Service, Prosecutions, together with one representative each from academia and the private sector appointed by the Cabinet Secretary. The Director-General serves as an ex officio member of the Board without voting rights and is appointed by the Board through a competitive recruitment process, subject to the approval of the Cabinet Secretary.
Functions and Powers of the Agency
The Agency&#8217;s mandate is extensive. It is responsible for:

Formulating and overseeing the implementation of national cybersecurity strategies across the public and private sectors;
Auditing and certifying the cybersecurity resilience of designated critical information infrastructure;
Managing the National Cybersecurity Operations Center and supporting Sectoral Cybersecurity Operations Centers;
Conducting technical assessments and vulnerability exposure of government and private sector digital networks;
Deploying advanced analytics and forensic tools;
Issuing technical advisories;
Developing professional certification programmes and technical training;
Establishing a Cybersecurity Center of Excellence;
Serving as the lead technical liaison between government and industry;
Formulating and enforcing technical administrative guidelines;
Participating in international technical cooperation; and
Performing such other technical duties as may be assigned by the Board.

The Board is responsible for the overall policy, control and supervision of the Agency, including advising the Cabinet Secretary, approving budgets, mobilizing resources, formulating policies, recruiting staff and exercising powers to levy fees for services, enter into partnerships, administer the Agency&#8217;s assets and funds, and undertake other acts necessary for the discharge of its functions.
Key Takeaways
The establishment of the National Cybersecurity Agency signals a shift towards a more centralised institutional framework for cybersecurity governance in Kenya.
Organisations, particularly those operating designated critical information infrastructure, should monitor the operationalisation of the Agency, including the issuance of implementing frameworks, technical standards and administrative guidelines, and assess their cybersecurity governance frameworks to ensure continued compliance with evolving regulatory requirements.

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Question 6

High on the Clock: An Exposition of Case Law on Intoxication at the Workplace

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Date: 6th July 2026
High on the Clock: An Exposition of Case Law on Intoxication at the Workplace
		Authored by Mellap Wataka Odada & Natalie Sirawa
																														
Section 44 (4) (b) of the Employment Act allows an employer to exercise the harshest of employment sanc­tions by summarily dismissing an em­ployee from employment who be­comes unwilling or incapable of working or performing their duties by reason of intoxication. There is no legal definition of the term ‘intoxica­tion’ and its ordinary meaning is a transient state of diminished mental or physical control as a result of con­sumption of alcohol, drugs or other substances. Naturally, this is not an ideal state for anyone at the work­place. This is why summary dismissal for intoxication at the workplace is allowed by the law.
Nevertheless, it is not as simple as perceiving intoxica­tion for instance by sight or smell. That an employee has had a tipple with their lunch or a covert Irish 4.00 o’clock coffee is not enough to meet the legal threshold for sum­mary dismissal for intoxica­tion. A reading of Section 44
(4) (b) of the Employment Act shows that for intoxication to pass the muster of validity, it should have the effect of causing the employee to be unwilling and incapable of performing their duties. Whether an employer is justi­fied in dismissed an employ­ee for intoxication at the workplace has been consid­ered by the Employment and Labour Relations Court (ELRC) in various cases de­tailed below.
In the widely cited decision of the ELRC in Maugo v Riley Falcon Security Services [2016]eKLR (Onyango J) the court clarified that an em­ployer has the burden of proving intoxication as well as unwillingness and incapability to work. The court accepted that this may not always be through imperial scientific ev­idence such as a blood test, however, there should be some evidence of intoxica­tion and unwillingness/inca­pability through other means. The decision suggests that the employer may engage other methods such as requir­ing an employee to walk in a straight line; reading or writ­ing a paragraph; or perform any other task that a sober person would be able to do in order to establish intoxi­cation. As this had not been done, the court found that the employer had not proved that it had validly dismissed the employee for intoxication and an award of compensation for unfair ter­mination of 6 months’ salary was made in favour of the employee.
Apart from blood and breathalyser tests that scien­tifically prove intoxication, how then does an employer prove intoxication that has led to unwillingness or inca­pability to work?
Many employers will deal with this through internal pol­icies and procedures de­pending on the specific re­quirements of the work un­dertaken by the employees. Understandably those in­volved in driving or operation of heavy machinery or per­haps those in healthcare and in other customer facing roles will have different poli­cies relating to workplace in­toxication.In Ajuoga v Kenya Revenue Authority [2024] eKLR (BaariJ) the claimant sued the em­ployer for unfair termination on the basis that intoxication cited as the reason for dis­missal had not been proved by the employer.
The claimant argued that em­ployer had not shown that the employee was both intox­icated and unwilling/incapa­ble of performing their duties as required by the Employ­ment Act. However, the em­ployer relied on a picture of the employee taken on the material day showing the em­ployee sprawled on the floor at the workplace seemingly unresponsive. The ELRC ac­cepted this as proof of intoxi­cation and incapability to work and consequently dis­missed the employee’s claim.
Similarly in Manegene vs Mamba Group of Hotels Ltd [2025]eKLR (Abuodha J) in­toxication as well as unwill­ingness or incapability to work were accepted as having been established by the em­ployer who tendered evidence showing that an employee re­ported to work while intoxicat­ed and subsequently injured himself by leaping out of a window of the employer’s sto­ried building in an attempt to commit suicide which was also reported to the police. In this the case the employee was awarded only 1 month’s salary as compensation for the dis­missal because the employer did not follow a fair process de­spite having established valid reasons.
Another serious case of intoxi­cation was demonstrated in Kenya Plantation & Agricultur­al Workers Union v Ekatera Tea Kenya [2025]eKLR (RikaJ) where the Union filed suit on behalf of one of their members who had been sum­marily dismissed on account of intoxication and gross mis­conduct that occurred on housing premises provided for employees by the employ­er. On Christmas Day the em­ployees had gone out for merry making which included consumption of alcohol. One of them who was drunk stabbed the other who was also drunk in the eye. The em­ployer dismissed the employ­ee who stabbed his colleague and the court accepted the position that the dismissal was fair in the circumstances.
Therefore, policies on regula­tion of intoxication at the workplace are an important factor for employers to con­sider as part of establishing this ground as a basis for dis­missal. In Kenya Aviation Workers Union v Kenya Air­ways Limited [2022] eKLR(Rika J) the employer’s policy required an employee to be subjected to alcohol level testing where their behaviour suggested intoxication. In this case the employee ap­peared to have been stagger­ing while descending the stairs of an aircraft, but they refused to be subjected to alcohol testing. The court held that such refusal amounted to insubordination and formed a basis for sum­mary dismissal of the employ­ee in any event.
While most cases seem to suggest that there should be a be­havioural component to intoxication in order to demonstrate un­willingness and incapability to work a recent decision of the ELRC took a slightly different position. In Mwashimba v Aircraft Leasing Services Limited [2026]eKLR (Dr. Gakeri J), the ELRC held that a pilot was justifiably dismissed from employment for intoxication where the employer’s policy provided for a blood alcohol level of 0.00 and the pilot’s blood alcohol level was found to be above that although he was not visibly inebriated. The court held that due to the importance of safety in the aviation industry, the employer was justified in enforcing the strict standard and dismissing the employ­ee whose blood alcohol level contravened the policy on this.
Consideration should therefore be given to the wording of work­place policies on intoxication and their implementation by employ­ers according to their unique environments and requirements of their operations.
For more information on this please contact our team on nairobi@mmkadvocates.co.ke

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Question 7

High Court Upholds Administration of Glee Hotel Limited and Clarifies the Powers and Responsibilities of an Administrator

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Date:13th August 2026
High Court Upholds Administration of Glee Hotel Limited and Clarifies the Powers and Responsibilities of an Administrator
Authored by James Tugee, FCIArb
																														
