Which remedies are available for breach of contract of employment in Kenya?

Breach of an employment contract occurs when either the employer or employee fails to fulfill the terms set out in the agreement, whether those terms are written, verbal, or implied by law. Below is an overview of the main remedies available under Kenyan law when such a breach occurs.<br /><br />1. Repudiation<br />If breach of contract of employment is so fundamental as to indicate lack of intention to contract, the agrieved party can repudiate the contract. <br /> <br />2. Damages – measure of damages<br />If breach is by the employer, the employee is entitled to damages in the measure of loss of earnings. However, the employee is under duty to mitigate the loss that arises from such breach. If he does not damages may not be rewarded at all. The English position is that if he does, damages may be punitive or exemplary. That was decided in Parry –vs- Cleaver. Section 49 of the Employment Act provides specifies on the measure of damages for wrongful dismissal and unfair termination. <br /> <br />3. Specific Performance<br />This is where a court orders an employer to reinstate the employee. Specific performance is an equitable and discretionary remedy. It is a rare remedy on the basis of public policy. Section 49(4)(d) reiterates the said position and urges the court to consider the common law principle that there should be no order for specific performance in a contract of service except in very exceptional circumstances.