Month: October 2026

It has become abundantly clear that a taxpayer and their records relating to income and expenses are tied at the hip to support tax returns. The Kenya Revenue Authority (KRA) mandates that all taxpayers, from small informal traders to large corporations, maintain accurate and reliable financial records. The records should include sales ledgers, bank statements, purchase invoices, payroll details, and loan agreements where such transactions exist, as they form part of the primary documents required to support the returns filed.

Maintaining poor or fraudulent records may result in incorrect tax assessments and expose taxpayers to audits, severe penalties, interest on the unpaid taxes, and possible criminal prosecution.

Micro, small, and medium-sized enterprises (MSMEs) form a large part of Kenya’s business landscape, and many maintain their businesses informally with limited literacy or access to affordable bookkeeping tools. Record keeping allows businesses to claim legitimate deductions, access credit, track profitability, and comply seamlessly with the Kenyan tax laws. It is now mandatory for all businesses to comply with the electronic tax management system (eTims), which will enable a taxpayer to claim business expenses.

It is imperative that a taxpayer in Kenya understands the interplay between taxation and record-keeping. It is no longer a regulatory burden but a strategic business practice that promotes transparency and minimizes legal risks.

This article explores the legal framework, practice requirements, common mistakes, and benefits of proper record-keeping in the ever-evolving Kenyan tax regime.

 

What is the legal framework for record keeping in Kenya?

The law in Kenya, in particular the Income Tax Act, Cap. 470 and the Tax Procedures Act, Cap. 469B, impose statutory obligations that require all taxpayers to maintain and retain records sufficient to determine their tax liability. These records must be kept for a minimum period of five (5) years from the end of the year of income to which they relate.

 

In cases where a company is under liquidation or where an individual has a tax dispute, records will have to be maintained for a longer period until the liquidation is finalised or the dispute is resolved. Failure to maintain proper records constitutes an offence and attracts penalties up to KES 2 million for a body corporate or imprisonment for individuals, in addition to late payment interest and default penalties.

 

The Role of Technology: iTax and eTims

The tax regime in Kenya has evolved significantly through aggressive digitization of tax administration in a bid to attain compliance by taxpayers and to simplify tax administration. By introducing eTims, it is mandatory for businesses to generate and transmit all sales/transactions electronically in real time to KRA. With this enhanced requirement, inadequate record-keeping will be a thing of the past, as a taxpayer can only claim expenses generated through eTims.

All transactions must be accompanied by underlying records to generate eTims invoices. Failure to comply will result in mismatches between declared sales and KRA’s real-time data, leading to automatic audit triggers and investigations, estimated assessments, penalties and interest, objection and appeals, risk of listing with the Credit Reference Bureaus (CRBs), and bank account agency notices.

A taxpayer may think that compliance with eTims is expensive; however, KRA has provided free eTims solutions that allow a taxpayer to generate tax-compliant invoices.

 

Benefits of Proper Record Keeping

There are tangible advantages for a business to maintain proper records, and this should not be treated as a mere compliance requirement. A taxpayer who maintains proper records can claim all expenses resulting in an accurate tax computation, as they have the requisite documentation to support all the expenses claimed.

There is a lower risk of audit due to consistent and verifiable documentation, which ensures that a taxpayer does not end up on the KRA radar for audit purposes. Good record keeping allows the taxpayer to have better cash flow management, as this allows tracking of income and expenditure, thereby allowing timely settlement of tax obligations when the deadline approaches.

Good record keeping assists a business in accessing credit, as they will have an audited or properly prepared financial statement, which is required before banks or microfinance institutions can approve a loan. With proper records, where a taxpayer applies for VAT refund, supporting such an application is straightforward, as the purchases and sales records are accurate and verifiable, resulting in an increase in cash flow once approved.

