A Comprehensive Guide to Annual Leave in Kenya: Entitlement, Accrual, Carrying Over, and Forfeiture

By Admin | May 27, 2022

This article aims to clarify Section 28 of the Employment Act of Kenya (“the Employment Act”), which grants employees the statutory right to annual leave.

In my previous role as in-house counsel, I found that many employees are unaware they are entitled to at least two (2) uninterrupted working weeks of leave. Have you experienced disapproval from your employer for taking extended leave?

Annual leave is a common source of dispute among employers, HR, and employees. These conflicts are evident in the numerous cases filed in the Employment and Labor Relations Court.

Article 41 (1) of the Constitution of Kenya, our supreme law, states that every person has the right to fair labor practices. This is crucial as employers typically have greater bargaining power than employees. Employees must have the ability to take time off from their work duties to rest. The European Court of Justice (ECJ) in ANGED v. FASGA and Others (C-78/11) emphasized that the purpose of paid annual leave is to allow workers to rest and enjoy a period of relaxation and leisure.

The Employment Act, Section 28 (1) (a), states that an employee is entitled, after every twelve consecutive months of service, to at least twenty-one (21) working days of leave with full pay. This provision closely mirrors Section 20 (2) of South Africa’s Basic Conditions of Employment Act (BCEA), which mandates a minimum of 21 consecutive days of annual leave with full remuneration for each leave cycle.

Kenyan Employment and Labor Relations Court judgments on annual leave issues are relatively sparse, often focusing more on calculating contested awards than interpreting Section 28 of the Employment Act.

Regarding forfeiture, the law clearly states that any statutory leave not taken within 18 months (not 6) will be forfeited. Non-statutory leave terms are regulated by agreements between the parties.

Employers must ensure their employment policies comply with the Employment Act.

For assistance with Employment Law, policy formulation, or related matters, please contact us at info@wka.co.ke.