The Salient Features of the Employment Act, 2007

The Salient Features of the Employment Act, 2007
The Employment Act, 2007 (also known as the Chapter 226 of the Laws of Kenya) repealed the former Employment Act and the Regulation of Wages and Conditions of Employment Act Chapter 229 of the Laws of Kenya.
This Act, whose commencement date was 2nd June, 2008, provides for general terms and conditions of employment in Kenya and applies to both domestic and foreign contracts of employment.
The following are the main features of the Employment Act, 2007.
1.                Section 5 (3) of the Act  provides that  no employer shall discriminate, directly or indirectly, against any employee or prospective employee or harass an employee or prospective employee on the ground of race, colour, race, language, religion, political or other opinion, nationality, ethnic or social origin, disability, pregnancy, mental or HIV status or in respect of recruitment, training, promotion, terms and conditions of employment, termination of employment or other matter  arising out of the employment. Further, subsection (4) thereof provides that an employer shall pay his employees equal remuneration for work of equal value.  It should be noted that any employer who violates this provision may be prosecuted for a criminal offence under subsection (5) thereof.
2.                Section 6 of the Act outlaws all forms of sexual harassment at places of works. This provision require every employer to take steps to ensure that no employee is subjected to sexual harassment of any form and take disciplinary measures as deemed appropriate against any of his employees who subjects another employee to sexual harassment.  Further, under subsection (2) thereof, an employer who employs twenty (20) or more employees should in consultation with the employees or their representatives, if any, issue a policy statement on sexual harassment, which shall be brought to the attention of every person under the employer’s direction.
3.                Section 7 of the Employment Act provides that “no person shall be employed under a contract of services except in accordance with the provisions of the Act”. Section 8 goes ahead to provide that the provisions of the Employment Act apply to both oral and written contracts of employment..
4.                Under section 9 of the Act, a contract of service (a) for a period or a number of working days which amount in aggregate to the equivalent of three (3) months or more, or which provides for the performance of any specified work which cannot reasonably be expected to be completed within a period or a number of working days amounting in aggregate to the equivalent of three (3) months; must be writing.
5.                Under the aforesaid section, it is obligation and duty of the employer to have the contract of employment prepared in accordance with the provisions of the law and ensure that the same is signed the employee.
6.                Under section 10(1) of the Employment Act, a written contract of service specified under clause 9 above, shall state the particulars of employment, which may, subject to section 10(3) of the Act,  be given in instalments and in any event not less than two (2) months after the beginning of employment.  Under subsection (2) of thereof, a  written contract of service  shall contain the following particulars or details:
(a)                the name, age, permanent address and sex of the employee;
(b)               the name of the employer;
(c)                job description of the employment;
(d)               the date of commencement of the employment;
(e)                form and duration of the contract;
(f)                 the place of work;
(g)               the hours of work;
(h)               remuneration scale or rate of employment, the method of calculation of that remuneration and details of any other benefit;
(i)                 date on which employee’s period of continuous employment began, taking into account any employment with a previous employer which counts toward that period; and
(j)                 any other prescribed matter.
Please not that under section 10(5), where any of the matters highlighted above changes, the employer shall in consultation with the employee, revise the contract to reflect such changes and notify the employee of the change in writing.
Further, under section 10(6) of the Act, the employer shall be required to keep records of the above particularly for a period of at least 5 years after the termination of employment.
If not contained in the contract of service, the employer shall also be required to prepare a statement containing the following particulars which can be incorporated into the contract of service by reference:-
(a)                any terms and conditions of employment relating to any of the following:
(i)                 entitlement to annual leave, including public holidays and holiday pay;
(ii)              incapacity to work due to sickness or injury including any provisions of sick pay; and
(iii)            pension and pension schemes;
(b)               the length of notice which an employee is obliged to give and entitled to receive to terminate his contract of employment;
(c)                where employment is not intended to be for an indefinite period, the period for which it is expected to continue or; if it is a fixed term, the date when it will end;
(d)               the place of work or, where the employee is required or permitted to work at various places of work, an indication of that place of work and address of the employer; and
(e)                disciplinary rules and disciplinary procedure.
5.                Please note that under section 13 of the Employment Act, if, after the material date there is a change in any of the particulars under sections 10 and 12 of the Act, the employer shall give to the employer a written particular of changes at least one (1)  month after the changes. Under section 16 of the Employment Act, where an employer does not give an employee a statement as required under sections 10, 12 and 13 aforesaid, or an itemised pay statement required under section 20 of the Act, the employee may file a complaint with the labour officer.