Key Takeaways
The High Court has upheld the appointment of Kamal Anantroy Bhatt of Anant Bhatt LLP as administrator of Glee Hotel Limited (the company) and affirmed the administrator’s authority to assume control of the company’s management and affairs following his appointment.
In a ruling delivered on 12 August 2026 in HCCOMMIP/E045/2026 Equity Bank Kenya Limited v Glee Hotel Limited, the court granted protection orders restraining the company’s directors and their agents from disrupting the company’s operations, interfering with the administrator’s functions, or otherwise interfering with the company’s business.
Munyao Muthama & Kashindi Advocates (Paul Munyao, James Tugee and John Kithome) represented the administrator in the proceedings.
The decision provides significant guidance on the operation of the Insolvency Act, particularly regarding the appointment and assumption of office by administrators, the hierarchy of the objectives of administration, the powers of administrators, the position of directors during administration, and the remedies available to secured creditors.
BackgroundEquity Bank (Kenya) Limited, a secured creditor of the company, appointed Mr. Bhatt as administrator on 6th July 2026 following the company’s default in repaying credit facilities advanced by the Bank. The facilities were secured, among other securities, by debentures over the company’s assets. Following his appointment, the administrator encountered resistance and interference from the company’s directors and their agents as he sought to take control of the company and its business, Glee Nairobi. He therefore filed an application on 6th July 2026 seeking orders restraining the directors from interfering with the company’s operations and business. The company subsequently filed an application dated 7th July 2026 seeking, among other orders, termination or suspension of the administrator’s appointment or permission for its board of directors to continue managing the company’s day-to-day operations jointly with, or under the supervision of, the administrator. When the matter came before the court for directions on 9th July 2026, the court declined to grant the interim orders sought by the company. The company thereafter filed an application dated 13th July 2026, seeking review of the orders made on 9th July 2026.
Issues Before the CourtThe court identified two principal issues arising from the three applications:
1. Whether sufficient grounds had been established for removal of the administrator from office; and
2. Whether the administrator was entitled to the protection orders sought.
Court’s DeterminationThe court allowed the administra­tor’s application and dismissed the company’s two applications. It held that Mr. Bhatt had been validly ap­pointed and was entitled to dis­charge his statutory functions with­out interference from the company, its directors or their agents.
The court found that the administra­tor had demonstrated that, since his appointment, he had taken various steps and made genuine progress towards achieving the statutory ob­jective of rescuing the company.
The court also observed that the Bank was not the company’s only substantial creditor.Other substantial creditors had actively pursued claims against the company and filed proof of debt. The existence of these liabilities demonstrated that the company’s financial distress was not caused by the administration process. Rather, the company was already indebted to multiple creditors, and the ad­ministration process was intended to bring those competing claims under order and coordination.
Conduct of the DirectorsThe court was particularly con­cerned by various actions undertak­en by the company’s directors fol­lowing the administrator’s appoint­ment. These included:• transferring funds from the com­pany’s bank account to an entity that had not submitted proof of debt, without the administrator’s consent;• denying the administrator access to the company’s bank accounts, records and IT systems; and• failing to provide the administra­tor with the company’s statement of affairs despite a request made on 10 July 2026.
The court ultimately held that once an administrator is appointed, management authority of the company resides in the administrator. A company in administration or any of its officers cannot exercise a management function without the administrator’s consent.
The court consequently granted the administrator the protection orders sought, restraining the directors and their agents from disrupting the company’s operations, interfering with the administrator’s functions, or otherwise interfering with the company’s business.
Key Legal Principles Emerging from the Decision
1. Administration has a hierarchy of objectives
The court affirmed the statutory hierarchy of the objectives of ad­ministration:a. Primary objective: rescue the company as a going concern.
b. Secondary objective: where rescue as a going concern is not reasonably achievable, secure a better outcome for the compa­ny’s creditors as a whole than would be likely if the company were wound up without first being placed under administra­tion.
c. Residual objective: where nei­ther of the foregoing objectives is reasonably attainable, realise the company’s property for the benefit of secured or preferential creditors.
The hierarchy is important in deter­mining the administrator’s priorities and the appropriate course of action during an administration.
2. An administrator may be appointed through three routesThe court recognized three statuto­ry routes through which an adminis­trator may be appointed:a. by an order of the court;b. by the company itself or its direc­tors; orc. by the holder of a qualifying floating charge, acting without recourse to the court.
3. Parties are bound by their contractsWhere a qualifying floating charge is executed by the bank and the borrower conferring upon the bank the power to appoint an administra­tor, the court cannot rewrite the bargain struck between the parties. The duty of the court is rather to give effect to the terms of the par­ties’ agreement.
4. Documents filed upon appointment by a holder of a qualifying floating chargeWhere an administrator is appoint­ed by a holder of a qualifying float­ing charge, the documents lodged in court are intended to provide suf­ficient material to enable the court and interested parties to establish that:a. the appointor holds a qualifying floating charge over the compa­ny’s property;b. the charge was enforceable at the date of appointment; andc. the appointment complied with the requirements of the Insolven­cy Act.
The court clarified that these docu­ments are not intended to consti­tute a fully particularised pleading of the secured creditor’s cause of action against the company.
5. No prior notice to the debtor is requiredThe court held that the Insolvency Act does not require prior notification of the debtor company before a holder of a qualifying floating charge ap­points an administrator. Notice is required only to be served upon a holder of a prior qualifying floating charge, where one exists.
6. Secured creditors may choose their preferred remedyA secured creditor is entitled to select, from the remedies available in law, the mode of recovery it considers most appropriate in the circumstances. The creditor is not restricted to one remedy or required to pursue reme­dies in a prescribed sequential order.
7. Removal of an administrator requires proof of the alleged groundsAlthough the court has power to remove an administrator where circum­stances exist that make it inappropriate for the administrator to continue in office, the burden rests on the applicant seeking removal to prove the allegations relied upon in support of the application.
8. Directors cannot exercise management functions without the administrator’s consentA company in administration, or any of its officers, may not exercise a management function without the consent of the administrator. The court further noted that undertaking such a function without the administrator’s consent constitutes an offence. This principle is particularly significant for directors who may otherwise assume that their ordinary management powers continue notwithstanding the commencement of administration.
9. Administrators have broad management powersAn administrator is empowered to take any action that contributes, or is likely to contribute, to the effective and efficient management of the affairs, busi­ness and property of the company.
10. Directors must provide a statement of affairsUpon request, the directors of a company in administration are required to fur­nish the administrator with the company’s statement of affairs within 12 days of receiving the request. Failure to provide the statement without reasonable excuse constitutes a punishable offence.
Significance of the decision for StakeholdersThe decision has practical implications across the banking, lending and insol­vency sectors.a. Companies, directors and other officers: Companies taking credit facili­ties and providing security, together with their directors and officers, should appreciate the consequences of administration and the extent to which management powers are displaced following appointment of an administra­tor. Once administration commences, directors and other officers must un­derstand the limits placed on their management functions and cooperate with the administrator, including by providing the statement of affairs and access to the company’s records, systems, accounts and other relevant infor­mation.
b. Banks and other lenders: Secured creditors have important flexibility in selecting and enforcing the remedies available to them following borrower default, including appointment of an administrator where the statutory requirements are met.
The decision also provides guidance on the process and evidential require­ments for appointment of administrators by holders of qualifying floating charges.c. Advocates: Counsel involved in lending and insolvency transactions should take account of the decision when drafting security instruments and advising secured creditors, borrowers and directors on enforcement op­tions.
d. Insolvency practitioners: The decision reinforces the authority of duly ap­pointed administrators to assume management of a company and provides guidance on the exercise of their statutory functions and the protection available where directors or other persons interfere with the administration.
Ultimately, the decision offers useful guidance to companies, secured credi­tors, insolvency practitioners and their advocates in navigating administration proceedings and managing the relationship between the company, its direc­tors, creditors and the administrator.
Conclusion
The decision reinforces the central principle that an administrator, once validly appointed, assumes the statutory management role contemplated under the Insolvency Act. Directors cannot continue exercising management functions independently of the administrator, and interference with the administrator’s statutory mandate may attract both judicial protection of the administrator and statutory consequences. More broadly, the decision provides useful guidance on how administrators are appointed, the objectives they must pursue, the evidential burden for chal­lenging their appointment, the remedies available to secured creditors, and the obligations of directors and officers during administration.

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Question 8

Data Governance: Trends, Developments and Updates in Kenya and Globally

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Date: 9th March 2026
Data Governance: Trends, Developments and Updates in Kenya and Globally
Authored by Dr. Nelson Otieno, Stellah Nekesa & Bessy Gakii
																														
A. Introduction 
2025 was a year of data governance legal reform, presenting a mixed regulatory landscape that is both fragmented and consolidated across multiple jurisdictions. This alert summarizes regional perspectives on this trend. It concludes with our expert reflections on the trends and projections for what 2026 portends for the data governance landscape.
B. United States of America
The US is a critical jurisdiction from the perspective of data governance, as it is home to the world’s most innovative big technology firms.
In 2025, the US saw a trend towards increasing sophistication in state-level governance. All 50 States introduced some form of AI legislation, while the number of States with comprehensive consumer data privacy laws rose to 20.Some States adopted new laws. Others, such as Virginia, Oregon, Connecticut, Colorado and Kentucky, refined and updated their existing data privacy frameworks.
Most new laws or law-reform activities focused on changes to revenue thresholds (Nebraska), entry-level exemptions (New Jersey and Delaware), and the protection of sensitive personal data (Maryland).
At the federal level, President Trump issued executive orders to establish a national AI policy framework. Notably, the executive order seeks to focus on the federal level standard of AI regulation. At both the state and federal levels, there is a surge in enforcement action.
An example is the Department of Justice, which has filed multiple actions seeking to compel States to disclose voter registration data.
C. Latin America

Latin America continued to experience fragmentation in the data governance landscape. There have been major efforts by Latin American States to modernize their data protection frameworks, aiming to align them with Global best practices while adapting to the evolved realities of the people from the region.
Some Latin American States introduced new data privacy frameworks. Examples are Chile and Peru. These frameworks are largely modelled around the GDPR style while still providing a regional perspective.
The Brazilian Lei Geral de Proteção de Dados (LGPD) remained the key reference legislation in the region. This reference point also underwent refinements that indicated its continued maturity. The refinements continued alongside targeted enforcement actions. For example, Brazil’s Agência Nacional de Proteção de Dados (National Data Protection Authority) (ANPD) issued more than $12 million in fines in Q1 2025, targeting misuse of biometric data and poor consent practices.