 

Turnover Tax and the Informal Sector

The Income Tax Act, Cap. 470 provides for a simplified tax regime of Turnover Tax (TOT) currently at a rate of one point five percent (1.5%) on gross turnover payable monthly on the 20^th day of the following month. With a turnover of between 1 million and 25 million Kenya shillings, a taxpayer is eligible to opt to declare their income under this regime. This is a final tax, and there is no requirement to file an end-of-year income tax return. The taxpayer will be required to maintain records of daily sales to support the monthly returns.

With the recent pronouncements on tighter tax compliance measures by KRA, the informal sector will have to review its operations to comply to avoid tax assessments.

 

Related Case Law

Courts have considered the issue of tax assessments and maintaining records in several cases. The cases discussed below underscore that good record keeping is no longer just an administrative requirement but will also assist a taxpayer in legal disputes when assessments are raised by KRA.

In Avery Lounge Limited v Commissioner of Domestic Taxes (Income Tax Appeal E213 of 2024) [2026] KEHC 769 (KLR) (Commercial and Tax) (30 January 2026) (Judgment), the taxpayer was profiled by KRA as a nil filer or non-filer as they either declared zero income or failed to file returns despite having commercial activity. The appeal to the High Court challenged the Tax Appeals Tribunal (Tribunal) decision, which emphasised that the burden of proof lay with the taxpayer. The Tribunal further held that the taxpayer had failed to provide sufficient documentary evidence to rebut the assessment by KRA.

The High Court on appeal upheld the decision of the Tribunal and stated that the taxpayer did not provide primary evidence in accounting, which consists of the source documents: the sales receipts, the invoices, the loan agreements, and the ledger entries that classify each transaction. In the circumstances, the taxpayer did not establish a prima facie case to discharge the burden of proof. The court further determined that KRA was justified in applying the banking analysis method as the taxpayer had failed to provide the requisite documents to support expenses incurred in the production of income, as well as the loans and repayment schedules.

In the case of Ng’ang’a v Commissioner of Legal Services and Board Coordination (Tax Appeal E029 of 2025) [2026] KETAT 11 (KLR) (16 January 2026) (Judgment) the Tribunal considered the case of a taxpayer operating as a sole proprietorship who filed nil returns resulting in an assessment being issued on the basis that they had not provided sufficient documentation to support the business operations. The assessment was based on an analysis of the taxpayers’ banking records, where the net banking was treated as expected income for purposes of determining taxable income.

The Tribunal held that the assessment by KRA enjoys a presumption of correctness until rebutted by probative documentary evidence presented by the taxpayer. It was therefore the taxpayer’s legal obligation to provide primary documents, records, reconciliations, ledgers, bank statements, source documents or other supporting records which would be sufficient to demonstrate that the Commissioner’s assessment was erroneous.

This case reaffirms the position that it is not only sufficient for a taxpayer to make assertions, generalized explanations or contest principles, but rather the taxpayer must demonstrate with specificity the error, which must be supported with hard evidence. Having interrogated the documents presented before the Tribunal, it determined that the taxpayer did not provide documents to contradict, weaken or invalidate KRA’s adjustment. Rather, the taxpayer had challenged the methodology and conclusions applied by KRA. In the circumstance, KRA was justified in making the best judgment assessment. The Tribunal re-emphasised that the taxpayer did not discharge the burden of proof and therefore KRA’s assessment was correct.

 

Finally, in Nakuru Cement Supplies Limited v Commissioner of Investigations and Reinforcement (Tax Appeal E038 of 2021) [2022] KEHC 16518 (KLR) (Commercial and Tax) (16 December 2022) (Judgment) the High Court held that the taxpayer was the custodian of their own business affairs and possessed the specific knowledge as a result the court determined that the taxpayer was the custodian of the necessary documents required under section 58 of the Tax Procedures Act to maintain records which were to be submitted to KRA. The court further stated that if these documents were provided, they would have proven or disproved the information acquired from suppliers and relied upon by KRA in the assessment.

