Let us rest! The plight of employees mandated to go to work even during Public Holidays
The Cabinet Secretary for Interior and National Administration in the Gazette Notice
number 15238 published on 6th November, 2023, declared the 13th of November a public
holiday. This day dubbed, ‘National Tree Growing Day’ was dedicated to the planting of
trees all over the country. Sherehe nayo ilikuwa kubwa which can be loosely translated
to ‘it was a very big celebration’, since many beloved citizens were assured of a full day
rest from their usual hustle and bustle.
However, passing by the streets of Nairobi CBD that very Monday, I couldn’t help but
notice that numerous enterprises and ventures were open for business. Doesn’t the
declaration of a holiday dictate mandatory leave from work, with the exception of
essential services such as aviation and healthcare? Furthermore, what do our laws
state in relation to employees’ rights to leave?
The Public Holidays Act, which gave the aforementioned C.S Prof. Kithure Kindiki the
power to declare a public holiday, states in Section 5 that employees' leave on public
holidays is subject to the discretion of their employers. It mentions that for those working
under state departments, the heads of these departments may summon them to work
on public holidays, and for private companies working on holidays depends on the
provisions of the individual agreement between an employer and their employee.
Looking at the Employment Act, Section 10 sub-section (3)(a)(i) dictates that a leave on
a public holiday should be indicated in the written contract of service between an
employer and their employee. Additionally, employees are entitled to full pay during
public holidays.
We can proceed to look at the case of Reef Hotel Limited v Josephine Chivatsi (Civil
Appeal E004 of 2020), where the respondent claimed compensation for unpaid public
holiday leave, among other forms of compensation. The learned judge first determined
that her employment was unlawfully terminated, which was Josephine’s main grievance.
When determining whether she should be awarded public holiday allowances, the
learned judge stated that the burden of proof was on her to avail evidence in court
proving the specific number of public holidays when she worked. Thus, she was
awarded public holiday compensation.
In light of these statutes and the above case law, we can now see that leave on public
holidays is NOT compulsory, and agreements between employers and their employees
override the statute provisions, as the statutes themselves state.
Wendy Chepchumba, a second year Law Student at the University of Nairobi. She also serves as the
Marketing Editor of the University of Nairobi Law Journal.
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