D. Europe
Europe remains a key reference point, as it is a forerunner in developing and adopting regulatory instruments.In 2025, the EU completed the open data maturity assessment, which evaluated the maturity of EU countries in open data, as envisaged by the Open Data Directive of 2024.
Another key highlight of 2025 was the digital omnibus package. This package (omnibus I and II) seeks to amend data governance instruments, including the EU AI Act. The package is at an early stage in the legislative process. As of early 2026, the omnibus I has received a provisional agreement.
The proposals in the package aim to:

Restrict the definition of personal data to information which can reasonably be expected to be used by the controller or a third party. This proposal aims to consolidate the findings from the EU General Court judgment in SRB v EDPS (T-557/20).
Clarify that organizations can rely on legitimate interests to process personal data for the deployment and operation of an AI system.
Create an exemption from the prohibition of processing sensitive personal data in case the dataset contains residual sensitive personal data.
Update cookies rules by introducing universal settings-based preference mechanisms that allow users to express consent or opt out consistently across websites and applications.
Adopt an EU-wide breach template and notification platform as a single entry point/portal for personal data breach reporting
Extend the deadline for a data breach notification from 72 to 96 hours.
Harmonize the data protection impact assessment guidance and template.

E. Asia
India remained the key reference jurisdiction in Asia. Its population is key to the data markets and regulation. India’s scale of recent activity makes it a significant regional benchmark.The Digital Personal Data Protection (DPDP) Act 2023 took a major step in 2025 with the finalisation and enforcement of accompanying rules that require companies like Meta, Google, and OpenAI to limit personal data collection to what is strictly necessary, provide clear opt-out options, and comply with breach notification requirements. Beyond India, several Asian jurisdictions, including Singapore, Japan, and South Korea, continued to refine their data governance laws.
F. Africa (Kenya in Focus) Across Africa, adoption of data protection laws and ICT regulatory reforms gained traction in 2025. As of 2025, 39 out of 55 African nations had enacted comprehensive data protection laws, with 34 establishing regulatory authorities. Kenya emerged as a jurisdiction with notable progress. 2025 presented Kenya as a jurisdiction transitioning from a permissive, informal data culture to a rights-centred regulatory regime. Its notable data governance trends were:

Adoption of the Kenya National AI Strategy 2025-2030
Adoption of the ODPC’sStrategic Framework and Policy Initiatives.
Progress in the EU Adequacy decision.
Regulatory clarifications through new Data Sharing Code and Data Protection Guidelines for children’s data, SMEs, historical and statistical data, and the public sector.
Jurisprudential developments and clarifications indicating expansive protection of personal data and growing role of compensation as a remedy for violation of standards.

G. Expert Reflections 
Stellah Nekesa observes that:2025 signals a decisive turning point in data governance. Regulators across mature and emerging markets are deliberately moving beyond debating principles to enforce accountability and pursue proactive harmonization. From the US to Brazil and India’s operationalizing of consent, DPIAs, and AI safeguards, to Kenya’s priority on data protection by design, governance, and due diligence frameworks, data is now treated as a regulated asset with real financial and legal consequences. Organizations should look to a more harmonised framework and coordinated enforcement actions across the globe.
H. Expert Projections 
Dr. Nelson Otieno observes that:2026 will continue to be a year of recalibration of data governance rulebook through refinements and amendments to the existing data governance instruments. We will also see heightened enforcement action around targeted areas of data governance compliance set by regulators. We are also likely to see heightened focus on harmonizing regulations, templates, and enforcement efforts among regulators at the state, sub-regional, and regional levels, with possible trickle-down or horizontal influence of such changes on other jurisdictions across the world.

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Question 9

Copyright Protection of AI-Generated Works in Kenya

Accepted Answer

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Date: 18th August 2026
Copyright Protection of AI-Generated Works in Kenya
Authored by Dr. Nelson Otieno, Stellah Nekesa & Rehema Rukaria
																														
A. Copyright protection of AI-generated works: What are the issues
Copyright law has traditionally extended automatic protection to original works that reflect human intellectual effort and are affixed in a material form.
Advances in technology, particularly artificial intelligence, are increasingly shaping Kenya’s creative economy. The use of AI in producing literary, artistic, and commercial content is expected to grow significantly, giving rise to three distinct scenarios, namely:

Fully AI-generated works: Where the output is created entirely by the machine without human input.
Hybrid works: Where AI-generated content contains distinguishable human-made elements.
AI-assisted works: Where a human author creates the work with the aid of AI as a tool.

In the three scenarios, AI tools are creating or are used to create literary, artistic, sound, audio-visual, and other creative works. Under section 22 of Kenya’s Copyright Act, 2001, such works would ordinarily fall under works eligible for copyright and would traditionally qualify as protected works under the system of protection. The process of machine learning, data processing, and automated decision-making that produce these outputs, and the very nature of the outputs, challenge the copyright protection ecosystem in the following main ways:

They put pressure on notions of human authorship, originality, ownership, and expression in material form.
They put pressure on the economic and moral rationales for copyright protection, leading to legal grey areas on whether the copyright laws stimulate or impede technological
While advances in technology promise to stimulate economic development, they also carry the risk of accelerating and expanding the transnational reach of copyright infringements, thereby creating significant challenges for enforcement.

From a regulatory standpoint, these impacts raise three important questions about the scope of copyright protection. Milczarek (2024) has distilled them into the following: Can AI creativity be treated as a ‘work’ within the meaning of copyright law? If the creativity generated by AI qualifies as a work of authorship, to whom do the rights to this work belong? Should the copyright protection system evolve to extend protection to AI creations as well?
B. Copyright protection of AI-generated works: What are the issues in Kenya? 
Kenya’s Copyright Act, 2001 recognizes copyright in computer programs as a means of expressing protected works, a mechanism for copying works, and a form of literary work eligible for copyright protection.However, the Kenya‘s Copyright Act, 2001 does not expressly address the copyrightability of AI-generated, machine-generated, or computer-generated works. Consequently, questions relating to the ownership and protection of AI-assisted works continue to be determined by reference to the existing originality requirements under the Copyright Act, 2001 as well as emerging jurisprudence.
C. Jurisprudence in Aryeh Movement Limited v Akoth & Another

Scope of the disputeAryeh Movement Limited v Akoth & Another was an appeal case filed at the Kenyan Copyright Tribunal (the Tribunal). The appeal challenged a decision of the Kenya Copyright Board (KECOBO) concerning registration of certain literary works. The principal dispute concerned authorship and ownership of the registered works, and the Copyright Tribunal observed that parts of the works involved AI-generated images that had been curated and adapted by one of the parties. This prompted the Tribunal to consider a subsidiary issue: whether AI-generated content is eligible for copyright protection under Kenyan law, and the extent to which human involvement affects copyright eligibility.
What the Tribunal decidedThe Tribunal observed that the Copyright Act does not specifically provide for AI-generated works. Accordingly, the applicable legal standard remains the originality test under Section 22(3) of the Act. This section requires that sufficient effort must have been expended in creating a work to give it an original character and the work must have been reduced into material form. The Tribunal declined to determine whether the disputed literary works were themselves copyrightable, noting that the parties had neither produced the actual works nor adduced sufficient evidence to establish the extent of AI involvement or human creative contribution.

Nevertheless, the Tribunal examined comparative judicial approaches to the copyrightability of AI-generated works, considering developments in three jurisdictions:

The United States’ human-au­thorship requirement, as applied in Thaler v Perlmutter;
The United Kingdom’s recogni­tion of computer-generated works under Sections 9(3) and 178 of the Copyright, Designs and Patents Act 1988; and
The European Union’s ‘author’s own intellectual creation’ stan­dard articulated in Infopaq Inter­national A/S v Danske Dagblades Forening.

Consequently, the Tribunal clarified that AI-assisted works are not auto­matically excluded from copyright protection. The Tribunal further ruled that the eligibility will depend on the degree of human authorship and creative control exercised in producing the final work, as required under Section 22(3)(a) of the Kenya‘s Copyright Act, 2001.