 

Conclusion

It is no longer business as usual, as taxation and maintaining good records are not just an administrative requirement to attain compliance but part of the normal operation of a business and cannot be overlooked. It is an express requirement of the law, and technology has been introduced to enforce it, and failure results in penalties charged together with interest. Taxpayers must therefore engage in tax education and acquire the requisite digital tools to assist in maintaining their business transactions and accounting systems. It is also prudent to engage professionals such as ourselves to undertake tax health checks and further assist when a dispute arises.

 

The intersection between Mental health and Employment law in Kenya has become a focal point for judicial scrutiny. Two recent landmark decisions, AWW (Suing as Next Friend and Mother of GWW) v Central Bank of Kenya [2024] KEELRC 13585 (KLR) (“AWW v CBK”) from the Employment and Labour Relations Court (ELRC) at Nairobi and Chief of Kenya Defence Forces & another v Etyang [2026] KECA 175 (KLR) (“KDF v Etyang”) from the Court of Appeal (CoA) sitting at Kisumu, serve as a clarion call for employers to rethink how they manage employees struggling with mental related illnesses.

These judicial decisions have now lifted the veil on what the law demands, underscoring a significant paradigm shift in Kenyan jurisprudence. The courts have moved beyond mere procedural compliance with the Employment Act (Cap. 226 of the Laws of Kenya), establishing that employers now bear an affirmative, substantive duty to accommodate mental health conditions.

Together, they send an unambiguous message: dismissing an employee on account of mental ill-health, without first discharging specific duties of assessment, care and reasonable accommodation, exposes employers to substantial legal and financial liability.

 

The Shift: Beyond “Service No Longer Required”

Historically, employers have relied on standard disciplinary frameworks to handle performance issues or absenteeism. Often, conduct directly linked to underlying medical and psychological conditions was incorrectly classified as “insubordination,” “desertion”, or “absenteeism”. The recent judgments make it clear that this approach is no longer tenable.

• Affirmative Duty to Investigate: When an employee displays signs of deteriorating mental health, an employer cannot simply proceed with disciplinary action. There is a positive duty to investigate the underlying medical causes and the extent of the employee’s incapacity.
• The “Lucid Interval” Fallacy: In the AWW v Central Bank of Kenya decision, the employer argued that the employee had lucid moments during the disciplinary process. However, the ELRC held that appearing lucid does not automatically mean the employee possesses the mental capacity to understand the gravity of the charges or to defend themselves adequately.

 

Reasonable Accommodation as a Statutory Mandate

Reasonable accommodation is not an optional courtesy; it is an obligation imposed by section 15 of the Persons with Disabilities Act (Act No. 4 of 2025) and section 5 of Cap. 266. Employers must actively explore all available alternatives before considering the termination of employment.

Further, section 3 of the Mental Health Act (Cap. 248 of the Laws of Kenya) provides that every person with mental illness has the right to participate fully in society in roles suited to their abilities, access necessary medical, social and legal services, be protected from abuse, discrimination and exploitation, engage in activities that promote their well-being and receive reasonable care and support from their family and the State.

These obligations stem from the Constitution of Kenya, 2010 (Constitution) at – Article 25(a), which guarantees freedom from torture, cruel, inhuman, or degrading treatment; Article 27, which provides for equality and freedom from discrimination; Article 28, which upholds the right to human dignity; Article 41, which ensures the right to fair labour practices; Article 43(1)(a), which guarantees the right to the highest attainable standard of health; Article 47, which provides for fair administrative action; and lastly, Article 50, which ensures the right to a fair trial.

 

What Constitutes Reasonable Accommodation?

Reasonable accommodation requires employers to be flexible and supportive. The courts have highlighted several measures that employers should consider:

• Workplace Modifications: Reallocating non-essential duties, reducing work targets, or shifting the employee to a less stressful environment.
• Medical Support Facilitation: Granting adequate medical leave and assisting the employee in accessing or navigating the employer-provided medical insurance scheme.
• Alternative Roles: Exploring whether the employee can be redeployed to a position that accommodates their health condition.

Failure to implement these steps or subjecting a mentally incapacitated employee to disciplinary action while aware of their condition constitutes indirect discrimination under Article 27 of the Constitution.