6.                Under section 15 of the Employment Act, an employer shall display a statement in the prescribed form of the employee’s rights under the Act in a conspicuous place, which is accessible to all employees.
7.                Under section 17 (6) of the Act, if any employer advances to an employee a loan in  excess of the amount of one (1) month’s his wages, or in case of an employee with written contract, two (2) months’ wages,  the excess shall not be recoverable in a court of law.  This section therefore implies that if an employer advances any loan to an employee, the employers shall be obliged to take a separate security from the employee to secure the repayment.
8.                Under section 20 of the Act , an employer shall be required to give every employee (except a casual employee or an employee engaged on piece rate or task rate terms of any period not exceeding 6 months) an itemised pay statement either at or before the time of payment of the salaries and wages.  At the minimum, such statement should contain the following particulars:-
(a)    the gross amount of the wages or salary of the employee
(b)   itemised statutory deductions; and
(c)    net pay
9.                An employer who is not incorporated or resident in Kenya may be required by the Minister to pay bond assessed at the equivalent of one month’s wage of all the employees employed or to be employed by such employer.
10.            The annual leave is twenty one (21) days with full pay after every twelve (12)  consecutive months of service . Where employment is terminated after the completion of two (2) or more consecutive months of service, the employee is entitled to one and three-quarter (1 ¾ ) days of leave with full pay in respect of each completed month of service.
11.            The Employment Act states that every employee shall be entitled to one (1) day of rest for every week of service.
12.            Under section 30 of the Employment Act, after two (2) consecutive months of service with his employer, an employee shall be entitled to sick leave of not less than seven (7) days with full pay and thereafter to sick leave of seven (7)  days with half pay, in each period of twelve (12)  consecutive month of service, subject to the production by the employee of a certificate of incapacity to worked signed by a duly certified medical practitioner.
13.            Under section 29 of the Employment Act, women employees are entitled to three (3) months maternity leave with full pay besides the normal annual leave aforesaid. On the other hand, male employees are entitled to two (2) weeks paternity leave.
14.            House allowance should be given to an employee unless where gross salary is stated to be inclusive of house allowance (section 31 the Employment Act).
15.            Under section 34 of the Act, an employer is under an obligation to provide medical treatment to his employees during time of service and if possible medical attendance during serious illness. As a result provision, the employer should take up a medical insurance scheme for the benefit of his employees. Further, under Work Injury Benefits Act, the employer is obligated to pay compensation to an employee who has sustained personal injury or death as a result of accidents sustained either out of or in the course of employment.  Again, an employer can take out a workmen’s compensation insurance to meet such claims.
16.            Under section 42 of the Employment Act, 2007, probationary period for a new hiring or employee should not exceed six (6) month.   A probationary contract of employment can be terminated by a seven (7) days’ written notice by either party.
17.            Under section 43 of the Employment Act, in any claim arising from termination of a contract of employment, the employer must prove reason or reasons for the termination of employment.  If he fails to do so, he shall be deemed to have terminated the employee unfairly.
18.            The Employment Act provides for quite elaborate dismissal, termination, redundancy, and complaint procedures. Therefore, where an employer intend to terminate an employee it would be advisable to approach a lawyer for detailed advice.
19.            Under the Employment Act, employers are required keep and maintain records of their employees including records of disciplinary actions taken against such employees. Such records should provide for the particulars specified in section 74 of the Act.
20.            Under section 76 of the Employment Act, every  employer who employs twenty five ( 25)  or more employee is require to comply with the provisions of Part X of the Act. Under subsection (2) thereof, such employer must notify the Director of Employment of every vacancy occurring in this establishment, business or work place in the prescribed form.  The employer is also required to notify the Director of every recruitment, abolition of posts, termination or lay-off of employees within two (2) weeks from their taking effect.  Such an employer must also maintain a register of all his employees in every calendar year and send this to the Director not later than 31st January of the following year.
21.            Under section 83 of the Act, a foreign contract of service must be in the prescribed form, and must be signed by both parties and attested by a labour officer.
22.            Under section 90 of the of the Employment Act, no civil action or proceedings based or arising out of the Act or a contract of service in generally shall lie unless it is commenced within three (3) years next after the act, neglect, or default complained of or the case of continued injury or damage, within twelve (12) months next after cessation thereof.