Implications for copyright protection in Kenya in the era of AI

The Tribunal’s decision does not establish a blanket rule excluding AI-generated or AI-assisted works from copyright protection. Instead, it clarifies that eligibility will depend on whether sufficient human inter­vention or creative effort exists to satisfy the originality requirements under the Copyright Act. Purely machine generated works, without meaningful human input, are gener­ally not protected. This reinforces the anthropocentric approach in Kenyan law, where human author­ship remains central to determining copyrightability. While the Tribunal’s inability to de­termine the copyrightability of the disputed literary works was argu­ably a missed opportunity, the case nonetheless underscores the impor­tance of human authorship. Copy­right protection requires demon­strable human effort that imparts originality to the work.
The Tribunal’s reasoning also offers practical guidance on evidentiary considerations in future disputes involving AI-assisted works. When AI is deployed as a creative tool, au­thors and claimants must be pre­pared to demonstrate the extent of human creative contribution to the final output.
The reliance on comparative juris­prudence highlights that human involvement in directing, selecting, arranging, editing, or otherwise shaping AI-generated content will be a decisive factor in assessing copyrightability.

Law reform and future of protection of AI-generated works

From a legal reform perspective, the Kenyan Draft Copyright and Related Rights Bill, 2026 proposes signifi­cant changes to copyright adminis­tration and enforcement but does not expressly address the copy­rightability of AI-generated works.
Consequently, questions relating to AI-assisted content will likely contin­ue to be resolved by reference to the originality requirements under the Copyright Act, 2001 and the principles articulated by the Tribunal inAryeh case.
In parallel, the Artificial Intelligence Bill, 2026 introduces obligations relat­ing to transparency, accountability, and the labelling of AI-generated con­tent. While these provisions do not directly determine copyright owner­ship, they are expected to enhance the traceability of AI use in content creation. This may assist parties in demonstrating the extent of human involvement in AI-assisted works or in establishing AI’s role in copyright infringement, thereby providing greater certainty in future disputes. Until Kenya enacts legislation specifically addressing AI-generated works, the interpretation of the originality test under Section 22(3) of the Copy­right Act, 2001 in the Aryeh case will continue to offer a useful guide.

Conclusion and Recommendation

The decision of the Copyright Tribunal in the Aryeh case is Kenya’s first substantive judicial engagement with the question of copyright protec­tion in the age of AI. Its grounding in comparative jurisprudence and em­phasis on the centrality of human authorship under Section 22(3) of the Copyright Act, 2001, lay an important foundation for the evolution of Kenyan copyright law. As AI continues to reshape the creative economy, this decision signals that the law will adapt by focusing on demonstrable human input, ensuring that technological innovation is balanced with the enduring copyright protection principle of human originality.
Going forward;

Publishers, media houses, advertising agencies, technology companies, and professional service firms that deploy AI should adopt internal policies gov­erning its use and put in place mechanism that can enable it to track and-demonstrate the extent of human creative input in AI-assisted works.
Publishers, media houses, advertising agencies, technology companies, and professional service firms that deploy AI should maintain contractual safe­guards. Such measures will strengthen future claims to copyright protection and reduce uncertainty in case ownership disputes arise.
Creators and businesses that routinely deploy AI should maintain clear records of the human input involved in producing AI-assisted works. Such documentation will be critical in establishing copyright ownership should disputes arise.

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Question 10

Applying the doctrine of constitutional avoidance in employment claims. Why ordinary employment disputes should not be elevated to constitutional claims.

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Date: 3rd February 2026
Applying the doctrine of constitutional avoidance in employment
claims. Why ordinary employment disputes should not be elevated
to constitutional claims.
		Authored by Irene Kashindi,FCIArb and Mellap Wataka
																														
Introduction
In Kuria v Aga Khan University (ELRC Nairobi, Cause No. E361 of 2022, Judgment delivered on 30 January 2026), the Employment and Labour Relations Court considered a claim framed as constructive dismissal to­gether with alleged violations of constitutional rights.We had the opportunity to defend Aga Khan University in this matter. The matter was conducted by Irene Kashindi, FCIArb and Mellap Wataka Odada.
The Court treated the matter as an ordinary employment dispute and, on a preponderance of evidence, found that constructive dismissal had not been proved. The claimant declined a transfer he regarded as a promotion, sought to dictate the terms of that transfer, and purported to resign in the midst of disci­plinary proceedings. The Court held that an employee does not have the right to dictate managerial decisions and noted that the claimant never took up the assignment to demonstrate that it en­tailed additional responsibili­ties as alleged.
Crucially, the Court was not satisfied that any constitu­tional rights had been violat­ed so as to warrant elevating what was, on the face of it, a simple employment dispute into a constitutional question.
The Court reiterated that where complaints are ade­quately catered for by the employment contract and the Employment Act, constitu­tional remedies should not be entertained, consistent with the doctrine of constitutional avoidance. The court upheld the termination as having been grounded on valid rea­sons of insubordination and absconding duty, and as having followed a fair proce­dure.
Read the full judgement here:https://bit.ly/4xxPSBu
For more information on this please contact our team on nairobi@mmkadvocates.co.ke

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Question 11

Board Training and Structured Induction as Pillars of Effective Corporate Governance

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Date: 27th January 2026
Board Training and Structured Induction as Pillars of Effective Corporate Governance
Authored by Dr. Seth Wekesa & Annette Guto
																														
Introduction
In today’s complex and rapidly evolving business environment, effective corporate governance is a cornerstone of organisational success. Boards of directors are tasked with overseeing strategy, managing risks, ensuring accountability, and safeguarding stakeholder interests. To meet these responsibilities, it is imperative that board members possess the necessary knowledge, skills, and understanding of governance principles. This is where structured board training and induction programs play a pivotal role.
Board training and structured induction are indispensable pillars of effective corporate governance. They not only prepare directors to fulfil their legal and ethical obligations but also position organisations for long-term success by fostering informed decision-making, strategic clarity, and a commitment to governance excellence. As the demands on board continue to grow, investing in these programs is not just the best practice; it is a strategic imperative.
Drawing on our experience in conducting governance audits, the following best practices are recommended to strengthen board effectiveness and promote sound corporate governance.
Best Practices in Board Training and Induction
1.Formal Board Induction Policy or Manual
Develop a standardised Board induction policy or manual to ensure consistent onboarding for new directors. This policy serves as a framework to equip all directors with a systematic understanding of their roles, governance standards, and fiduciary responsibilities, fostering consistency and clarity from the outset.
2.Annual Training Calendar and Budget
Establish an annual training calendar that outlines planned Board development activities, along with a dedicated budget. This approach ensures structured, forward-looking training that effectively prioritises resources, enables planning, and fosters accountability, thereby enhancing Board effectiveness.
3.Comprehensive Board Induction Pack
Provide new Board members with an induction pack containing key documents, including governing laws, Board and Committee Charters, audited financial statements and annual reports for the last three years, the strategic plan, and relevant policies. This consolidated information supports rapid understanding of the organisation’s operations, governance framework, and strategic priorities.
4.Standardised Induction Programme
Conduct a comprehensive, standardised induction programme covering key aspects including the organisation’s strategy, governance framework, financial performance, risk profile, and legal and regulatory obligations. Where possible, incorporate organisational site visits (e.g., branch tours) to provide Directors with practical insights that deepen their understanding of the organisation’s mandate and operations.
5.Engagement with Senior Management
Facilitate briefing sessions between the Board and senior management to enhance Directors’ understanding of operational realities and assurance mechanisms. This engagement promotes transparency and strengthens the Board’s oversight function.
6.Regular Skills Assessment
Conduct periodic assessments of board skills and competencies to identify gaps and inform induction content, training priorities, and succession planning. Such assessments help boards remain responsive to emerging governance challenges, including cybersecurity risks, Artificial Intelligence (AI), and Environmental, Social and Governance (ESG) considerations, all of which are attracting heightened regulatory and stakeholder scrutiny.
7.Tailored Training Opportunities
Encourage Board members to participate in local and international training programmes relevant to the organisation’s sector and strategic needs. Exposure to best practices, regulatory developments, and global perspectives enhances their capacity for informed decision-making, risk management, and leadership.
8.Knowledge Sharing and Management
Adopt a practice in which directors and senior managers who attend external training or conferences prepare concise briefing notes or presentations summarising key learnings for the full board. This promotes collective learning, disseminates key insights, and ensures that emerging risks and governance trends are considered at the board level.
9.Continuous Professional Development (CPD)
Directors should maintain ongoing professional development within their respective fields to ensure their expertise remains current and relevant. To support this, organisations should implement an annual CPD declaration process for directors who are members of professional bodies, providing evidence of compliance with professional requirements and reinforcing a culture of continuous learning.
Conclusion
Board training and structured induction are not optional niceties; they are essential governance mechanisms that convert statutory authority into effective oversight. A well-designed induction ensures new directors understand the organisation’s strategy, risks, regulatory context and governance framework from day one, while ongoing, targeted training keeps the board’s collective skillset aligned with evolving strategic, regulatory and operational demands. Together, they raise the quality of decision-making, strengthen risk and compliance controls, improve board dynamics and enhance stakeholder confidence.
To maximise impact, these initiatives must be deliberate, structured, and measurable. Induction programmes should be standardised yet tailored to individual needs, while training should be periodic, needs-based, and supported by clear accountability through management ownership, adequate resourcing, and board-level oversight. Integrating learning outcomes into director evaluations and succession planning ensures that capability gaps are addressed proactively, strengthening board effectiveness and sustaining high standards of corporate governance over the long term.