 

Procedural Fairness vs. Substantive Compassion

In the KDF v Etyang case, the CoA highlighted the dangers of applying rigid disciplinary frameworks to individuals whose mental health condition stems from workplace trauma.

Key takeaways for employers regarding procedure include:

• Section 41 Compliance is Insufficient: Strictly adhering to the procedural requirements of Section 41 of Cap. 266 (such as the right to be heard) is legally deficient if the employer knows or ought to know that the employee lacks the cognitive capacity to comprehend the hearing.
• Reliance on Medical Evidence: Decisions regarding termination or unfitness for duty must be grounded in professional assessments by qualified medical practitioners or a properly constituted Medical Board.

 

Financial and Reputational Repercussions

The courts are increasingly willing to award substantial damages to deter the mistreatment of vulnerable employees.

• Compensation for Cruel Treatment: In the AWW v CBK case, the court awarded 12 months’ salary (Kshs. 1,008,000.00) as compensation for the cruel treatment the employee suffered when her livelihood was stripped away.
• Damages for Discrimination: The court in the AWW v CBK case additionally awarded Kshs. 4,000,000.00 in general damages specifically for discrimination on the account of a mental disability.
• Constitutional Violations: In KDF v Etyang, the ELRC awarded a global figure in compensatory damages amounting to Kshs. 30,000,000.00 (although it was revised down on Appeal to Kshs. 25,000,000 by the Court of Appeal (CoA). This award was deemed appropriate to address the gross violations of the employee’s constitutional rights and the significant impact on his health, dignity and livelihood. The court emphasised that the unlawful discharge, failure to provide adequate medical care and the cruel and degrading treatment the Respondent endured warranted such substantial monetary compensation.

 

Road To the Supreme Court

The KDF v Etyang case does not end at the CoA. In a ruling delivered on 30 January 2026 (Civil Application E128 of 2025), the CoA granted the Chief of Kenya Defence Forces and the Attorney General an enlargement of time to file a notice of appeal to the Supreme Court. That ruling, delivered by Kimaru JA, sets the stage for what may become a landmark pronouncement by Kenya’s apex court on the constitutional dimensions of mental health in the employment context. At this point, whether the intended appeal raises matters of general public importance sufficient for certification will be determined by the full bench of the CoA. The matter is now on a trajectory that could deliver Kenya’s first Supreme Court pronouncement on the employer’s duty to accommodate employees with mental illness. Nonetheless, in allowing the application, the CoA implicitly acknowledged that a prima facie case for constitutional significance exists.

 

Practical Implications for Employers

In our assessment, read together, the decisions discussed above establish a clear framework that all employers — public or private, should observe when managing employees whose mental health is in question:

 

• Pre-Disciplinary Assessment: An employer who becomes aware of an employee’s mental health condition must, before initiating or proceeding with disciplinary action, obtain medical evidence from a duly qualified and certified medical practitioner on whether the employee has the mental capacity to meaningfully participate in those proceedings. Proceeding without this assessment renders any resulting process and outcome liable to be set aside.
• Alternatives to Dismissal: The burden falls on the employer to explore, document, and exhaust every reasonable option short of termination, adjusted duties, extended sick leave, phased return-to-work arrangements, or redeployment. Only after demonstrating that no reasonable accommodation is workable can an employer proceed to set in motion the lawful process of termination of the employee from employment.
• Reasonable Accommodation: sections 5 and 44(4) of Cap. 266, read with section 15 of Act No. 4 of 2025, and Article 27 of the Constitution, impose a positive duty on employers to accommodate employees with disabilities, including mental illness. A failure to go beyond ordinary medical benefits to specifically tailor support to the employee’s condition will be treated as indirect discrimination.
• Documentation: Courts will scrutinise the employer’s conduct with considerable care. The absence of documented assessments, accommodation attempts, or medical referrals will count heavily against an employer and may expose it to significant damages, over and above ordinary termination awards.
• Uniformed Services Not Exempt: The KDF v Etyang judgment confirms that constitutional protections apply across all employment relationships, including military service. Operational culture and internal disciplinary frameworks do not displace the duty of care owed to service members whose health deteriorates in the course of duty.

