Governing the Invisible Employer: A Legal Framework for Algorithmic Hiring, Automated Dismissal, and the Right to an Explanation in Kenya's Digital Labour Market

Artificial intelligence is already deciding who gets hired and who gets dismissed in Kenya's banking, telecommunications, and business process outsourcing sectors. Yet no provision of the Employment Act 2007, the Data Protection Act 2019, or the Artificial Intelligence Bill 2026 expressly governs algorithmic employment decisions.
This policy brief, the first in the Walukhu & Company Advocates Practitioner-Scholar Series 2026–2027 ,documents the scale of AI deployment in Kenya's labour market, identifies the precise legal gaps across three instruments, and proposes three concrete, legislatively grounded reforms:

1. A new Part VIA inserted into the Employment Act 2007 (proposed section 46C), establishing mandatory human review before any AI-assisted hiring or dismissal and a right to a written explanation within seven days.

2. A binding ODPC Regulatory Guidance Note classifying algorithmic employment decisions as high-risk automated processing under the DPA 2019, mandating Data Protection Impact Assessments before deployment.
3. An interpretive ruling by the Employment and Labour Relations Court recognizing that unexplained algorithmic dismissal constitutes a failure of fair procedure under section 45, enforceable under Article 47 of the Constitution of Kenya 2010.

The brief has been submitted to the Employment and Labour Relations Court, the Ministry of Labour, the Office of the Data Protection Commissioner, the Federation of Kenya Employers, COTU, the Kenya Law Reform Commission, and the Parliamentary Committee on Labour and Social Welfare.
All citations are in SLASLEC format. The model clause language is ready for parliamentary insertion.