Felistas Njeri Waweru v Chairman, Board of Governors, Kairi Secondary School [2018] KEELRC 1965 (KLR)
The bottom line
#A Kenyan school wrongfully sacked a bursar for missing work on maternity leave, and the court awarded her damages and notice pay.
What this practically means
#Executive summary
#Key legal issues
#Whether the summary dismissal was unfair
The dismissal was wrongful; the Claimant had lawful cause to be absent and was entitled to pay in lieu of notice
At the time of dismissal in 2006 dismissals were governed by common law, requiring notice. The Claimant applied for maternity leave on the day of a premature delivery, was hospitalised, and the rejection came a month later. Maternity and medical reasons constituted lawful cause for absence; alternatively she was entitled to convalescence after a surgical delivery. The Respondent did not appear to contest the other allegations, so the dismissal was wrongful and pay in lieu of one month's notice was due.
Whether the Claimant's rights were violated
Yes - the denial of maternity leave, a statutory right in 2005, was a violation leading to the dismissal
Maternity leave was a statutory entitlement in 2005. The Claimant applied for it on the day of premature delivery but the request was denied, and that denial directly precipitated her summary dismissal. The Court held that breach of the statutory entitlement consequentially causing wrongful dismissal entitled the Claimant to a remedy, which it assessed at Kshs 300,000/- as damages given the reprehensibility of the Respondent's conduct.
Whether the Claimant was discriminated against
No - the discrimination claim failed for want of particulars and comparative evidence
The Claimant alleged discrimination but did not disclose its nature nor show that the Respondent had treated other women in her position differently. Without such material the Court could not find discrimination on account of gender or reproductive health, and the claim was rejected despite success on the maternity-leave violation.
Whether contractual rights were breached
No - the Claimant was not a civil servant and proved no breach of her contract on remuneration
The Claimant anchored benefits claims on civil service circulars and the Dadson Maina decision, contending she was a civil servant. The Court held she was an employee of the Board of Governors, not the Public Service Commission, and the Dadson decision was predicated on the Constitution, 2010, long after she left service. She served under terms agreed with the Respondent and did not demonstrate breach as far as remuneration was concerned.
Legal principles established
#- At common law (before the Employment Act, 2007), an employer could dismiss for no cause, good cause or bad cause provided contractual notice was given, failing which pay in lieu of notice was payable.
- Maternity or medical reasons constitute lawful cause for an employee's absence from work.
- Denial of the statutory right to maternity leave which leads to dismissal is a violation entitling the employee to a remedy.
Court orders
#- 1.Pay in lieu of notice of Kshs 10,951/-
- 2.Damages of Kshs 300,000/-
- 3.Total award of Kshs 310,951/- to the Claimant
- 4.Claimant to have costs of the Cause
- Jurisdiction invoked
- First-instance employment cause transferred to the Employment and Labour Relations Court from the High Court (proceedings instituted in the High Court on 4 October 2006)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Felistas Njeri Waweru v Chairman, Board of Governors, Kairi Secondary School [2018] KEELRC 1965 (KLR)", Case Analysis (2018). Cause No 1764 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1965/eng@2018-05-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.