 

Conclusion

Workplace practices that ignore the realities of mental health now carry significant legal and financial risks. These recent decisions make clear that employers must move beyond rigid disciplinary processes and adopt structured, compassionate support systems. Mental illness is neither misconduct nor a convenient basis for termination; it triggers a duty—not a discretion—to assess an employee’s capacity, provide support, and meaningfully explore reasonable accommodation before any adverse action is taken.

Employers who rely solely on show-cause letters and disciplinary hearings in response to mental ill-health expose themselves to potential risks. The consequences extend beyond financial liability, reflecting judicial findings that an employee’s dignity and constitutional rights have been infringed. Accordingly, organisations should re-look and review their internal policies, equip Human Resource practitioners and managers with a clear understanding of the “duty to accommodate” and implement practical protocols for handling mental health challenges in the workplace.

For now, pending the Supreme Court’s determination of the KDF v Etyang case, the position established by the ELRC and affirmed by the CoA remains intact; dismissal on grounds linked to mental ill-health, without proper capacity assessment and genuine efforts at accommodation, is unlawful and borders on indirect discrimination. The trajectory of the KDF v Etyang litigation, from the ELRC to the CoA and now towards the Supreme Court, underscores the seriousness with which the judiciary views this issue as a matter of public interest and serves as a clear red light to employers to act proactively rather than belatedly.

Mental health in the workplace is no longer a peripheral issue in employment law. Courts are increasingly examining how employers respond to employees facing psychological challenges, particularly where disciplinary action is involved. A recent decision of the Employment and Labour Relations Court (ELRC) highlights a key principle: compliance with procedure alone is not enough,employers must ensure substantive fairness where mental health is concerned.

In AWW (Suing as Next Friend and Mother of GWW) v Central Bank of Kenya [2024] KEELRC 13585 (KLR), the Court considered whether an employer acted lawfully in terminating an employee with a known mental illness following a disciplinary process. The decision underscores the growing expectation that employers must go beyond formal compliance and actively accommodate vulnerable employees.

 

Background of the Case

The claimant filed the suit on behalf of her daughter, who had been employed by the respondent since 2009. During her employment, the employee developed mental health conditions, including bipolar mood disorder and schizoaffective disorder. These conditions were documented and known to the employer.

Over time, the employee began experiencing workplace challenges, particularly absenteeism linked to her condition. The employer initiated disciplinary proceedings, issued notices to show cause and convened a disciplinary hearing. In 2020, her employment was terminated on grounds of gross misconduct.

The claimant argued that the termination was unfair and discriminatory, stating that the employer failed to consider the employee’s mental condition, did not provide reasonable accommodation and subjected her to a process she could not meaningfully participate in.

 

What the Law Provides on Fair Termination and Disability

Kenyan law requires both procedural and substantive fairness in termination. Section 41 of the Employment Act mandates that an employee be given a fair hearing, including an opportunity to respond to allegations.

Additionally, Article 27 of the Constitution guarantees equality and freedom from discrimination, while section 5 of the Employment Act prohibits discrimination in employment.

Together, these provisions impose a duty on employers not only to follow due process but also to take into account the specific circumstances of employees, particularly where disability is involved.

 

What Happened in Practice

The employer maintained that it had supported the employee through medical care and counselling and that it followed due process in terminating her employment. It argued that the employee had moments of lucidity and was therefore capable of participating in the disciplinary process.

However, the Court identified a critical gap. While a disciplinary process was conducted, there was no medical evidence confirming that the employee was mentally fit to understand or respond to the allegations at the time.

The Court emphasized that a fair hearing must be meaningful. It is not enough to issue notices and conduct a hearing; the employee must be in a position to comprehend and defend themselves. Subjecting a mentally unwell employee to such a process without confirming their capacity rendered the process unfair.

