Legal Update: The Persons with Disabilities Act, 2025 – A New Era for Inclusion

The Persons with Disabilities Act, 2025, represents a significant leap forward in upholding the constitutional rights of persons with disabilities in Kenya, as mandated by Article 54 of the Constitution. This landmark legislation, superseding the Persons with Disabilities Act, Cap. 133, establishes a robust framework dedicated to protecting, promoting, and monitoring the rights of this vital segment of our society. It underscores the fundamental moral, ethical, and legal duty to ensure their complete and equitable participation in all facets of life.

Enhanced Obligations of the National Government:

The Act places a comprehensive set of obligations on the national government, signaling a commitment to systemic and impactful change:

Policy Development: Develop policies on the protection and promotion of the rights of persons with disability.
Research and Innovation: Undertake investigations, surveys, and research into the causes and nature of disabilities and the development of new assistive devices.
Prevention and Rehabilitation: Put in place measures for the prevention of disabilities and rehabilitation of persons with disability.
Professional Training Infrastructure: Provide facilities and infrastructure for the training of professionals in the rehabilitation and habilitation of persons with disability.
Inclusive Education: Promote the inclusion and integration of persons with disability in schools.
Public Service Employment: Promote the inclusion and integration of people with disabilities in the public service and put in place measures to ensure that at least five per centum of the employment positions are filled by people with disabilities.
Accessibility Standards: Prescribe minimum standards and guidelines for public transport vehicles, communication service companies, and infrastructure developers to facilitate reasonable access by persons with disability.
Affirmative Procurement: Adopt affirmative action measures in procurement of national government goods and services by implementing preferential procurement for persons or entities managed by persons with disability.
Universal Basic Education and Amenities: Ensure access to free and compulsory basic education and other social amenities to every child with a disability.
Resource Allocation: Allocate adequate resources to programmes specifically targeting persons with disabilities.
Disability Training Funding: Allocate adequate resources for training on persons with disability.
Equitable Resource Distribution: Ensure equity in the distribution of resources to all categories of disabilities.
Affirmative Action in Education: Promote affirmative action to ensure that learners with disabilities are enrolled in all levels of learning institutions.
County Support: Provide capacity building, funding and technical assistance to the county governments on all matters relating to persons with disability.
Inter-Governmental Consultation: Consult county governments on any matter relating to persons with disabilities that affect the functions and powers of county governments.
Caregiver Support: Develop programmes for care givers of persons with disabilities on specialised training, counselling and economic development.
Mainstream Inclusion: Ensure inclusion of persons with disability in all mainstream programs and interventions.

Specific Duties for County Governments:

County governments are also entrusted with specific responsibilities under the Persons with Disabilities Act, 2025, tailored to the devolved system:

Policy Implementation: Implement national policies for the protection and promotion of the rights of persons with disability.
Local Resource Allocation: Allocate adequate resources to programmes specifically targeting persons with disability.
Early Childhood Education and Amenities: Ensure access to free and compulsory pre-primary education and other social amenities to every child with disability.
Information Coordination: Coordinate and disseminate information on government sponsored and non-government sponsored programmes targeting persons with disability within the respective counties.
County Public Service Employment: Promote the inclusion of persons with disability in the county public service by putting in place measures to ensure that at least five per centum of the employment positions are filled by persons with disability.
Local Affirmative Procurement: Adopt affirmative action in procurement of county government goods and services by implementing preferential procurement for individuals or entities established or managed by persons with disability.
Local Mainstream Inclusion: Ensure inclusion of persons with disability in all mainstream programs and interventions.

Key Changes from the Repealed Act (Cap. 133): A Paradigm Shift

The Persons with Disabilities Act, 2025, marks a significant departure from the repealed Cap. 133, introducing crucial changes:

