It is a requirement of law that a contract of service should be in writing.

Section 9 of the Employment Act 2007 states that a contract of service for a period or a number of working days which amounts in the aggregate to the equivalent, of three months or more; should be in writing.  The result is that where there is a question about the respective rights and liabilities of the employer and the worker, the answer may require a fairly complex analysis of a variety of different sources to establish first what the parties actually agreed and secondly whether there are other constraints affecting the position. In Miguna Miguna v Attorney General[2012]eKLR the court relied on an article by Gwyneth P.H. in Employment Law, Sweet and Maxwell 7th Edition at 116 stating as follows: “A written statement is not the same thing as a written contract of employment. A contract creates the rights and duties of the parties; the written statement merely declares they are what they have been agreed and it follows that it is therefore capable being inaccurate. It is an important distinction for it a document is held to be a written contract, it will be presumed that it accurately records the terms agreed by the parties and it will be very difficult to persuade a court that the terms are otherwise. If it is a statement then it has no special legal status and could be a mistaken record of what was agreed” http://kenyalaw.org/caselaw/cases/view/85575/

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