 

Reasonable Accommodation: A Legal Duty

A central issue in the case was whether the employer fulfilled its obligation to provide reasonable accommodation. While the employer facilitated medical treatment, the Court found that this did not go far enough.

Reasonable accommodation requires practical workplace adjustments, such as modifying duties, reducing workload or transferring the employee to a less stressful role. Evidence showed that the employee’s condition may have been worsened by her work environment, yet no meaningful adjustments were made.

The Court reiterated that employers must investigate the extent of an employee’s incapacity and explore alternatives to dismissal. Failure to do so may amount to discrimination.

 

The Court’s Determination

The Court held that the termination was both unfair and discriminatory. It found that:

• The disciplinary process was flawed due to the employee’s mental incapacity;
• The employer failed to provide reasonable accommodation; and
• The employee was treated in a discriminatory manner due to her mental condition.

The Court awarded compensation equivalent to 12 months’ salary for unfair termination and Kshs 4,000,000 as damages for discrimination, totaling Kshs 5,008,000 plus costs and interest.

 

Implications for Employers

This decision reinforces that mental health must be treated as a serious workplace issue with legal consequences. Employers must ensure that disciplinary processes are not only procedurally correct but also fair in substance.

Where an employee’s mental capacity is in question, employers must assess their ability to participate in proceedings and consider adjustments. Additionally, the duty to accommodate requires proactive steps to adapt the work environment to the employee’s condition.

Failure to meet these obligations may expose employers to liability for both unfair termination and discrimination.

 

Conclusion

This case highlights a shift in employment law towards a more nuanced understanding of fairness. Employers are required to move beyond rigid procedures and adopt a more responsive approach where mental health is concerned.

Ultimately, true compliance lies not just in following the law, but in applying it in a manner that protects the dignity and rights of all employees, particularly those who are most vulnerable.

The 2026 Labour Day celebrations in Kenya focused on the dignity of labour and the promotion of decent work for all workers, including the right to fair wages and safe working environments.

Therefore, the right to fair labour practices forms a foundational pillar in promoting fairness and harmony within the Kenyan workplace. Article 41 of the Constitution of Kenya guarantees every worker the right to fair labour practices, including the right to form, join and participate in the activities of a trade union. This constitutional right is operationalized through the provisions of the Labour Relations Act, Chapter 233 of the Laws of Kenya (“the Act”), which provides the legal framework governing trade unions, employers, collective bargaining, and dispute resolution mechanisms.

Part VII of the Act is particularly key in regulating the relationship between employers and trade unions. Sections 54 to 57 of the Act govern four (4) key aspects of labour relations: recognition of trade unions, election of union representatives, access to the employer’s premises, and collective bargaining agreements. Collectively, these provisions promote labour relations while balancing the rights and interests of both employers and employees.

Below, we highlight a few decisions by the Employment and Labour Relations Court (ELRC) that have brought into focus the application of the above-highlighted provisions of the Act.

 

1) Recognition of Trade Unions under Section 54 of the Act

Section 54 establishes the legal threshold for recognition of a trade union by an employer for purposes of collective bargaining. An employer is obligated to recognize a trade union for the purposes of collective bargaining if that trade union represents the simple majority of unionisable employees.

 

In Kenya Plantation and Agricultural Workers Union v Carnation Plants Limited [2013] KEELRC 534 (KLR), the Court observed that recognition grants a trade union the authority to negotiate terms and conditions of employment on behalf of employees within the bargaining unit. The Court further emphasized that recognition without collective bargaining would render Section 54 meaningless.

In Kenya Tertiary and Schools Workers Union (KETASWU) v Teachers Trainers College Councils, Kaimosi TTC [2019] KEELRC 2115 (KLR), the Court reaffirmed that the statutory threshold under Section 54 is satisfied once a union demonstrates membership exceeding 50 percent plus one. The constitutionality of the recognition threshold itself was addressed in Kenya Union of Commercial, Food and Allied Workers v Attorney General & another; Central Organization of Trade Unions (Interested Party) [2021] KEELRC 1902 (KLR), where the ELRC upheld the requirement as reasonable and proportionate. According to the Court, the threshold promotes orderly bargaining and minimizes fragmentation of representation within the workplace.