Constitutional Foundation: The 2025 Act explicitly gives effect to Article 54 of the Constitution, a basis not specified in the Cap. 133 excerpts.
Enhanced Structure and Scope: The new Act features a more detailed structure, particularly in outlining the distinct obligations of national and county governments, reflecting the devolved system. It also encompasses a broader range of explicitly stated rights, including legal capacity, privacy, rights specific to various demographics (women, children, youth, older persons), protection from abuse and emergencies, access to ICT and financial services, and independent living – areas less detailed or absent in the Cap. 133 excerpts.
Restructured NCPWD: While both Acts establish the National Council for Persons with Disabilities (NCPWD), the 2025 Act aims to restructure it and provides more comprehensive details on its composition, qualifications, appointment procedures, and functions.
Strengthened Employment Provisions: Both Acts prohibit discrimination and advocate for a 5% employment target. However, the 2025 Act offers a more detailed definition of discrimination and reasonable accommodation, mandates annual employment reports, prohibits dismissal based on disability, and sets a minimum retirement age five years above the mandatory age, a significant change from Cap. 133’s mention of sixty years.
Comprehensive Accessibility Standards: Both address accessibility, but the 2025 Act includes a dedicated Second Schedule with detailed standards for the built environment, mandates immediate compliance for new constructions/modifications, covers various transport modes, and links building completion certificates to compliance. It also explicitly includes public transport operators, communication, and information services under adjustment orders.
Significantly Increased Penalties: The 2025 Act introduces substantially higher fines and imprisonment terms for numerous offences compared to Cap. 133. For example, failure to comply with an adjustment order now carries a potential fine up to KSh 5 million or five years imprisonment, or both, a significant increase from the previous KSh 20,000 or one year. The new Act also introduces life imprisonment for severe offences like harmful practices causing harm or death.
Expanded Reliefs and Incentives: The 2025 Act adds potential income tax exemptions and social assistance for caregivers of severely disabled persons, supplementing existing provisions for tax exemptions for persons with disabilities and incentives for employers/donors.
Robust Institutional Framework: The new Act mandates that all government entities establish Disability Mainstreaming Units and submit annual reports, a more explicit and broader requirement than in Cap. 133.
Specific New Provisions: The 2025 Act introduces specific requirements such as mandatory free airtime on media outlets, reserved housing and market stalls, and more detailed provisions regarding access to justice, including accessible court facilities and services.

Lessons and Risks for Organizations (Private and Public): A Call to Action

The Persons with Disabilities Act, 2025, unequivocally reinforces and expands the legal framework for the rights of persons with disabilities, demanding concrete action from all organizations:

Mandatory Compliance: The Act establishes legally enforceable rights and obligations, with significant penalties for non-compliance. Voluntary initiatives are no longer sufficient; full adherence is now a legal necessity.
Fundamental Accessibility: Universal design and barrier-free environments are now essential legal prerequisites. Organizations must conduct systematic reviews and invest in adapting physical infrastructure, communication, and services. New developments must be accessible from the outset.
Employment Practice Overhaul: Organizations must actively work to prevent discrimination in all employment aspects, provide reasonable accommodations, and potentially revise recruitment processes. Public sector entities have specific employment targets, and private employers with a certain size also face direct obligations.
Inclusive Service Provision: Denying access to premises or services based on disability is prohibited and can result in legal action. Organizations must ensure equal access to all services.
Accessible Communication: Organizations interacting with the public, especially media and telecommunication providers, must adopt accessible formats and technologies.
Evolving Procurement Policies: National and county governments are mandated to implement affirmative action in procurement, favoring businesses owned by persons with disabilities. Other organizations may consider similar practices.
Mainstreaming Disability: Disability inclusion must be integrated into all organizational planning and processes. Government entities are required to establish dedicated Disability Mainstreaming Units.
Data Collection and Reporting: Organizations may need to collect data and submit reports related to disability inclusion to relevant authorities.

Legal Risks for Businesses: Navigating the New Landscape

Failure to comply with the Persons with Disabilities Act, 2025, exposes businesses and institutions to substantial legal risks:

Severe Penalties and Fines: Non-compliance can lead to significant financial penalties and imprisonment terms, with the most severe offences carrying life imprisonment.
Civil Litigation and Damages: Individuals facing discrimination or denial of services can pursue civil lawsuits to recover damages.
License Suspension: Media and telecommunication companies risk license suspension for failing to provide accessible services.
Development and Building Impediments: New buildings lacking accessibility features will not receive completion certificates.
Legally Binding Adjustment Orders: The NCPWD can issue enforceable orders requiring organizations to make their premises and services accessible at their own expense.
Reputational Damage: Legal challenges and non-compliance can severely harm an organization’s public image and reputation.

In summary, the Persons with Disabilities Act, 2025, significantly strengthens the legal framework protecting the rights of persons with disabilities in Kenya. It imposes clear, enforceable obligations on both governmental and private entities, backed by substantial penalties for non-compliance. A proactive and comprehensive commitment to accessibility, inclusion, and non-discrimination is now a legal imperative for all sectors.

Disclaimer: Please note that this legal update provides a summary of the Persons with Disabilities Act, 2025, based on the information provided and does not constitute legal advice. AJS Advocates is available to provide advice on specific obligations arising from this new law, assist in drafting policies and compliance strategies, and conduct audits to assess levels of risk.

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