Peris Nyambura Kimani v Dalbit Petrolium Limited [2015] KEELRC 656 (KLR)
The bottom line
#A Kenyan court awarded an employee Kshs.3.6 million after her employer told staff she was dismissed before even telling her.
What this practically means
#Executive summary
#Key legal issues
#Whether the Petitioner's termination amounted to discrimination on grounds of pregnancy or health status contrary to Article 27 of the Constitution and section 5 of the Employment Act
No discrimination was established; the Respondent made the termination decision before it knew of the Petitioner's pregnancy complications, and the sick-off sheet did not disclose the illness
The court found the Respondent decided to terminate on 2nd October 2014 before the sick-off sheet was served on 6th October 2014, and the exact medical condition only became known after service of the Petitioner's application. Without knowledge of the pregnancy by the Respondent at the time of the decision, an inference of direct or indirect discrimination could not be drawn. Inferring discrimination in such circumstances would contradict the principles an employee must articulate under section 5 of the Employment Act.
Whether the manner of communicating the termination to third parties before notifying the Petitioner violated her constitutional rights
Yes - the Respondent violated the Petitioner's rights to privacy (Article 31), dignity (Article 28) and fair labour relations (Article 41); damages of Kshs.3,600,000 awarded
The Respondent circulated an email to all staff worldwide announcing the Petitioner had left, excluding her, before any hearing or due process. This was held degrading, psychologically distressful and contrary to Article 31's protection of privacy of communications. The court held that an alleged breach of confidentiality by the employee could not justify violating her privacy; the Respondent had legal mechanisms of discipline which it ignored. Damages were awarded under section 12 of the Industrial Court Act.
Whether frustration of the reinstatement orders and the treatment of the Petitioner after resumption amounted to an unfair labour practice
Yes - the Respondent effectively maintained the termination by not allocating work, withdrawing her laptop, changing her emails and relocating her, frustrating the court orders; this was an unfair labour practice and the cross-Petition failed
By the Respondent's own admission its position on the termination remained constant; the Petitioner did no work and could not be trusted with information. Frustrating court orders was condemned as utter contempt. However, because the Petitioner failed to amend her pleadings to claim compensation for the unfair labour practice, section 49 compensation was not awarded; only constitutional damages and salary arrears flowed from the findings.
The status of the Petitioner's employment and the salary payable
Probation lapsed by operation of law on 6th July 2014; she became a full-time employee entitled to the contractual salary of Kshs.300,000.00 per month
Relying on the earlier ruling of 18th November 2014, the court held the Petitioner had lawfully completed probation by operation of law as from 6th July 2014, so section 42 of the Employment Act was overtaken by events. She was entitled to the balance of Kshs.30,000 per month over the Kshs.270,000 actually paid, for the period served and the notice period, with interest as legally due salary.
Legal principles established
#- No employee should be dismissed without being accorded an opportunity to be heard, even in cases warranting summary dismissal; hearing before termination is mandatory under section 41 of the Employment Act and Article 47 of the Constitution
- Communicating an employee's termination to third parties before notifying the employee violates the right to privacy under Article 31 and dignity under Article 28 of the Constitution and attracts damages
- A contract of employment cannot derogate from statutory minimums; even where a termination notice period is agreed, the statutory protections on hearing apply
- A party who fails to amend pleadings when the circumstances of the claim change cannot later claim relief not pleaded
Court orders
#- 1.The cross-Petition by the Respondent is dismissed with no order as to costs
- 2.The Petitioner is awarded unpaid salary arrears from 6th July 2014 to date based on a due salary of Kshs.300,000.00 and subsequent payments until 15th August 2015 based on a monthly salary of Kshs.300,000.00
- 3.Where gratuity and pension are due, the Respondent to ensure the same is calculated and paid within 60 days from the date hereof; parties to take a mention date to confirm compliance
- 4.The Petitioner shall be paid Kshs.3,600,000.00 in damages by the Respondent
- 5.Salary arrears due to date shall be paid with interest
- 6.The Petitioner's costs of the suit shall be borne by the Respondent
- Jurisdiction invoked
- Article 162(2) of the Constitution and section 12 of the Industrial Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (4)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Titus Githinji Nderitu v Consolidated Bank of Kenya Limited [2022] KEELRC 657 (KLR)[2022] KEELRC 657 (KLR)15 Feb 2022applied
- Kenny Kinako v Ringier Kenya Limited [2016] KEELRC 1229 (KLR)[2016] KEELRC 1229 (KLR)7 Apr 2016applied
- Caroline Gathoni Gikonyo v Kenya Association of Investment Groups [2015] KEELRC 37 (KLR)[2015] KEELRC 37 (KLR)17 Dec 2015applied
- Rose Achieng Mihudhi v Jos Hansen & Soehne (EA) Limited [2015] KEELRC 445 (KLR)[2015] KEELRC 445 (KLR)10 Aug 2015applied
Cite this brief
#Cite this brief
Caselaw, "Peris Nyambura Kimani v Dalbit Petrolium Limited [2015] KEELRC 656 (KLR)", Case Analysis (2015). Petition No. 63 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/656/eng@2015-07-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.