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Question 12

Kenya’s Virtual Asset Service Providers Act, 2025: What You Need to Know

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Date: 4th December 2025
Kenya’s Virtual Asset Service Providers Act, 2025: What You Need to Know
Authored by James Tugee, FCIArb and Dr. Nelson Otieno
																														
A. Summary of the law
The Virtual Asset Service Providers Act, which received Presidential assent on 15th October 2025 and came into force on 4th November 2025, sets out the regulatory framework for the activities of virtual asset service providers (VASPs) in and from Kenya. It provides for licensing requirements, expands the scope of regulated virtual asset activities, and integrates anti-money laundering provisions to enhance consumer protection and integrity of virtual asset transactions.
B. Who is affected?
The legislation impacts the following actors: 
1. Registered businesses which plan to enter or are entering the virtual asset market in Kenya.2. Virtual asset service providers whose activities are regulated and are subject to the licensing and operational requirements in the Act.3. Persons engaging in the following types of virtual asset activities:

Virtual asset exchanges.
Virtual asset wallet provider.
Virtual asset payment processor.
Virtual asset broker.
Virtual asset investment advisor.
Virtual asset manager.
Virtual asset offering promoter.

C. Required actionsThe Act outlines the following concrete compliance steps:
1. Licensing: Virtual asset service providers must apply for and obtain licensing from regulatory authorities (such as the Central Bank of Kenya and Capital Markets Authority)2. Engagement only in permissible business activities. Licensed businesses must only engage in permitted virtual asset activities.3. Enhanced procedures which enable licensed providers to establish enhanced anti-money laundering and Know Your Customer (KYC) procedures tailored to the relevant virtual asset transactions.4. Compliance with various regulatory requirements. The Act provides robust institutional mechanisms which ensure licensed businesses meet prescribed reporting obligations (including financial reporting), ensure compliance with prior-approval processes under the law; ensure operational competence; and implement prescribed standards of solvency, insurance, data protection, cybersecurity, integrity, and prudence.5. Adjustment of internal business policies to reflect prohibitions on mixer or tumbler services as well as anonymity-enhancing services.6. Monitoring the provisions of the new law to ensure existing virtual asset service providers comply with the requirements within one year from the date of commencement. 
D. Practical impactThe law represents a change in the legal landscape in that: 
1. It is the first framework for regulating a wide range of virtual asset activities in Kenya.
2. It sets requirements and procedures for licensing virtual asset service providers, as well as approval of virtual asset offerings in Kenya. 
3. It designates the Capital Markets Authority and the Central Bank of Kenya as primary regulatory authorities which licence, monitor, and enforce the standards set by it. The authorities regulate different activities as specified in the First Schedule to the Act.
4. It sets applicable standards for regulating illicit financial flows which could potentially emanate from virtual asset transactions. It does this by setting stringent authorization requirements and controls.
5. It introduces consequential amendments to some existing laws. It specifically amends sections of The Proceeds of Crime and Anti-Money Laundering Act, The Capital Markets Act, The Central Bank of Kenya Act, and The National Payment System Act. 
&#8220;Kenya steps boldly into the future of financial technology with new rules and standards for regulating the virtual asset ecosystem.&#8221;
E. Effective dates and next steps 
1. CommencementThe Act received Presidential assent on 15th October 2025. The official commencement date was 4th November 2025.
2. Waiting periodExisting virtual asset providers have a one-year grace period to meet the licensing and operational requirements introduced by the Act.
3. Transitional provisions to take note ofBesides the one-year grace period, there are no other transitional provisions to note.
4. Phased compliance requirements, if anyEnforcement is expected to apply uniformly from 4th November 2025 for new entrants into Kenya’s virtual asset market.

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Question 13

Reflections on Decisions of the Courts in 2025 on Key Aspects of Employment & Labour Relations

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Date: 3rd December 2025
REFLECTIONS ON DECISIONS OF THE COURTS IN 2025 ON KEY ASPECTS OF EMPLOYMENT & LABOUR RELATIONS.
Authored by Irene Kashindi,FCIArb and Mellap Wataka
																														
As we draw to the close of the year, we reflect on some of the key decisions that have been made by the Court of Appeal and the Employment & Labour Relations Court in the course of 2025 touching on various aspects of employment and labour relations.
These decisions are important as they continue to shape the land- scape of how employers engage with different categories of employ- ees and organize their operations in that regard.
These are highlighted below.
Gogni Rajope Construction Company Limited & an- other v Omondi (Civil Appeal 321 of 2019) [2025] KECA 161 (KLR) (7 February 2025) (Judgment) 
The Employment Act is seen as a reformist document that moved away from the common law position that deemed the employer/employee relationship to be on an equal pedestal, to a more realistic position, where one party (the employer) would set the terms and conditions. Employees employed for less than 13 months (and by ex- tension those on probation) are entitled to a fair hearing before dismissal from employment.
Judicial Service Commission v Muraya & 4 others (Civil Appeal E002 of 2024) [2024] KECA 1599 (KLR) (8 November 2024) (Judgment) 
An employee’s right to a fair hearing before dismissal from employment is in- alienable even in situations where the employee’s conduct smacks of guilt and they have a hopeless defence.
Unilever Tea Kenya Limited v Kenya Plantation & Agricultural Workers Union (Civil Appeal E015 of 2020) [2025] KECA 830 (KLR) (9 May 2025) (Judgment) 
Victims of sexual harassment do not have to testify in person. It is sufficient if they provide detailed witness statements. This was affirmed by the ELRC in TOO v Weza Care Solutions (Cause E086 of 2024)  [2025]  KECA  1789 (KLR) (30 October 2025) (Judgment)
Chege v Timsales Limited (Civil Appeal 29 of 2020) [2025]  KECA  1660  (KLR) (21 October 2025) (Judgment) 
A resignation by an employee with immediate effect issued to avoid a disciplinary process is not valid.
Opiyo v AAR Healthcare Kenya Limited (Civil Appeal E126 of 2021) [2025] KECA 1408 (KLR) (31 July 2025) (Judgment) 
Financial damages to an employer are not confined to actual monetary loss and ex- tends to reputational risks that affect an employer’s credibility.
Abdulahi Firimbi t/a Sinai Hotel v Imungu (Appeal E131 of 2024) [2025] KEELRC 1283 (KLR)
Where an employee absconds from duty despite being requested to return, this constitutes a constructive resignation from employment.
Fuchingo v Robinson Security Group, also known as Robinson Investment Limited [2025] KEELRC 3130 (KLR) 
Both employer and employee have a duty to maintain  the  employment relationship by communicating with each other. An employer who absconds from duty and avoids contact with the employer effectively terminates the employment relationship by conduct.
Mercy (Kenya) Mater Misericordiae Hospital (Cause 650 of 2020) [2025] KEELRC1454 (KLR)
Pre-redundancy consultations must be meaningful and not merely a charade to tick a procedural box. It is not simply about giving an employee an opportunity to comment on a redundancy decision that has already been made. It should involve taking employees’ views, giving them due consideration  and  exploring  alternatives to redundancy.
Gatobu v Tullow Oil Kenya Limited (Cause E964 of 2021) [2025] KEELRC 1786 (KLR) (18 June 2025) (Judgment) 
 A mutual separation agreement is only valid if it has all the elements of a valid contract (offer, acceptance and consideration) for it to be binding and enforceable.
Kenyatta University v Thomas & 25 others (Civil Appeal E494 of 2022) [2025] KECA  1014  (KLR)  (30  May2025) (Judgment) 
Continuous engagement of ‘casual’ employees for an extended period automatically converts their employment to open-ended terms small breaks between the periods of engagement not- withstanding.
Ondieki v Nyamosongo Cooperative Society Ltd [2025] KEELRC 3132 (KLR) –
Consultations under Section 10 (5) of the Employment Act relating to variation of employment terms do not necessarily have to result in express consent by the employee.

