Work done should be paid for, and Kenyan law gives employees practical routes to recover unpaid salary, leave pay and other dues. The routes differ in cost and speed, and choosing sensibly starts with the records you can produce and the stage the employment relationship has reached. This guide sets out the options and the order in which they are usually pursued.
Quick answer: raise the arrears in writing with the employer first, then consider a complaint to the area labour officer and, if that does not resolve the matter, a claim at the Employment and Labour Relations Court. Keep payslips, the contract, bank or mobile money records and every message about the arrears, and check the time limits early because they differ between routes.
What can be recovered
The claim should itemise each sum rather than state a round total. Typical items are unpaid basic salary, salary for days worked before termination, accrued leave pay, notice pay where notice was not given or was not paid in lieu, overtime and allowances that the contract or the law requires, and statutory deductions that were taken from pay but not remitted. Where the employment has ended, terminal dues should be identified separately from continuing arrears.
Interest may be claimed on the arrears in appropriate cases, and the court can also be asked to order the employer to produce employment records. The starting point, though, is a computation that shows the rate of pay, the period, the amount paid and the shortfall for each item.
Start with the employer
A written demand is not a formality. It fixes the amount claimed, gives the employer a chance to correct its records and creates a record of the dispute. The letter should identify the sums, the period, the basis for each item and a reasonable date by which payment is sought, and it should enclose copies of the relevant payslips and records.
Many matters settle at this stage, particularly where the employer’s own payroll records support the claim. Keep a copy of the letter and proof of delivery. If the employer responds with a partial payment or a set-off, record what is accepted and what remains in dispute rather than treating the payment as full settlement.
The labour officer conciliation route
The Ministry of Labour publishes a conciliation process for labour disputes. For an individual complaint, the complaint is reported to the area labour officer and registered in the prescribed form after an interview. If the complaint is not settled within 7 days, the labour officer calls the complainant and the employer for a conciliation meeting. Where the parties agree, the employee is paid and an agreement is signed. Where they do not, the officer may call further meetings; if the employer does not attend, the officer may issue a demand notice, calculate the claims and send it to the employer for payment.
A trade dispute follows a different track, with a conciliator appointed to complete conciliation within 90 days or such extension as the parties agree. If no agreement is reached, the conciliator prepares a report with findings and recommendations that enables the parties to refer the matter to the Employment and Labour Relations Court. The labour officer route is generally less formal and less costly than litigation, but it depends on the employer engaging with the process.
A claim at the Employment and Labour Relations Court
Where conciliation does not resolve the claim, the court route is the next step. The claim should set out the employment relationship, the terms, the breach, the sums claimed and the relief sought, and it should be supported by the documents that prove each element. The court has the specialist jurisdiction over employment and labour relations matters and can order payment, production of records and other relief.
Court proceedings take longer than correspondence or conciliation and require attention to pleading, service and case management. That does not make the route unattractive: where the employer denies the claim or refuses to engage, a court order is the remedy that can be enforced.
Documents and evidence
- Employment contract, letter of appointment and any variation.
- Payslips, payroll summaries and statutory deduction records.
- Bank or mobile money statements showing salary credits.
- Attendance, overtime and leave records.
- Termination or resignation letters and correspondence about the exit.
- Written demand letters and the employer’s responses.
- Messages, emails and minutes of any conciliation meeting.
Keep originals and provide copies, and prepare a table showing each month worked, the pay due, the pay received and the difference. A clear computation is often the difference between a claim that is understood quickly and one that requires repeated clarification.
Time limits and common defences
Claims are subject to time limits, and the period that applies depends on the route and the nature of the claim. The practical point is to act promptly: a claim that is brought early preserves evidence and witnesses, and it avoids the risk that the employer closes, restructures or loses records. The applicable period should be confirmed before corresponding further or assuming that an internal process has paused time.
Common defences include an alleged overpayment, a set-off for advances, termination for cause, or a claim that the employee resigned and is not owed notice pay. Some defences raise factual disputes that must be answered with documents; others raise legal points about the contract or the statute. Preparing the answer to them before the employer raises them makes the claim harder to undermine.
Cost and when to get advice
The labour officer route involves administrative steps rather than court filing, while court proceedings attract court fees and advocate’s fees, which are regulated. Ask for a written estimate of the fees and disbursements before instructing an advocate, and ask whether a settlement discussion would be more proportionate than litigation.
Advice is usually worth taking where the arrears are substantial, the employer disputes the contract terms, a counterclaim is threatened, the employment ended in disputed circumstances, or the time limits are close. The firm’s employment law practice in Nairobi advises on salary recovery alongside wrongful termination claims and the unfair dismissal process at the Employment and Labour Relations Court.
Primary sources
- Employment Act 2007, Kenya Law.
- Labour Institutions Act 2007, Kenya Law.
- Ministry of Labour and Skills Development: handling of labour disputes.
This article is general information, not legal advice.