Kenya - Minimum Wages - 2011

Employment Act 2007, Kenya Gazette Supplement No. 107 (Acts No. 11) Nairobi 26 October 2007 pp357-436

Labour Institutions Act 2007

Regulation of Wages (Agricultural Industry) and (General) (Amendment) Order 2010, Kenya Subsidiary Legislation 2010, Legal Notice No. 98, pp421-426, effective from 1 May 2010

Regulation of Wages (General) Order 1982, Kenya Subsidiary Legislation 1982, Legal Notice No. 120, pp329-341, effective from 1 August 1982

Employee means a person employed for wages or a salary and includes an apprentice and indentured learner.

Employer means any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company.

Remuneration means the total value of all payments in money or in kind, made or owing to an employee arising from the employment of that employee.

The Labour Institutions Act 2007 defines ’statutory minimum remuneration’ to mean the minimum remuneration prescribed in a wages order.

For the purposes of that Act, remuneration is defined as the amount paid or to be paid in cash to the employee by his employer clear of any deductions, except any deductions lawfull made:
(a) for the purposes of a contribution to any provident fund or superannuation scheme;
(b) in respect of rations supplied by an employer which the employer is permitted to make under a wages order;
(c) under any provision of any other written law for the time being in force which provides for or permits deductions to be made from an employee’s wages by the employer;
(d) at the request in writing of the employee, for any purpose in which the employer has no direct or indirect beneficial interest.

Minimum wages are set by Ministerial order, following recommendation by a tripartite council and public consultation.

Upon receiving a recommendation from a wages council on minimum wages, but before publishing a wages order in the Gazette, the Minister shall publish a notice specifying that the Minister proposes to make a wages order and inviting comments on the draft order. Any person may submit written comments on a draft wages order within the period specified in the notice. If no objections are received, the order may be published. If objections are received, these shall be referred to the wages council and the Minister may request the National Labour Board to consider and advise on the objections.

After considering any further report of the wages council and any further advice from the National Labour Board, the Minister may publish a wages order in the Gazette. The order is to be laid before the National Assembly within 21 days of publication.

The required contents of a wages order are set out in §47 of the Labour Insitutions Act 2007.

The Minister shall establish a general wages council and an agricultural wages council, and may establish sectoral wages councils. Each wages council shall consist of a chairperson, not more than 3 trade union representatives, not more than 3 employer representatives and not more than 3 independent members.

The functions of the wages councils are to investigate, invite and consider representations from interested parties and make recommendations to the Minister on minimum wage remuneration and conditions of employment. In the performance of its functions, a wages council may question any person who may be able to provide information relevant to the investigation, require any person to provide any relevant information, book, document or object or conduct public hearings.

The matters to be taken into consideration by the wages council are set out in §44(5) of the Labour Institutions Act 2007.

A wages council shall take into consideration the needs of employees and their families.

A wages council shall take into consideration the cost of living.

A wages council shall take into consideration the level of wages in the country in considering the needs of employees and their families.

A wages council shall take account of social security benefits in considering the needs of employees and their families.

A wages council shall take into consideration economic factors, including the requirements of economic development.

A wages council shall take into consideration economic factors, including levels of productivity.

A wages council shall take into consideration economic factors, including the desirability of attaining and maintaining a high level of employment, and the likely impact of any proposed conditions on current employment or the creation of employment.

A wages council will take into consideration the ability of employers to carry on their business successfully.

A wages council shall take into consideration:
(i) the minimum subsistence level;
(ii) the alleviation of poverty;
(iii) the operation of small, medium and micro enterprises;
(iv) the need to encourage investment;
(v) the relative living standards of other social groups; and
(vi) any other relevant factor.

The occupational and geographical scope of the minimum wage requirements are set out in the Schedules to the Regulation of Wages (General) (Amendment) Order 2010, which amends the Regulation of Wages (General) Order 1982, and the of Wages (Agricultural Industry) (Amendment) Order 2010.

Minimum wages vary by occupation and location.