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Question 14

Kenya Tightens Digital Controls: What The Computer Misuse And Cybercrimes (Amendment) Act, 2025 Means For Actors In The Digital Ecosystemv

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Date:6th November 2025
KENYA TIGHTENS DIGITAL CONTROLS: WHAT THE COMPUTER MISUSE AND CYBERCRIMES (AMENDMENT) ACT, 2025 MEANS FOR ACTORS IN THE DIGITAL ECOSYSTEM
Authored by Irene Kashindi,FCIArb, George Kashindi, Dr. Nelson Otieno and Stellah Nekesa
																														
Summary of the law
The Computer Misuse and Cybercrimes (Amendment) Act, 2025 (Amendment law) introduces targeted updates to Kenya’s Computer Misuse and Cybercrimes Act, 2018 (Principal Act).
The updates are aimed at addressing evolving digital threats and aligning enforcement mechanisms with current technological realities. The Amendment law expands categories of regulated assets to cover digital assets and introduces a definition for virtual accounts. It also empowers authorities to block unlawful or extremist online content and empowers courts to order takedowns of harmful digital material.
Who is affected
The changes in the law impact a wide spectrum of actors in the digital ecosystem. The actors include:

Online platforms, website owners and app developers who may be subject to takedown orders where content promotes unlawful activity, terrorism, cultism, religious extremism or inappropriate sexual content involving minors.
 Telecommunications operators and internet service providers who may receive directives to render specified websites or applications inaccessible.
Financial service providers and virtual asset platforms who are now covered by the principal Act owing to expanded/new definitions of “asset” and “virtual account.”
Law enforcement officers and regulators who have broader authority to seek court orders for removal of digital content.
Individuals and organizations, particularly those engaging in online communications since provisions on cyber harassment now include emails and calls.

Required actions 
The new law necessitates the following concrete compliance steps by the various actors:

Compliance gap assessment: Entities should initiate a compliance gap assessment to identify and prioritize procedures, protocols and mechanisms to be aligned with the new law.

Policy updates: Update internal cybersecurity and data governance policies and user engagement protocols to account for new definitions such as virtual account, cybercrime and computer misuse as well as the expanded definition of cyber harassment, which now covers conduct including through email and SMS that detrimentally affects a person or is likely to cause another person to commit suicide.

Content moderation protocols: Implement rapid review and response mechanisms for unlawful, inappropriate, or extremist content on a website or application.

Incident response enhancement: Put in place or enhance existing takedown and reporting mechanisms to align with potential Court orders for removal of content, closure, or deactivation of website or digital device or National Computer and Cybercrimes Co-ordination Committee’s directive rendering a website or application inaccessible.

Employee and stakeholder awareness: Undertake policy and other measures to sensitize staff and stakeholders on the expanded scope of liability for online activities, especially relating to unlawful content, phishing, cyber harassment and identity theft.

Legal readiness: Take appropriate contractual measures and prepare for potential court applications or orders requiring content removal or account deactivation.

Practical impact 
The law represents a change in the legal landscape in that:

It empowers Courts, upon application, to issue takedown or deactivation orders for content linked to terrorism, religious extremism, cultism, as well as sexual content of a minor.
It empowers the National Computer and Cybercrimes Co-ordination Committee to make a directive rendering a website or an application inaccessible.
It elevates compliance obligations, especially for platforms hosting user-generated content, in alignment with best practice on online safety.
It bridges regulatory gaps in the oversight of virtual accounts and digital platforms.
It enhances accountability for content by online intermediaries and digital service providers.

Through this law, therefore, Kenya is looking at tightening its regulatory grip on digital spaces with a view to safeguarding users, protecting minors and reinforcing national cyber resilience.
Effective dates and next steps 
i. When the law comes into effect
The Computer Misuse and Cybercrimes (Amendment) Act, 2025 was assented to by the President of Kenya on 15th October 2025 and was set to come into operation on 4th November 2025.
ii. Waiting period
Several petitions challenging constitutionality of the Amendment law have been filed in Court.
Consequently, implementation of specific provisions of the law has been temporarily halted by the High Court. The High Court specifically issued conservatory orders suspending the enforcement, implementation and operation of the provisions relating to:

The expanded definition of cyber harassment; and
The expanded powers of the National Computer and Cybercrimes Co-ordination Committee to make a directive rendering a website or an application inaccessible.

As at the date of publication of this alert, the suspensions are active. The government has also applied to Court requesting it to lift the suspensions.
iii. Transitional provisions to take note of
The Amendment law does not contain express transitional clauses. Accordingly, all amendments, save for the suspended provisions, take effect immediately upon commencement on 4th November 2025.
iv. Phased compliance requirements, if any
The Amendment law does not provide for phased implementation. Enforcement is expected to apply uniformly from 4th November 2025, except for the provisions which have been suspended

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Question 15

Addressing Artificial Intelligence (AI) and Emerging Technologies in the Workplace

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Date: 14th October 2025
TRANSFORMING EMPLOYMENT LAW: ADDRESSING ARTIFICIAL INTELLIGENCE (AI) AND EMERGING TECHNOLOGIES IN THE WORKPLACE
Authored by Irene Kashindi,FCIArb, Dr. Nelson Otieno 
																														
IntroductionThe concept of work has evolved over time. Presently, workplace environments are undergoing rapid changes due to globalization, technological advancements, and shifts in employment patterns. The rise of automation and artificial intelligence (AI) in the workplace has reduced the need for traditional physical labour. However, it has also raised concerns about job loss and new types of work-related stress. In this alert, we present the paradigm shift of intersection of AI and work, its benefits, associated risks, employer obligations, and recommendations for governance of the changing dynamics of work in the digital age.
Touted Benefits of AIAI is being implemented in various sectors, including language translation, public services, healthcare, and agriculture. In the employment context, the confluence of technology and AI with employment dynamics presents remarkable opportunities for:

Catalyzing job creation, particularly in emerging industries
Promoting inclusivity at the workplace
Verifying employee identity
Enhancing safety and security at the workplace
Ensuring efficiency of business process
Realizing individual employee benefits from persistent memory, follow-up prompts, and automation of repetitive tasks

Shifting paradigmsIntersection of AI and work is crucial to envisioning a future where human potential and technological advancement coexist harmoniously. However, adapting to this transformation presents significant risks that demand a fundamental shift in employment law and systems as follows:
Understanding the Key Risks associated with the use of AI applications at the workplace include:

Violation of data privacy when employers are unable to establish a legal basis for processing personal data when using AI.
Job automation which could jeopardize economic security and add to growing inequality, particularly among low-income communities.
Non-transparent algorithms and decision-making that threaten fairness, transparency, and workers’ rights, income stability, and job security.
Risk of negative impacts on workers’ health as AI-driven monitoring and measurement of productivity may undermine self-determination and raise employees’ anxiety levels.
Risk of reinforcement of structures that deny employee labour rights such as social security and collective bargaining.

These risks may be amplified in Africa where high prevalence of informality often locks workers into traps characterized by low pay and minimal rights protection.
Key Considerations for EmployersAs work evolves, employers should address the key risks by:

Striking a balance between harnessing AI for enhanced productivity and ensuring employee autonomy.
Training its personnel to ensure that they satisfy legal and moral necessities of AI deployment and use at the workplace.
Investing in upskilling and reskilling schemes to prepare workers and develop their capacity    for    emerging AI-facilitated job competencies and possibilities.
Mapping and prioritizing regulatory  requirements  and
standards under existing and emerging AI-specific regulations.
Being open to consultation with trade unions or employee representatives with a view to arriving at a balanced approach to introduction of AI at the workplace.
Reimagining collective bargaining mechanisms for AI work.
Providing safeguards against biased firing and intrusive monitoring or surveillance.
Integrating fairness and accountability into algorithmic systems.
Ensuring employee welfare by minimizing technostress, anxiety, and job insecurity.
Performing AI impact assessment to uncover and mitigate threats to jobs, human rights, and employees’   mental   health.

Key Considerations for Other Stakeholders

A balanced approach to introducing AI in the workplace requires action from multiple stakeholders.
Beyond employers, other key players have complementary roles in promoting ethical AI use at workplace as follows:
Lawmakers must update labour laws to reflect the realities of risks from work automation and AI use at the workplace.
Regulatory bodies should embed ethical governance principles in AI oversight to ensure systems adopted at the workplace are transparent, fair, and inclusive.
Workers should prioritize lifelong learning and reskilling programs to develop both technical and soft skills that are essential for thriving in the AI era.

ConclusionAI is transforming the concept of work, its nature, how it is performed, and managed within business processes. The ongoing effects of this change are influencing economic structures as well as social and legal institutions within societies, both nationally and globally. This is not just a temporary change. For the rapidly changing dynamics of work, reliance on hybrid human-machine systems will continue to shape how work is carried out.
As lawmakers and policymakers step in to regulate AI use, employers must position themselves by proactively leveraging the potential of AI while safeguarding workers from displacement, inequality, and exploitation.
In our outlook, and like many others, we believe that the future requires employers and stakeholders to ensure AI applications in the workplace benefit humanity (rather than replace it), focus on ethical considerations, and maintain ongoing dialogue that includes diverse perspectives.

