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There has been a lot of interest in this subject since CS Matiangi’s announcement on Friday last week where foreigners were given 60 days to regularize their work permits.

pain pointPain points

The following pain points have been spoken of in the public domain: –

  1. The fact that numerous Kenyans have lost their jobs in recent years due to layoffs;
  2. The disparity in terms and conditions of service; and
  3. That some of the jobs done by expatriates can be done by Kenyans.

The Law

The applicable law is the Kenya Citizenship & Immigration Act.

eligibleEligibility

The general statement in the work permit application forms is that: –

It is the Government policy that the economy of Kenya should be manned by trained and competent citizens. Permits are issued to foreign nationals with skills not available at present on the Kenya Labour Market, only on the understanding that effective training programmes are undertaken to produce trained citizens within a specified period.

From this, we get that in order to secure a work permit, a foreigner should be bringing in skills and expertise that are not locally available.

In the work permit application form, the applicant is required to: –

  1. State their professional qualifications;
  2. State whether steps have been taken  to fill the position locally;
  3. shadowState whether there will be a person shadowing/understudying the foreigner (details of this person must be given), if not, the reasons should be given;
  4. State how they will be instrumental in training Kenyans;
  5. State their salary and benefits.

The intention seems to be that the foreigner should be working with a Kenyan for purposes of transfer of skills.

Application procedure

The application is done electronically through the Electronic Foreign National Service (“eFNS”) platform. It is advisable to apply through a lawyer or an agency that assists with such matters. The following are some of the requirements: – 

•Copies of academic/professional certificates along with the CV;
•Evidence that the organization failed to fill the vacancy from the local labour market;
•Form 25 duly filled, signed and sealed by the company;
•Non-refundable processing fee of Kshs.10,000/=.

It takes about 6-8 weeks to get the approval after which the fee of Ksh. 200,000/= per year of the permit or part thereof is payable before the permit can be issued.

General points to note

  1. A person who comes to Kenya to engage in any form of employment whether paid or unpaid or in any other income generating activity for a period not exceeding three months should be issued with a special pass, not a visitor’s pass;
  2. It is an offence for one to engage in employment except if one holds either a special pass or a valid work permit;
  3. It is the duty of every employer to apply for and obtain a work permit or a pass before the commencement of employment;
  4. The validity of the permit is tied to the person working for the employer specified in the application;
  5. Where the holder of a work permit ceases to engage in the employment in respect of which the work permit was issued, the employer specified in the work permit should, within fifteen days from the date of such cessation, report, in writing, to the Director that the holder has ceased to engage in such employment.

I did a brief interview yesterday with K24 on the subject, click to watch.

I personally know very many expatriates in Kenya whose work or ventures have had a very significant impact. The law seeks to create a balance where such benefits are recognized and, at the same time, Kenyanization is achieved.

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About Anne Babu

Anne is an Advocate of the High Court of Kenya and the Founding Partner of Anne Babu & Co. Advocates. She has practiced employment law for over 10 years. She is a repository junkie and a lover of editing.

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