1. Introduction
Employee leave entitlements in Kenya are a core component of fair labour practices, ensuring that employees have adequate time for rest, health and personal responsibilities without risking their employment. These rights are principally governed by the Employment Act, 2007 and the Regulation of Wages (General) Order, 1982 and its subsequent amendments, and interpreted through case law and jurisprudence set therein. Together, these sources establish minimum standards while allowing employers to implement more progressive policies.
2. Types of leave provided for:
The Employment Act sets out the statutory framework on leave. Section 28 provides for annual leave, Section 29 addresses maternity and paternity leave, Section 29 A provides for pre-adoptive leave and Section 30 governs sick leave. These provisions are mandatory minimums, and any contractual term that purports to reduce them is invalid. The Regulation of Wages Orders reinforces these standards by regulating working hours, rest days and public holidays across various sectors, thereby influencing how leave is administered in practice.
a. Annual leave
Annual leave remains the most fundamental entitlement. Under Section 28 of the Employment Act, an employee is entitled to at least twenty-one working days of paid leave after every twelve consecutive months of service. This leave accrues progressively and may be taken in instalments/at a pro-rated bases (of 1.75 leave days per month). The same has been replicated in Regulation 9 of the Regulation of Wages (General) Order.
Kenyan courts have consistently emphasized that employers must maintain proper leave records. See Charo v Shreeji Enterprises Limited (Appeal E254 of 2024) [2025] KEELRC 2684 (KLR) (2 October 2025) (Judgment)
Can leave days be forfeited? The Court of Appeal, in Bins (Nairobi) Services Limited v Hardard Macharia Kariamburi (Civil Appeal E670 of 2024) [2025] KECA 1726 (KLR) (24 October 2025) (Judgment) upheld the reasoning in Abongo v Chemelil Sugar Co Ltd [2023] KEELRC 2591 (KLR) where the court averred that leave days can only be carried forward only up to 18 months as per Section 28 (4) of the Employment Act. Any leave days falling outside the said period will be deemed forfeited. Employees are thus encouraged to take leave days, or where agreed upon, the employers may reimburse the leave days accrued and not taken.
b. Maternity and Paternity Leave.
These are expressly protected under section 29 of the Employment Act. Female employees are entitled to three months of fully paid maternity leave, while male employees are entitled to two weeks of paid paternity leave. See the case of Musau v World Vision Kenya (Cause E049 of 2023) [2024] KEELRC 79 (KLR) (31 January 2024) (Judgment) where the Claimant, a former employee, was granted one month for maternity leave as opposed to 3 months required under statute.
Employment security during maternity leave is strictly protected and no employer should dismiss an employee on account of pregnancy. Employees on maternity leave retain full contractual and statutory protections. The female employees should revert back to their original positions before the said leave.
How then does one apply for maternity leave?
i. Employee must notify the employer at least 7 days before the start of the said leave or other period as practicable;
ii. Provision of a medical certificate from the doctor or midwife;
iii. For male employees, a birth notification will suffice.
Employees are assured that their annual leave days remain unaffected and may be utilized during the maternity and paternity leave days.
c. Pre-adoptive leave.
Section 29A of the Employment Act provides for this leave. An employee, male or female, is entitled to one (1) month pre-adoptive leave with full pay where a child is placed in the continuous care and control of the said employee, from the date of placement of the child. The employee intending to take this leave must:
i. Notify the employer in writing of the intention of the adoption society to place the child in their custody at least fourteen (14) days before the placement of the child;
ii. Accompany the written notice with documentation evidencing the adoption society’s intention to place the child in the employee’s custody, including the custody agreement between the employee and the adoption society, as well as an exit certificate;
After the said leave, the employee is entitled to return to their previous role or equivalent position with similar terms.
d. Sick Leave
Sick leave is governed by Section 30 of the Employment Act, which entitles an employee, after two consecutive months of service to seven days of sick leave with full pay and seven days with half pay annually, subject to medical certification. Regulation 12 of the Regulation of Wages (General) Order provides for favourable conditions of 30 days with full pay and 15 days with half pay. Since the Regulation of Wages (General) Order has better terms, it is generally applied and preferred as determined by Linnet Ndolo LJ (as she then was) in Kennedy Nyanguncha Omanga v Bob Morgan Services Limited [2013] KEELRC 810 (KLR).
What are the obligations of parties in the grant of a sick leave:
i. An employee should inform the employer of any sicknesses that they deem to have as they seek medical attention and their absence from work;
ii. Once they have sought medical assistance, they must provide a certificate of incapacity signed by a qualified medical practitioner;
iii. The employee may also produce treatment notes to the employer, in case of need of modifications/reasonable accommodation;
iv. The employer reserves the right of independent assessment or a mutually agreed upon medical practitioner;
Failure to produce the certificate releases the employer from liability for non-payment. See the case of Ayub Kombe Ziro v Umoja Rubber Products Limited [2022] eKLR.