See the Regulations of Wages (Agricultural Industry) and (General) (Amendment) Orders 2010

See the Regulations of Wages (Agricultural Industry) and (General) (Amendment) Orders 2010

An employee on a monthly contract who is not provided with free housing accommodation by his employer shall, in addition to the basic minimum wage prescribed in the Schedules to the Regulation of Wages (General) Order (as amended), be paid housing allowance equal to 15% of his basic minimum wage.

The level of minimum wage rates are set by way of amendment to the Schedule of the Regulation of Wages Order.

Minimum wages vary by occupation and location and are expressed in monthly, daily and hourly rates.

The minimum wage rates for general labourers are provided by way of example:
(a) in Nairobi, Mombasa and Kisumu cities - 7,430KSh/month, 324.40KSh/day and 60.25KSh/hr;
(b) in municipalities and Mavoko, Ruiru and Limuru Town Councils - 6,221KSh/month, 298.15KSh/day and 55.10KSh/hr; and
(c) in all other areas - 3,397KSh/month, 182.35KSh/day and 33.74KSh/hr.

28 May 2010, with effect from 1 May 2010

If, in a contract of service or collective agreement, provision is made for the payment of any allowance in kind to an employee with the employees consent the payment may with such consent be made only if the allowance is for the personal use and benefit of the employee and does not consist of or include any intoxicating spirit or noxious drug.

The rate of payment requirements vary according to the terms of the employee’s employment.

Minimum wages are expressed in monthly, daily and hourly rates.

Casual employees shall be paid at the end of the day.

Employees employed to perform task work shall be entitled, at the option of his employer, to be paid at the end of the day in proportion to the amount of the task which has been performed, or to complete the task on the following day, in which case he shall be entitled to be paid on completion of the task.

The following types of workers shall be paid monthly:
(a) piece-rate workers, in proportion to the amount of work which he has performed during the month;
(b) employees employed for a period exceeding one month; and
(c) employees employed for an indefinite period or on a journey.

Workers employed for a period of more than a day, but not exceeding one month, shall be paid at the end of that period.

Subject to other provisions of the Employment Act 2007, an employer shall pay the entire amount of the wages earned by or payable to an employee in respect of work done by the employee in pursuance of a contract of service directly, in the currency of Kenya:
(a) in cash;
(b) into an account designated by the employee;
(c) by cheque, postal order or money order in favour of the employee; or
(d) in the absence of an employee, to a person other than the employee, if the person is duly authorised by the employee in writing to receive the wages on the employee’s behalf.

An employer shall pay wages to an employee on a working day, and during working hours, at or near to the place of employment or at such other place as may be agreed between the employer and the employee, but shall not be paid in a place where intoxicating liquor is sold or readily available (except for employees employed to work in that place).

The frequency of adjustment is not statutorily prescribed.

A labour officer may institute proceedings in respect of any contravention of any provision of the Labour Institutions Act or for any offence committed by an employer under the Labour Institutions Act or any other labour law.

An employee may file a complaint under Part IV of the Employment Act (Protection of Wages) to a labour officer not later than 3 years after the allegedly unlawful deduction has been made.

A labour officer may enter any premises or place where persons are or may be employed for the purpose of performing his duties as specified under this Act or any other labour law. A labour officer may, for the purpose of monitoring or enforcing compliance with any labour law:
(i) require the production of wage sheets or other employment records;
(ii) require workers to give information regarding other workers and payments to be made for work;
(iii) inspect and copy any material part of any list of outworkers or persons giving out work to outworkers;
(iv) examine any person whom the officer has reason to believe is or was an employee and to whom a wages order applies or applied (subject to the right against self-incrimination);
(v) enter, inspect and examine any land or building to determine whether the labour laws are being complied with;
(vi) require an employer to produce an employee and a document relating to the employment of any employee, and may require the employee to produce any document relating to his or her employment;
(vii) examine and make copies of a regiser, record, book or other document relating or appearing to relate to employment and seize any such document which he has reasonable ground to believe to be or contain evidence of an offence under the labour laws.

A contravention of any Part IV of the Employment Act is an offence, punishable by a fine not exceeding 100,000 shillings.

Imprisonment for a term not exceeding 2 years.