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Question 16

Casual Engagement or Regular/Open Ended Employment – An Analysis of the Decision of the Court of Appeal in Kenyatta University v Thomas & 25 others (Civil Appeal E494 of 2022) [2025] KECA 1014 (KLR

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Date: 22nd September 2025
Casual Engagement or Regular/Open Ended Employment &#8211; An Analysis of the Decision of the Court of Appeal in Kenyatta University v Thomas & 25 others (Civil Appeal E494 of 2022) [2025] KECA 1014 (KLR)
		Authored by Irene Kashindi, FCIArb and Mellap Wataka
																														
Introduction
Many employers in Kenya grapple with the issue of structuring their employment contract to match the unique needs of their operations. Some employers will opt to engage employees on a casual basis where the work they are required to do is not long term or is dependent on several variable factors such as availability of funding. 
Definition of terms and Court Decisions
Section 2 of the Employment Act defines a casual employee as one whose engagement provides for payment at the end of the day and who is not engaged for more than 24 hours at a time. The Act contains other provisions from which the characteristics of a casual employee per se can be inferred as follows:

Wages of a casual employee are due at the end of the day – Section 18 (2) (a)
An employer is not obligated to provide an itemized pay statement (pay slip) to a casual employee – Section 20 (3).

Perhaps anticipating that business realities may require variation of the terms of a casual engagement, the law makers included Section 37 (1) of the Act which provides for conversion of casual engagement to regular/open ended employment in the following circumstances:

Where the casual employee works for a continuous number of days which aggregate to at least 1 month at which point the converted employees are entitled to be paid wages monthly and issued with at least one month’s notice of termination of employment 
Where the casual employee is engaged for work that cannot reasonably be expected to be completed within an aggregate period of 3 months, at which point they are fully converted to regular employes

The Court of Appeal in Kenyatta University v Thomas & 25 others (Civil Appeal E494 of 2022) [2025] KECA 1014 (KLR) dealt with the issue of engagement of employees on a casual basis and the circumstances in which casual employment may be converted into regular/open ended employment under Section 37 of the Act. 
In the Kenyatta University Case, the court considered the facts including that the University had engaged several employees including the 26 that had filed the suit in court on a casual basis. The University argued that this had been done as part of austerity measures to ensure prudent spending of the public funds that are used to run its operations. Therefore, the University opted to engage employees that did not perform core functions (teaching and administration) on casual basis. This included the 26 employees who were engaged as electricians, masons, painters, carpenters etc. 
The Court, however, noted that the employees had been engaged for several years at a time and tax returns produced by them showed that in 2017 they had been engaged continuously for aggregate periods ranging between 9 to 11 months at a time albeit with some short breaks. This arrangement by the University had been in place with the 26 employees for several years, with some going up to 20 years. The Court was of the view that this certainly converted casual employment to regular/open ended terms of employment under the Act and was of the view that the short breaks in between the periods of engagement were immaterial. In making this finding the court held that:
Short breaks between the engagements would not change the fact that the University engaged the respondents on casual basis for considerable long periods of time, and any short breaks in between would not change the true character of the arrangement. To hold otherwise would encourage crafty employers to simply impose artificial breaks in this type of arrangement so as to go round the rigours and reality of section 37 of the Act.
While appreciating the core needs of the University did not allow for engagement of the employees on ‘permanent and pensionable’ terms, the Court noted that the University could have structured the contracts in a different manner that is compliant with the provisions of the Act and approved the finding of the trial court that “ nothing stopped the respondents (now the appellant) from issuing the petitioners with written terms of employment for fixed term contract or seasonal contracts, place work contracts or as the case demanded’’.
The foregoing meant that the Court of Appeal agreed with the findings of the Employment and Labour Relations Court on the conversion of the contracts of the 26 employees from casual terms to regular/open ended employment and the University’s appeal failed to that extent. 
Nevertheless, the University was partially successful in the appeal as the Court held that the conversion could only apply to the 26 employees that were parties to the litigation and not to other staff as the case was not a representative one and no orders for conversion in rem had been sought. 
Regarding a claim for overtime pay for the duration of the engagement with the employees (spanning 11 to 20 years), the Court relied on the provisions of Section 53 of the Labour Institutions Act and Section 74 of the Employment Act in limiting the grant of the order for payment of these claims to 3 years before the suit was filed. 
Conclusion
This decision of the Court of Appeal, which is binding on the Employment & Labour Relations Court, sheds new light on the engagement of employees on a casual basis and on conversion of such engagements to regular terms. Employers must therefore be careful to ensure proper and legally compliant structuring of their contracts of employment depending on their individual business concerns. 
For more information on this please contact us on nairobi@mmkadv.co.ke

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Question 17

What amounts to Fair Termination of Employment for Poor performance? Key ELRC insights in Mwaura v Safaricom PLC

Accepted Answer

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Date: 19th September 2025
WHAT AMOUNTS TO FAIR TERMINATION FOR POOR PERFORMANCE? KEY ELRC INSIGHTS IN MWAURA V SAFARICOM LIMITED [2025] KEELRC 2431 (KLR)
Authored by Irene Kashindi,FCIArb and Faith Wangong&#8217;u
																														
We successfully acted for Safaricom PLC, the Respondent in Mwaura v Safaricom Limited [2025] KEELRC 2431 (KLR) where the Employment and Labour Relations Court (ELRC) affirmed the legal principles for terminating employment on account of poor performance and found that Safaricom had complied with both substantive and procedural requirements.
The Claimant challenged his dismissal which was on account of poor performance, alleging it was unfair. The Court dismissed the claim and upheld the dismissal, finding that it was lawful, reasonable, and fairly executed in accordance with the Employment Act and judicial precedent.
Key takeaways from the judgment

Fair termination for poor performance requires a structured process

The Court restated the principles laid out in Jane Samba Mukala v Ol Tukai Lodge Ltd [2013] KEELRC 794 (KLR):

An employer must have a policy for assessing good and poor performance
The employee must be given a hearing before termination of employment.
The Court found that Safaricom complied with all these steps. It set clear performance targets, conducted evaluations, placed the employee on a PIP, and finally afforded him a chance to be heard before termination.

An employee’s self-appraisal is not conclusiveThe Claimant relied on his own rating of 132% during a PIP cycle to argue that he had met the targets. However, the Court held that an employee’s self-assessment must be validated by the line manager. In this case, the line manager had revised the score to 60 percent, and the Court accepted that this downward revision was valid and consistent with the Company’s policy.
Participation in PIP goal setting does not require necessarily require an employees’ full concurrence.
Court found that the Claimant was consulted during the setting of PIP objectives, as demonstrated by email exchanges. While he may have expressed reluctance to endorse the goals, the Court held that his involvement in discussions satisfied the requirement for consultation.
This finding suggests that an employee&#8217;s participation does not require their full concurrence for the process to be deemed fair.

Standard of proof is balance of probabilities, not certaintyThe Court reiterated that the employer is not required to prove poor performance to a criminal law standard. It cited Kenya Revenue Authority v Reuwel Waithaka Gitahi & 2 others [2019] eKLR, confirming that an employer may terminate employment if they genuinely believe, based on sufficient data, that poor performance exists. The standard is on a balance of probabilities, not beyond reasonable doubt. The Court found that the performance data held by Safaricom was sufficient to support such belief and declared the termination lawful and procedurally fair.

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Question 18

Mutual Separation Agreements Under Kenyan Employment Law: Validity, Enforcement, and Judicial Interpretation

Accepted Answer

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Date: 2nd July 2025
MUTUAL SEPARATION AGREEMENTS UNDER KENYAN EMPLOYMENT LAW: VALIDITY, ENFORCEMENT, AND JUDICIAL INTERPRETATION
Authored by Irene Kashindi,FCIArb and Mellap Wataka
																														
