James Wairoto

Practice Areas

James an Advocate of the High Court of Kenya and a highly regarded and experienced dispute resolution, employment, tax and investigations practitioner. James has wide and in-depth experience advising and handling complex, high value, and multi-faceted dispute resolution, employment and tax matters across all the sectors of the economy in various courts and tribunals.

James has been consistently ranked as a Top 100 Litigation Lawyer in Kenya by Lawyer Africa. This recognises James as a leading dispute resolution practitioner in Kenya. In 2017 and 2018, James was ranked as a Next Generation Lawyer in Dispute Resolution by Legal 500, a leading international research, ranking and publishing firm based in the UK. This recognition ranked James as a leading dispute resolution practitioner in Kenya.

James has recently been ranked by Chambers and Partners as a leading lawyer in Kenya.

Professional Memberships

Law Society of Kenya (LSK)

Institute of Certified Secretaries of Kenya (ICS)

Languages Spoken

English

Kiswahili

Career

• Dispute Resolution

• Tax

• Alternative Dispute Resolution - Mediation

• Employment Litigation

• Power, Energy and Natural Resource litigation

• Environment and Land litigation

• White Collar Crime, Anti-Trust and Fraud Investigations

Publications

An Employees’ Right to Disconnect

The Employment (Amendment) Bill, 2021 seeks to amend the Employment Act, 2007 (the Act) to introduce an employee’s right to disconnect from their employment duties outside of the employee’s contractual working hours. This right has been explicitly referred to in the Bill as the entitlement bestowed upon an employee not to be contacted by an employer during out of work hours as per the Employer’s policy.

The right to disconnect means a worker’s right to be able to disengage from work and refrain from engaging in work-related electronic communications, such as emails or other messages, during non-work hours.

Clause 27A (2) of the Bill allows the employer to contact the employees outside of working hours if “such contact is necessary for the purpose of addressing an emergency.”

The Bill obligates an employer who has more than ten (10) employees to work in conjunction with employees and trade unions to develop a policy on the employee’s right to disconnect. The policy shall outline the exceptions to the right to disconnect, as well as the circumstances under which the right may be waived.

Under Clause 27 A(7)(b), an employee is not obliged to respond to an employer’s communication outside of working hours, and if the employee opts to respond, the employee is entitled to compensation. If an employee chooses to not respond to a work-related communication outside of the employee’s contractual working hours, the employer cannot reprimand, punish, or subject the employee to disciplinary action.

The Bill exempts essential service providers who are specified under section 81 of the Labour Relations Act, 2007 (the LRA) from the right to disconnect. Essential service has been explicitly referred to as a service the interruption of which would probably endanger the life of a person or health of the population or any part of the population. The fourth schedule to the Act provides for a list of essential services to include Water Supply Services, Hospital Services, Air Traffic Control Services and Civil Aviation Telecommunication Services, Fire Services of the Government or Public Institutions, Posts Authority and Local Government Authorities and Ferry Services.

The intention of the Bill is to enhance the work-life balance of employees in this post-pandemic remote working era and address the increased employee burnout. The Bill seeks to strike a balance between work and private life to allow digital technology to have a positive effect on workers\’ quality of life supported by employers.

If the Bill is passed, employers may need to revise employment contracts to clearly state the agreed working hours if the contracts currently do not provide for the same, as well as amend their internal policies and practices. In addition, where an employee’s contracts require employees to work outside normal working hours (including weekends and public holidays), the contract must specifically state that the employees will be remunerated for the additional hours worked.

The right to disconnect originated from France when the government passed the El Khomri Law which provided for this right and its implementation. This right introduced changes in the working conditions for the better for the working class of France. Other nations that this right has been introduced include Canada, Philippines, Belgium, Germany, Ecuador and Italy. The International Labour Organisation(the ILO) pursuant to the right to disconnect produced a report titled Working from home: From Invisibility to decent work. Commenting on this right, the ILO stated that it is an important policy measure to limit working time and ensure respect for the boundaries between work life and private life. The ILO encourages governments to take guidance of Convention No. 177, the Home Work Convention,1996 and Recommendation No. 184, the Home Work Recommendation, 1996 in implementing the right to disconnect. To our knowledge, Kenya is yet to ratify this convention.

