The 13-Month Rule Is Dead

What every Kenyan employee should know about unfair termination, no matter how long they have worked

For years, thousands of Kenyan workers were told the same thing after losing their jobs: that they had not worked long enough to complain. Employers pointed to a single clause buried in the Employment Act, Section 45(3), and used it to shut the door on employees dismissed within their first thirteen months of service. There was no hearing required, no explanation owed, and, employers assumed, no recourse available to the employee. That assumption was wrong, and it has been wrong for well over a decade, even though many employers and employees alike have never been told so.

The door that Section 45(3) once held shut has been broken down by the courts. Kenyan judges have repeatedly ruled that this clause violates the Constitution, and it can no longer be used to deny any employee, whether newly hired or long-serving, the right to a fair termination process. If you were let go early in a job and were told you had no case, this chapter is written for you.

What Section 45(3) Actually Said

The Employment Act, 2007 sets out the rules that employers must follow when ending a person's employment. Section 45 deals specifically with unfair termination: dismissals that are not backed by a valid reason, or that skip the process the law requires before someone can be let go. For most of the life of this Act, however, that protection came with an asterisk.

Subsection (3) of that same section carved out an exception. An employee could only bring a claim for unfair termination if they had worked continuously for their employer for a minimum of thirteen months. An employee dismissed in their twelfth month, however unjustly, was told by the letter of the law that they simply had no claim to bring. The reason for the dismissal did not matter. Whether a hearing had taken place did not matter. All that mattered, on paper, was the calendar.

The Case That Killed the Rule

In 2012, this exact injustice was placed before the High Court's Constitutional and Human Rights Division. An employee challenged Section 45(3) directly, arguing that it stripped short-tenure workers of rights guaranteed to every Kenyan under the Constitution: the right to fair labour practices, the right to a fair hearing, and the right to equal protection of the law.

Samuel G. Momanyi v Attorney General & Another [2012] eKLR

High Court, Constitutional and Human Rights Division, Petition No. 341 of 2011, before Lenaola J.

The Court agreed with the petitioner. It held that Section 45(3) was inconsistent with Articles 27, 28, 41, 47 and 50 of the Constitution, covering equality and freedom from discrimination, dignity, fair labour practices, fair administrative action, and the right to a fair hearing. The learned judge went further than simply criticising the provision; he declared it unconstitutional in its entirety.

This distinction matters more than it might first appear. Once a court declares a law unconstitutional, that provision does not merely become difficult to enforce. It is treated, in the words later used by commentators on the case, as though it never had legal force at all, a piece of blank paper. In practice, this meant that the thirteen-month bar could no longer be used to lock any employee out of justice, from the moment the judgment was delivered.

It Did Not Stop There: The Court of Appeal Weighed In

Despite the clarity of the Momanyi decision, some employers, and even some lower courts, continued to apply the old rule for years afterward. Their argument was a technical one: that only Parliament could formally strike a clause from the statute books, and that until it did, Section 45(3) remained good law for anyone unwilling to fight the point all the way up the court system. That argument was finally put to rest at the appellate level.

Gogni Rajope Construction Company Limited & Another v Cornel Otieno Omondi

Civil Appeal No. 321 of 2019, Court of Appeal.

The Court of Appeal reaffirmed the Momanyi decision in full, holding that the thirteen-month service requirement was discriminatory and inconsistent with the constitutional right to fair labour practices, regardless of how long the employee in question had served before being dismissed. The Employment and Labour Relations Court has since applied this reasoning consistently, including in Monicah Mumbi Kibuchi and 6 Others v Mount Kenya University and Another, where the court confirmed that fair hearing rights under Article 47 of the Constitution extend to every employee, probationary or not.

What This Means for You, Practically

Understood together, these judgments mean that the old rule of thumb, that an employee needed thirteen months of service before they could complain about how they were let go, is no longer good law and has not been for some time. Every employee, regardless of how briefly they have worked somewhere, can bring a claim for unfair termination. Every employer, regardless of how new the employee is, must still show a valid reason for dismissal and follow a fair process under Sections 41 and 45 of the Employment Act. Courts have increasingly extended these same fair hearing principles to employees still on probation, drawing on the same Article 47 reasoning used in Momanyi and the cases that followed it.

None of this means that every dismissal of a short-tenure employee is automatically unfair. An employer can still lawfully let someone go for genuine misconduct, poor performance, or a properly conducted redundancy. What has changed, decisively, is that an employer can no longer hide behind an employee's short service record to avoid proving that they had a valid reason and that they followed a fair process in reaching their decision.

One limitation is worth stating clearly, so that it is not mistaken for the rule that has just been described. While the thirteen-month bar itself is gone, the general three-year limitation period for filing an employment claim, set out under Section 90 of the Employment Act, still applies in full. An employee who believes they were unfairly dismissed should not sit on that right. The passage of time can still close the door that Section 45(3) no longer does.

Know Your Rights

The law as it now stands means that any employee who is dismissed, however long or briefly they have worked for their employer, is entitled to a valid and documented reason for their termination, whether that reason is misconduct, poor performance, or genuine redundancy. They are entitled to notice of the allegations against them and a real opportunity to respond before any final decision is made, which is what the law means by a fair hearing. They are entitled to have a person of their choosing present during a disciplinary hearing. They are entitled to payment of all terminal dues owed to them, including outstanding salary, unused leave days, and notice pay where notice was not served. They are entitled to a certificate of service upon leaving their employment. And they are entitled to file a complaint with the Labour Office, or ultimately with the Employment and Labour Relations Court, if they believe their dismissal was unfair, regardless of how long they had worked there when it happened.

What to Do If You Believe You Were Unfairly Dismissed

An employee who suspects they have been unfairly dismissed should begin by requesting their termination letter and any disciplinary records in writing, if these have not already been provided. It helps to write down a clear timeline of events: what was said, by whom, and when. Evidence should be preserved wherever possible, including the employment contract, payslips, and any emails, letters, or messages relating to the dismissal. From there, the appropriate next step is to lodge a complaint with the Labour Office nearest to the workplace, or to consult an advocate about filing a claim directly with the Employment and Labour Relations Court. Because the three-year limitation period under Section 90 continues to run regardless of the thirteen-month bar being gone, this is not a step to delay.

The lesson of Momanyi, and of the Court of Appeal's decision in Gogni Rajope, is a simple one, even if it took over a decade of litigation to settle. A person's job security, and their right to be treated fairly when that job ends, should never depend on how long they happen to survive in the role. The Constitution protects that fairness from the first day of employment, not the four hundredth.

 

Ibalai Legal is a Nairobi-based online legal practice on a mission to make law accessible to every Kenyan. Through Be In The Know With Ibalai Legal, we break down complex legal concepts into clear, practical content for individuals, startups and SMEs. 

 

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Disclaimer- The information provided is for general informational purposes only and should not be considered as professional advice. Please consult a qualified professional for specific guidance.