Ending an employment relationship can be an onerous task for an employer who is required to comply with the stringent requirements of the law before dismissing an employee from employment. Under section 47(5) of the Employment Act, an employee bears the initial burden of proving that termination occurred, after which the heavier burden shifts to the employer to demonstrate that the termination was both procedurally and substantively fair. The implication is that any process for termination of employment termination poses a potential legal risk for the employer. 
However due to the varied circumstances leading up to termination of employment, including urgency, sensitivity, profile, expediency, confidentiality and other nuanced business considerations, some employers and employees agree to mutually terminate the employment relationship.
There is no provision for mutual separation in the Employment Act and parties to such arrangements are left to their own devices subject to compliance with the normal requirements of a valid contract and principles set out in case law.
The judgment of the Employment & Labour Relations Court (ELRC) in confirming that an employment relationship can be ended by mutual termination in Alfred Nzomo Kithusi v Hillcrest Investments Limited [2021] eKLR stated in part that “employment is not a marriage and as such it can be dissolved by consent of the parties to an employment contract through mutual agreement on the basis of mutual undertaking between them for example waiver of claims, confidentiality, future cooperation among others.” 
Justice Nzioki wa Makau in his book “ Labour Law & Industrial Relations in Kenya” 2021 states at page 130 regarding termination of employment contracts by mutual consent that:
“Either party to an employment contract can initiate the termination of an employment contract. Under this from of termination, no grounds are required. The termination involves the act of two contracting parties wishing to end their contract on their own terms and without an external assessment of the legitimacy of the reasons thereof by an administrative body”
Kenyan courts have on various occasions interpreted mutual separation agreements in claims filed by employees whose employment was terminated through mutual separation agreements. The ELRC has repeatedly held that the courts will enforce the terms of a mutual separation agreement provided it has all the ingredients of a valid contract being offer, acceptance and consideration and that the agreement was made freely without any misrepresentation, duress or coercion.
This position was stated in Zaidi v Lake Turkana Wind Power Limited (Cause  E321  of  2022)  [2023] KEELRC 3414 (KLR) where the court held that:
“It is not uncommon that a contract of service can be ended through a mutual separation agreement between the parties. The agreement could set out the terms and conditions of the separation. The same being a contract between the parties must possess the ingredients of a valid contract, absence of the ingredients shall render its validity assailable in a court of law or any other appropriate forum.”
The claimant in Mboya v AIG Kenya Insurance Co. Ltd [2023] KEELRC 2261 (KLR) contended that a mutual separation agreement leading to termination of the contract of employment could not be enforced by the court as the contract of employment did not specifically provide for this mode of termination.
The ELRC in dismissing the claim held that “the fact that the parties did not specifically state in the contract that they could mutually close the contract did not take away their power to mutually close the contract.”
In Wokabi v British American Tobacco Kenya Limited [2022] KEELRC 12694 (KLR) the claimant filed suit against the respondent for constructive dismissal which amounts to unfair termination on the basis that the mutual separation agreement signed leading to the end of the employment relationship was signed under duress and coercion. However, the claimant confirmed receipt of a payment of Kshs.10 Million in respect of the mutual termination. The court considered the terms of the agreement. The court in dismissing the claimant’s claim held that:
It was agreed that payment was in full and final settlement of all and any claims or rights of action that the claimant.
The mutual agreement is comprehensive and left the claimant no room to wriggle out.
The claimant initiated the agreement through his letter of resignation and was given the opportunity to seek legal and non-legal advice, before execution of the agreement.
Allowing the claim would allow the claimant to be unįustly enriched.
Where a valid mutual separation agreement has been entered into by the parties, it will be binding on both the employee and the employer. Any payments due to the employee by the employer under such an agreement will be enforced by the court. This was the case in Ndegwa v National Environmental Trust Fund [2024] KEELRC 1288 (KLR) where the ELRC ordered the respondent to make the payments that were due to the claimant under the mutual separation agreement held that “It is trite that a contract comes into existence when an offer by one party is unconditionally accepted by the other and the parties must have intended to create a legally binding agreement, some consideration must pass.”
The ELRC has, however, also held that a mutual separation agreement, as expressed in its name, must be mutual and entered into voluntarily. In Pauline Waigumo Muthiga v Diamond Trust Bank Ltd [2021] eKLR the ELRC set out the principles applicable in considering the validity and enforceability of such agreements including the following:
As a general principle a pretrial settlement operates as a contract between the parties.
It is to be considered as generally binding on the parties unless it is assailed on the usual grounds that will vitiate a contract.
In order to determine whether the pretrial settlement operates as a bar to further claims by the parties to it, a trial court or other arbiter must consider: the import of the settlement; whether the parties executed the agreement freely; and whether they had relevant information and knowledge regarding the settlement.
The decision of the ELRC in Gatobu v Tullow Oil Kenya Limited [2025] KEELRC 1786 (KLR) emphasizes the need for mutuality in such agreements. In that case the court found that the claimant had been offered a mutual separation agreement by the respondent after some strain in the employment relationship and the claimant refused to sign this. Afterwards, the respondent initiated a disciplinary process that culminated in the termination of the claimant’s employment for alleged breach of the respondent’s policies. The court held that such termination was unfair and awarded 12 months’ salary.
From the decisions of the courts discussed above, it is clear that mutual separation agreements are a valid and enforceable way of terminating employment agreements provided they meet the legal requirement of a valid contract. It is incumbent upon employers to ensure that these requirements are met to avoid any claims to vitiate mutual separation agreements and that once signed, the obligations of the parties are met.

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ILO’s Fundamental Principles and Rights at Work: Basic Insights for employers

Examining the right to life in an employment context: Faith Kaburuku & 2 others v. NBK

Mutual Separation Agreements under Kenyan Employment Law

Question 19

ILO’s Fundamental Principles and Rights at Work: Basic Insights for employers

Accepted Answer

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Date: 16th June 2025
ILO’s Fundamental Principles and Rights at Work: Basic Insights for employers
Authored by Irene Kashindi, FCIArb 
																														
Understanding workplace rights is not just a legal obligation it is good business practice. They represent the baseline standards that every workplace should uphold and apply to all employers, regardless of whether their country has ratified the related ILO Conventions.
As a law firm that advises employers across sectors, we believe it is essential to understand how these principles translate into real workplace obligations, particularly in how you structure contracts, develop policies, and manage people.

Freedom of association and collective bargainingEmployees have the right to join trade unions and to seek collective bargaining. Under Kenyan law, the recognition of a trade union for purposes of collective bargaining is subject to specific thresholds and procedures.

Elimination of forced or compulsory labourNo person should be made to work under threat, coercion, or deception. This includes modern forms of forced labour such as human trafficking and debt bondage. Employers must vet labour providers and implement ethical hiring practices

Abolition of child labourChildren should not be engaged in work that is mentally, physically, socially, or morally dangerous, or that interferes with their education. Employers must comply with minimum age legislation, carry out age verification where necessary, and monitor supply chains for hidden risks of child labour.

Elimination of discrimination in employment and occupationEmployment decisions must be fair and free from bias. Discrimination based on gender, ethnicity, religion, disability, race or other prohibited grounds is unlawful. Employers must embed non-discrimination principles into their HR policies, grievance mechanisms, and organizational culture.

A safe and healthy working environmentThis was recognized in 2022 as a Fundamental Principle and Right at Work, following a landmark decision by the ILO’s International Labour Conference. The decision reflected a global consensus reinforced by the COVID-19 pandemic that occupational safety and health are central to decent work and sustainable business operations. Health and safety is now a core right not just a compliance issue.

Why the Principles and Rights should matter to employers:
These five principles are not just about legal compliance. They are central to building ethical, productive and sustainable workplaces. They shape:

Employment contracts and workplace policies
Internal grievance and disciplinary frameworks
Risk assessments, safety standards and ESG audits
Observance of basic and minimum rights at work
Alignment with the principles of decent work and fair labour practices
Long-term sustainability in business operations and workforce relations

Understanding and applying these principles helps employers mitigate risk, enhance reputation and foster a stable, rights-respecting work environment.
Whether you lead HR, compliance, or legal functions, understanding these five principles is essential to managing risk, maintaining workforce trust, and upholding your obligations under national and international law.
Learn more: https://www.ilo.org/projects-and-partnerships/projects/fundamental-principles-and-rights-work

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Question 20

Examining the right to life in an employment context: Faith Kaburuku & 2 others v. NBK

Accepted Answer

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Date: 11th June 2025
EXAMINING THE RIGHT TO LIFE IN AN EMPLOYMENT CONTEXT: FAITH KABURUKU & 2 OTHERS VERSUS NATIONAL BANK OF KENYA (PETITION E030 OF 2021)
Authored by Irene Kashindi,FCIArb and Winnie Songok 
																														
What is the right to life in an employment context? We successfully defended the Bank in this petition which raised a novel point by creating an intersection between employer liability for workplace safety in ‘high-risk’ environments and the constitutional right to life. While the Work Injury Benefit Act would have been suited to address the issue had it happened in the work-place, the petitioners alleged that the employer had breached an employee’s right to life under Article 25 of the Constitution of Kenya.
Background
The first petitioner filed the petition on her behalf and as the administrator of the estate of Benard Waweru (the deceased) and a next friend to the second petitioner, her child with the deceased.
The deceased was an employee of the respondent who was serving at the Garissa branch. He tragically lost his life in an attack while leaving a restaurant after working hours. The petitioner contended that the decision to transfer the deceased to the Garissa branch without taking into consideration the high-risk environment was a violation of the deceased’s constitutional right to life and an unfair labour practice.
Alleged breach of right to life 
The petitioner argued that the respondent ought to have known and appreciated that Garissa was a danger zone and put in place adequate measures to ensure a safe work environment for the deceased. The issue was whether by being transferred to Garissa, the respondent was jeopardizing the enjoyment of the right to life by the deceased.
The court held that in the absence of reports, advisories or evidence from formal security sources such as the Kenya Police Service the status of security in Garissa town, there was no proof to show the respondent was complicit in the loss of life of the deceased. In addition, the deceased was not at the place of work when he tragically lost his life.
Claim that transfer to Garissa amounted to an unfair labour practice
The petitioners argued that the respondent did not favorably consider the concerns on security raised by the deceased about the transfer to Garissa and that the respondent breached the claimant’s right to fair labour practice. The court found that an employer reserves the discretion to decide the workstation for an employee and that the petitioners had not shown that the respondent was in breach of any statute or policies in stationing the deceased in Garissa.
Conclusion
The court found that the petitioner failed to prove that the respondent had violated the right to life and fair labour practice and dismissed the petition. You can access the full judgment here: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/13513/eng@2024-12-19

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