23.            Under the Act, all labour and employment related disputes shall be handled exclusively by the newly established Industrial Court, which is established under the Labour Institutions Act, 2007.

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CAN PARTIES CONTRACT OUT OF SPECIFIC PERFORMANCE. LEGAL OPINION ON SPECIFIC PERFORMANCE ISSUE(S) Is it legally possible for parties to contract out of specific performance? THE LAW Specific performance is an order of the court requiring the defendant to carry out his obligations under an instrument (contract) according to its terms. It is a discretionary remedy. Specific performance as a general rule is granted where the common law remedy of damages is inadequate. If damages will put the plaintiff in the position where he would have been in had the instrument/contract been performed, equity will not intervene and thus specific performance will not be granted. There are however instances where the court will decline to grant specific performance even though the damages awardable are inadequate. Here the court will be taking into account special circumstances surrounding a case, inter alia, the conduct of the plaintiff that may disentitle him to the remedy of specific performance. This is the discretionary nature of equitable remedies. Much as the court has that leeway, it is notable however that discretion shall only be exercised under well settled principles. Further and as a general rule the award of specific performance is available only to parties to a contract; those who can be sued or sue for specific performance. However the exception is if it is shown that a third party involved in the transaction is not a bona fide purchaser for value without notice, that is, he has contributed to the breach by one party, in which case he can be enjoined as a party in such proceedings. Specific performance is granted for enforcement of positive contractual obligations. The party in breach of the obligations imposed on him by a contract will be ordered to take positive steps to remedy a wrong or to do something that he has failed to do. It follows therefore that matters for specific performance must be heard and determined before specific performance is granted. CONTRACTS THAT ARE SPECIFICALLY ENFORCEABLE. Contracts related to land. It is admitted in equity that damages will be inadequate compensation to a purchaser, mortgagee, charge etc when the subject matter of dispute is land. The uniqueness of land places it at a privileged position and thus any contract as long as it relates to land is specifically enforceable. Contracts related to personality/chattels of unique value are specifically enforceable. It must be shown that the chattel is a rare commodity or of unusual beauty and that damages will be inadequate as compensation. If the article/chattel is an ordinary article of commerce, then specific performance will not be ordered. Contract to pay money to a third party will ordinarily attract the award of specific performance. In such circumstances the discretion of the court is checked. Contract to secure loan and money is lent before mortgagor executes the mortgage deeds calls for specific performance. In a situation like this the mortgagee can obtain an order of the court ordering the mortgagor to execute the instrument. Usually the banks will rely on the loan agreement as there is a clause in the loan agreement that the mortgagor when called upon to do so by the mortgagee shall sign the mortgage. Default therefore on the part of the mortgagor cannot be countenanced and specific performance will be ordered as against him. Where a contract is with a company to take up and pay for debentures, the contract may be specifically enforceable . CONTRACTS THAT ARE NOT SPECIFICALLY ENFORCEABLE. A contract requiring constant supervision is not specifically enforceable. The rationale is that equity does not act in vain and accordingly the court will be reluctant to grant specific performance if the contract requires constant supervision; the court may find it difficult to ensure that the contract is supervised. The limbs of contracts falling under this category are contracts for building. As a general rule specific performance will not be granted in respect of a contract to build or repair. However the courts have developed in-roads into this general rule where three basic conditions are met : firstly, the building plan must be sufficiently defined by the contract (by providing detailed building plans) and the builder must have provided everything; secondly, the plaintiff must have substantial interest in the performance of the contract such that damages would not compensate him for the defendant’s failure to build; thirdly, the defendant must be in possession of the land so that the Plaintiff cannot employ another person to build without committing a trespass. Contracts involving personal skill are not specifically enforceable. The rationale is that the court will be unwilling to decide subsequently applications that the contract has not been properly performed. These contracts involve personal service and once an employee has fallen out of favour of his employer, it will be impracticable to grant specific performance since that will amount to forcing a person to remain in the relationship of employer-employee when there is an indication that they no longer want to continue with the relationship . Contracts lacking mutuality. The rule is that where specific performance is available to one party, it must be available to the other party. The remedy must be available to both the seller and the buyer and either party can sue or be sued under contract. therefore, specific performance cannot be ordered against a person lacking capacity because of lack of mutuality. However, there