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On April 4, 2022, the President signed five bills into law including the Employment (Amendment) Act 2022 (the Amendment Act) which amends section 9 (General provisions of a contract of service) of the Employment Act 2007 (the Act). The purpose of the amendment is to reprieve job seekers who are often required to fulfil heavy documentation requirements when applying for work. These include clearance or compliance certificates from some or all of the following agencies: the Kenya Revenue Authority, the Directorate of Criminal Investigations, the Higher Education Loans Board, the Credit Reference Bureau and the Ethics and Anti-Corruption Commission. On average, procuring these certificates can take one to two months and costs approximately KES 5,000 (approx. USD 50). An applicant, therefore, has an unfair financial burden before they have even secured the desired position and signed an employment contract.
Through the amendment to section 9 of the Act, employers (including employment agencies) are prohibited from requiring job seekers to provide clearance or compliance certificates until they intend to enter into a contract of service with that employee. Where such an intention exists, the Act as amended, provides that the employer may demand these certificates from the employee in compliance with Chapter Six of the Constitution of Kenya, 2010. It is worth noting that an employer may withdraw an offer of employment where the employee fails to provide the certificates required.
Notwithstanding the above, an applicant for a state office may still be required to provide the afore-mentioned certificates when required to do so at any point during the recruitment or approval process. The term state office is defined in the Constitution as including: the President, the Deputy President, a Member of Parliament, a Judge and Magistrate, the Attorney General and other senior governmental positions. Therefore the burden of procuring these certificates prior to securing employment will apply only to these specific governmental positions.
Fees Charged by Public Entities and Timelines
In addition, the new sub-section 8 (a) of the Amendment Act provides that the issuing entities are no longer entitled to charge fees to issue clearance or compliance certificates required under the Act or any other written law. Further, the issuing entities are required to either issue the clearance or compliance certificates within seven days of receipt or reject the application. These changes are welcome given the time, costs and effort required to be expended by job seekers to navigate several government offices to procure such documentation.
Should you have any questions regarding the information in this legal alert, please do not hesitate to contact Sonal Sejpal or Rosa Nduati-Mutero.