Kenya Tax Residence — 3-Year Average: the rule, how days are counted, examples

Summary

Kenya has a second test for people with no permanent home in the country. You are a tax resident for a year when you were present in Kenya in that year and in each of the two years before it, for periods that average more than 122 days a year. Three times 122 is 366, so the test is met at 367 days over the three calendar years together. It catches people who stay under 183 days every year. The rule is in section 2 of the Income Tax Act, and the Kenya Revenue Authority (KRA) applies it.

Limit: 366 days over three years. The test is met at 367
Average: More than 122 days a year
Period: This calendar year and the two calendar years before it
Extra condition: You must be present in Kenya in each of the three years
Law: Income Tax Act, Cap. 470, section 2, resident, part (ii)(B)
Run by: Kenya Revenue Authority (KRA)

Who it applies to

People who spend four or five months in Kenya every year and always leave before 183 days.
Consultants and project staff who return to Kenya for the same season each year.
Researchers and aid workers with repeated field periods in Kenya.
People who spend each northern winter on the Kenyan coast and have no permanent home there.

The rule

Section 2 of the Income Tax Act defines who is resident. For an individual with no permanent home in Kenya it gives two tests. Test (A) is presence for 183 days or more in the year of income. Test (B) is this one: the person was present in Kenya in that year of income and in each of the two preceding years of income for periods averaging more than 122 days in each year of income.

The year of income is the twelve months from 1 January to 31 December. So test (B) always looks at three whole calendar years: the year you are checking and the two before it. An average of more than 122 days over three years means a total of more than 366 days. With whole days, the lowest total that meets the test is 367.

There is a second condition inside the test. You must have been present in each of the three years. A year with no presence in Kenya breaks the chain, even if the other two years are very long. Every year in the average counts at its full value. No year has a smaller weight.

This test only matters when test (A) is not met and you have no permanent home in Kenya. The 183-day test has its own tracker, Kenya Tax Residence — This Year. If you have a permanent home in Kenya, presence for any period in the year already makes you resident, and neither day test is needed.

Why it exists

A limit of 183 days in one year is easy to avoid: a person can live in Kenya for five months every year and never reach it. The average test looks at the pattern over three years. If Kenya is a regular part of your life, with more than four months a year on average, the law treats you as a resident although no single year is long.

Counting the days

You add the days you were present in Kenya in this calendar year and in the two calendar years before it, and you check that each of the three years has some presence.

Count your days in Kenya for the current calendar year, from 1 January to 31 December.
Count your days in Kenya for each of the two calendar years before it.
Check that none of the three years is zero. If one year has no presence, the test is not met.
Add the three totals.
If the sum is 367 or more, the average is more than 122 days a year and you are resident for the current year.
Repeat the check each new year, with the oldest year dropped and the new year added.

How Countr counts it. Countr adds your days in Kenya for this calendar year and the two before it, counting any part of a day, with each year at full weight, and shows the sum against the point of 367 days at which the test is met. The law also needs presence in each of the three years. Countr checks this for the current year only: it does not test whether the two earlier years each had presence. So in a rare case the card can warn you when the law would not. It warns early, never late. Countr cannot see a permanent home in Kenya, and with a home one day of presence is enough.

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Examples

Four months every year

Anna has no home in Kenya. She was there for 130 days in 2024, 125 days in 2025 and 112 days in 2026. No year reaches 183. The sum is 367 days, an average of more than 122, and she was present in all three years. She is a tax resident of Kenya for the year of income 2026.

An average of exactly 122

Mark was in Kenya for 150 days in 2024, 150 days in 2025 and 66 days in 2026. The sum is 366 days, and the average is exactly 122. The Act says more than 122, so the test is not met for 2026. One more day in Kenya in 2026 would bring the sum to 367 and make him resident for that year.

A missing first year

Sara was never in Kenya in 2024. She spent 180 days there in 2025 and 182 days in 2026. The sum for the three years is 362 days, and she was not present in 2024 at all. Test (B) fails for 2026 on both points. Test (A) also fails, because neither year reached 183 days. In 2027 the three years will be 2025, 2026 and 2027, and she will meet the test with only 5 days.

Exceptions

The test needs presence in each of the three years. One year with no presence in Kenya means it cannot be met for that period.
The test is for people with no permanent home in Kenya. With a permanent home, presence for any period in the year makes you resident.
If you reach 183 days or more in the current year, you are already resident under test (A) and the average is not needed.
A tax treaty can decide your residence for the treaty when Kenya and another country both treat you as resident.

Common misconceptions

“I am non-resident as long as I leave before 183 days each year.”: No. Three years with an average of more than 122 days make you resident for the third year, even when each year is far under 183.
“The earlier years count for less, like in the United States.”: Kenya's test is a plain average. Each of the three years counts in full.
“The three years are any 36 months.”: They are three years of income, and a year of income is 1 January to 31 December. The test uses whole calendar years.
“A long stay in two years is enough.”: You must be present in each of the three years. If you were not in Kenya at all in the first year, the test is not met, however long the other two were.

Questions and answers

How many days over three years make me a tax resident of Kenya?

367 days or more over the current calendar year and the two before it, with presence in each of the three years. This is the same as an average of more than 122 days a year.

For which year am I resident when I meet the average test?

For the year you are checking, which is the last of the three years. The Act asks if you were present in that year of income and in each of the two preceding years for the required average.

Does a short visit in the third year count?

Yes. The Act only asks that you were present in the year, and then looks at the average. If the first two years were long, a few days in the third year can be enough to meet the test.

Is exactly 122 days a year enough to be resident?

No. The Act says more than 122 days on average. A total of 366 days over the three years gives exactly 122 and does not meet the test.

Do I count part days in Kenya?

The Act speaks of periods of presence and has no special rule for part days. Count arrival and departure days as days present to be safe. Countr counts any part of a day.

How can I leave Kenyan tax residence under this test?

The sum of three calendar years must fall to 366 days or lower, or one of the three years must have no presence in Kenya. Keep records of your travel, because the KRA looks at the whole situation.

Sources

Other rules for Kenya

Kenya Tax Residence — This Year 182 days in each calendar year

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This page explains the rule and how the days are counted. It is not legal or tax advice. The authority decides each case on its own facts.