are certain contracts that may be specifically enforced in part (part-performance). If there exists matters that can be isolated from the contract (severance of contract), then they can be severed and enforced specifically. Even so, if those matters are actually dependent on one another, then severance is not possible and consequently the contract cannot be enforced in part. If in the contract, certain matters may be legal while others are illegal, so long as they are not dependent, they can be severed and the legal matters specifically enforced. Agreements without consideration An agreement where one party has not provided consideration will not be specifically performed. This is because equity will only come to the aid of a bona fide purchaser for value without notice as opposed to a volunteer. OTHER FACTORS TO CONSIDER BEFORE GRANT OF THE EQUITABLE REMEDY OF SPECIFIC PERFORMANCE/ DEFENCES. a) Hardship. It is not mere inconvenience but hardship that amounts on injustice . The hardship could either be to the plaintiff, the defendant or to a third party. Worth to note that financial inability to complete the contract as hardship is insufficient for one to escape specific performance. b) Where there is no effective contract—prerequisites of contract have not been met. c) The absence of writing for land transactions—section 3 (3) of Law of Contract Act is echoed here. d) Where the plaintiff is guilty of some conduct that would disentitle him from getting the remedy of specific performance. e) Fundamental mistake. If the mistake is of such a nature that it precludes the consensus ad idem, it will be sufficient rationale to ground refusal of specific performance to a deserving party. Specific performance will still be unavailable whether caused solely by the defendant or not or whether in any way induced by the plaintiff if granting specific performance will occasion hardship amounting to injustice. f) Misrepresentation may also remove the remedy of specific performance from the ambit of the party affected, so does misdescription. g) Laches. Should a party be guilty of laches by sleeping on his rights, the courts may most likely be unready to grant specific performance. h) Illegality. If performance of a contract will occasion or lead to a perpetuation of an illegality, the courts will not order for specific performance. i) Defective title. If the title sought to be conveyed/transferred is defective, the courts may not order for specific performance. APPLICATION OF THE LEGAL PRINCIPLES THE ISSUE IN POINT. In summary, the whole question will turn on one fundamental point, what is the nature of the contract the parties intend to enter into, is it one that is specifically enforceable or not. If the answer is in the negative, then the parties should examine whether the contract still falls under the territory of exceptions to the general rules. If not, specific performance will not pose any problem since the courts will not award it anyway. Put slightly differently, if the contract is generally unenforceable specifically but falls within the exceptions, the implication is that it is, in effect, enforceable and attracts specific performance as a remedy. If the answer to the prefacing question, that is whether the contract is specifically enforceable is in the affirmative, or if the contract falls within the exceptions to the generally unenforceable contracts, the parties may: a) Opt to give a provision for damages as sufficient compensation in lieu of specific performance in case of default of either party. My view is based on the fact that since the court shall be looking at all the surrounding circumstances, it is highly probable that it shall find specific performance as an inappropriate remedy in the face of definite provision for damages. Besides, courts give effect to contractual obligations as contained in an instrument; they don’t write contracts for the parties. b) Another way addressing the issue is by bringing the foregoing ‘defences to specific performance’ within the domain of the contract. The contract shall provide explicitly that ‘’specific performance may not be available to either party in case of …then enumerate the above defences”. c) Alternatively, include a provision in a paragraph dealing with breach of the obligations to the effect that….provided that it shall be a defence for a party in breach of the conditions/obligations to show that….then here enumerate the above points. It is also necessarily for the parties to bear in mind and interrogate issues of bargaining power vis a vis consumer protection especially under the evolving jurisprudence on consumer protection. CONCLUSION It is foreseeable that the court may frown at explicit provisions that bars specific performance especially where the parties do not have equal bargaining power and to the extent that the courts may feel that such provision is one-sided, doubts may arise as to how the courts will address this issue. Rather than going this uncharted paths, I would propose the adoption of the above alternatives.

TRADE MARK LAW IN KENYA

GROUNDS OF OPPOSITION TO THE REGISTRABILITY OF TRADE MARK

1. is the mark confusingly similar--visually, phonetically and conceptually (viewed as a whole)--the likelihood of confusion test and the semblance test?
2. is the trade mark well-known? resources expended in its promotion etc? knowness? geographical area of use of the trade mark (prior use/co-existence)
3. under what circumstances can two trade marks co-exist in the register?
4. what does the mark seek to achieve? distinctiveness and distinguishment role?
5. disclaimers
6. imperfect recollection, reasonable average shopper and impression created to his eyes, possibility of confusion arising out of oral communication and imperfect pronunciation.