By: James Wairoto and Moses Ogutu

Expert in these Jurisdictions

The Republic of Kenya

Experience

• 2026 to date - Partner , Head of Dispute Resolution, Employment, Investigations and Tax at MW & Company Advocates LLP - MWC Legal

• 2018 – December 2025 :- Managing Partner, Head of Dispute Resolution, Employment and Investigations at MW & Company Advocates LLP - MWC Legal

• 2017 – 2018 :- Senior Associate, Anjarwalla & Khanna Advocates, Nairobi

• 2016 :- Principal Associate, Anjarwalla & Khanna Advocates, Nairobi

• 2013 – 2015 :- Associate, Anjarwalla & Khanna Advocates, Nairobi

• 2012 – 2013 :- Associate, Nzioka & Co. Advocates, Nairobi

• 2011 – 2012 :- Legal Assistant and Advocate, Kairu & McCourt Advocates, Nairobi

• 2011 :- Intern, International Commission of Jurists, Nairobi

• 2011 :- Pupil, Muthoga Gaturu & Company Advocates, Nairobi

Work Highlights

Acting for and defending for a leading renewable energy company at the Environment and Land Court and at the Court of Appeal in class action claims filed for and on behalf of the residents of Laisamis constituency concerning a € 625 million or KES. 71 billion 310MW wind power farm in Marsabit County, Kenya, a flagship Vision 2030 national project that contributes 12% to Kenya’s national grid.

Acting for and defending a leading renewable energy company in a constitutional petition filed by activist and Senator Okiya Omtatah at the High Court, Constitutional and Human Rights Division, seeking damages of KES. 39.6 billion and various declaratory orders.

Successfully acting and advising the owner of an uptown shopping mall in Nairobi in a tenancy dispute filed at the Environment and Land Court seeking damages to the tune of over KES. 254 million for losses allegedly caused by irregular distress for rent.

Acting for and defending an affiliate of a leading global group of companies in a land dispute instituted at the Environment and Land Court over a prime parcel of land valued at over KES. 300 million situated in the up-market part of Nairobi.

Acting for and defending the Directors of a technology company in a commercial dispute filed by a commercial bank seeking to recover a facility of USD. 5.7 million against the Company and the Directors.

Acting for a leading online company in a shareholder’s dispute against a company and its directors concerning intellectual property rights at the High Court of Kenya.

Acting for and advising a leading IOT platform company in a commercial dispute with a joint venture partner at the High Court of Kenya.

Advising an affiliate of a leading global group of companies, in relation to the breach of a facility of over USD. 2 million at the High Court of Kenya.

Acting and defending a commercial bank and its affiliate in a commercial dispute for breach of contract instituted by a customer concerning a USD 50 million infrastructure fund.

Acting for and advising a real estate company in a construction dispute against a contractor concerning the construction of apartment blocks valued at over KES. 350 million in the prime location in Nairobi.

Acting for and advising an investment and mining company in a land dispute at the Environment and Land Court against a family concerning land worth over KES. 300 million in a dispute touching on fraudulent double allotment of title and indefeasibility of title.

Clients

• Lake Turkana Wind Power Limited

• Janus Continental Group

• Azalea Holdings Limited

• Lexo Energy Kenya Limited

• Shop and Deliver Limited

• OLA Energy Kenya Limited

• ATC Kenya Limited

• Paramount Bank Limited

• ABC Bank Limited

Mayfair Insurance Company Limited

Geminia Insurance Company Limited

Kenya Reinsurance Corporation Limited

• National Housing Limited

• Radisson Blu Hotel

Nairobi Safari Club by Swissbel-hotel

Sybyl Kenya Limited

Chandaria Industries Limited

Bobmil Industries Limited

Macnut Association of Kenya

Orient Enterprises Limited

Exotic Nuts (EPZ) Limited

MAS Intimates Kenya EPZ Limited

Industry Sector Expertise

• Dispute Resolution

• Tax

• Alternative Dispute Resolution - Mediation

• Employment Litigation

• Power, Energy and Natural Resource litigation

• Environment and Land litigation

• White Collar Crime, Anti-Trust and Fraud Investigations

Education

Awards