 

2) Trade Union Representation and Workplace Democracy under Section 55 of the Act

Section 55 of the Act provides that recognition agreements ought to provide for the election of trade union representatives amongst the union members in the workplace. These representatives, commonly referred to as shop stewards, play an important role in communication between employees, employers and the trade union.

The functions of the trade union representatives are limited in the Act to (a) represent members in grievance and disciplinary hearings at the workplace; and (b) perform any other functions specified in the recognition agreement or constitution of the trade union. This provision enhances employee participation and ensures that employees are not left vulnerable during disciplinary proceedings. Trade union representatives also facilitate the resolution of grievances at an early stage before they escalate into unrest.

The election of representatives by employees reinforces democratic participation within trade unions, such that employees are represented by individuals who understand their needs and grievances within the workplace.

 

3) Trade Union Access to Employer Premises under Section 56 of the Act

Effective union representation cannot occur in isolation from employees and therefore the Act requires that employers grant trade unions reasonable access to the employer’s premises to pursue lawful activities of the trade union, including but not limited to: (a) recruiting members for the trade union; (b) holding meetings with members of the trade union and other employees outside working hours; (c) representing members of the trade union in dealings with the employer; and (d) conducting ballots in accordance with the Constitution of the trade union.

The Act strikes a balance between the employer’s rights and the operational efficiency of the trade union. While the trade unions ought to be granted access, the Act allows the employer the power to impose reasonable conditions as to the time and place of the rights granted to the trade union. This assists in avoiding disruption of operations in the employer’s organization as well as acting in the interest of safety for all.

The ELRC has provided guidance on what constitutes “reasonable access” under Section 56 of the Act. In Banking Insurance and Finance Union v APA Insurance Company Limited [2025] KEELRC 2714 (KLR), the Court held that requiring a trade union to pay for the venue as a condition for accessing employees imposed an unreasonable burden on the trade union. The court emphasized that reasonable access must balance the trade unions’ rights to organize with the employer’s right to manage its operations without undue disruption.

Further, Courts have equally recognized that employer restrictions may be justified where they are reasonable and operationally necessary. In Kenya Scientific Research International Technical and Institutions Workers Union v Thermopark Limited [2023] KEELRC 1780 (KLR), the Court ordered that recruitment activities be conducted outside official working hours or in a manner that would not interfere with the employer’s operations.

Similarly, in Kenya Private Universities Workers Union v Islamic University of Kenya [2025] KEELRC 252 (KLR), the Court upheld the employer’s requirement that a trade union official should provide proof of identity and credentials before being granted access to the employer’s premises.

 

4) Collective Bargaining Agreements under Section 57 of the Act

Section 57 of the Act requires that employers who have recognized trade unions conclude Collective Bargaining Agreements (CBAs) with the recognized trade union, setting the terms and conditions of employment.

To facilitate meaningful negotiations, the Act requires employers to disclose relevant information necessary for collective bargaining. It follows that adequate disclosure of information ensures that trade unions negotiate from an informed position, hence promoting fairness in the bargaining process. The Act protects confidentiality at the time of disclosure of information by prohibiting the disclosure of privileged information.

The scope of disclosure obligations was considered in Kenya Engineering Workers Union v Bhachu Industries Limited [2023] KEELRC 1851 (KLR), where the Court held that an employer claiming confidentiality must specifically demonstrate why the information sought is privileged. The Court found that mere assertions of confidentiality without justification were insufficient.

 

Conclusion

The Act establishes a comprehensive framework governing collective labour relations in Kenya. The Courts have demonstrated that recognition and collective bargaining are not merely procedural requirements, but essential components of meaningful labour relations. As the country works towards building a better future for all workers, labour relations continue to evolve in the workplace, and as such, in order for employers to provide a decent and dignified work environment for their employees, they must remain alive to their statutory obligations under the Act and the law in general.