An employer should not dismiss an employee on account of ill health, and they should take all reasonable steps to ensure that the employee is reasonably accommodated. See the Supreme Court decision in Samuel Gitau Gichuru v Package Insurance Brokers [2021] eKLR and the ELRC decision in Kenya Plantation and Agricultural Workers Union v Rea Vipingo Plantations Limited & another [2015] eKLR.
Where an employee is unwell during an annual leave, the employee may inform the employer of the same and apply for sick leave Upon submission of a valid medical certificate, such leave shall be converted to sick leave.
Compassionate leave
Regulation 11 of the Regulation of Wages (General) Order provided for compassionate leave. Upon exhaustion of the compassionate leave, the employer may grant up to 5 unpaid compassionate leave days over and above those taken within the law and policies. Employers may require employees to provide proof of the said emergency (sickness, death etc) to justify absence. The same should be from an immediate relative/ family member such as siblings, parents, spouse or children. See the case of David Muguna v Board of Management Gibea Jerusalem Academy [2019] KEELRC 618 (KLR).
e. Other discretionary leave days
The Employment Act and the Regulation of Wages (General) Order have not provided for other leave days which the employer may grant to its employees such as:
i. Study leave: often granted to employees pursuing further education. Employers may offer it as paid or unpaid leave depending on organizational policy, particularly where the training benefits the employer. See Abdilie v County Government of Wajir & 4 others (Employment and Labour Relations Petition E152 of 2025) [2025] KEELRC 2709 (KLR) (2 October 2025) (Ruling).
In Nyambu v Kenya Kazi Services Ltd (Employment and Labour Relations Cause 389 of 2018) [2023] KEELRC 3357 (KLR) (18 December 2023) (Judgment), the Claimant agreed to ending contract to pursue study leave after which the employer would take her in, should a vacancy arise.
ii. Unpaid leave: is typically granted at the employer’s discretion. It allows employees to attend to personal matters beyond their paid leave entitlements. Although not regulated in detail under statute, it must be agreed upon by both parties and properly documented to avoid disputes.
iii. Garden Leave: arises mainly in termination or resignation contexts. It refers to a period during which an employee remains on the payroll but is not required to report to work, often to protect confidential information or business interests. Kenyan courts have generally upheld garden leave clauses where they are reasonable and contractually agreed, viewing them as part of lawful post-employment restrictions. See the case of EASTAFRICA PACKAGING INDUSTRIES LIMITED v ZOEB ALIBHAI [1997] KECA 101 (KLR)
iv. Compensatory day off: This is counted as leave days granted in lieu of working during weekends or public holidays. It is discretionary depending on the organization.
v. Mental health days: May be adopted by employers to ensure employees seek mental health assistance.
3. Best practice on leave days:
To ensure comprehensive leave management, employers should ensure the following:
i. Have comprehensive policies on leave management;
ii. Manage clear leave records both manually and electronically as required under section 74 of the Employment Act;
iii. Encouraging employees to take leave days, structurally (usually 14 days before the said leave days) and in case of emergencies, employees should notify their supervisors and HR;
iv. Have clear hand over notes during absence from work;
v. Ensure that carry-overs do not spill over to 18 months from the last leave date;
vi. Generating leave reports.
Judicial decisions continue to shape the interpretation of leave entitlements in Kenya. Courts consistently place the burden on employers to maintain accurate employment records, including leave documentation, as required under Section 74 of the Employment Act. They have also reinforced the principle that statutory rights cannot be waived or undermined by contract.
Employers are therefore required to not only comply with statutory minimums but also adopt fair and transparent leave policies. Failure to do so may result in legal claims for compensation, findings of unfair termination or constitutional violations. Progressive employers increasingly go beyond the law by introducing flexible leave arrangements, mental health days and inclusive parental leave policies. Employers should also take note of Section 26 of the Employment Act in that, where terms of the Law, Judgment, Collective Bargaining Agreement or contract are more favourable, the employer is obligated to apply the favourable terms.
4. Conclusion
In conclusion, leave entitlements in Kenya are firmly anchored in statute, reinforced by wage regulations and continuously developed through case law. While the Employment Act provides the baseline, judicial interpretation and evolving workplace practices have expanded the scope of employee protections. A comprehensive and well-implemented leave policy is therefore essential, not only for legal compliance but also for fostering a supportive and productive work environment.