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ELRCPartially AllowedNot stated in the judgment as provided· [2019] KEELRC 25 (KLR)

Joy Ambogo Bulimwa v Contineo Technologies Limited & another [2019] KEELRC 25 (KLR)

Employment and Labour Relations Court
20 December 2019
OMOnesmus Makau
1,691 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled the termination unfair because the employer proved no valid reason and gave no hearing, awarding the employee over Kshs. 813,000.

What this practically means

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Executive summary

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The claimant, employed as a project officer – Kakuma at Kshs. 120,000 per month from 1.1.2015, sued after her employment was terminated by letter dated 5.4.2017, at the tail-end of her maternity leave, citing 'irreconcilable differences'. She sought declarations of unfair and unlawful termination, damages including constitutional damages for pregnancy-based discrimination, compensation, leave, relocation costs, service pay, a certificate of service, interest and costs. The respondents contended the termination followed clauses 15.1 and 15.3 of her contract, with one month's salary in lieu of notice, air fare reimbursement and moving expenses offered. The court framed three issues: unfairness/unlawfulness of the termination, violation of constitutional rights, and entitlement to reliefs. It found the respondents failed to prove a valid and fair reason, the cited 'irreconcilable differences' being unexplained and unsupported by any evidence, and that no hearing or prior notice was afforded, rendering the termination unfair and unlawful. However, the discrimination claim failed because the claimant worked until maternity leave and was not terminated before or during it, nor denied salary. The court awarded six months' salary as compensation (Kshs. 720,000), pro-rata leave of Kshs. 25,385, and Kshs. 70,000 relocation costs (reduced from Kshs. 115,000 for lack of evidence), totalling Kshs. 813,385 subject to statutory deductions. Service pay was refused on NSSF grounds. A certificate of service, costs and interest at court rates were granted.

Key legal issues

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01

Whether the termination was for a valid and fair reason

Holding

The respondents failed to prove a valid and fair reason; the cited reason of 'irreconcilable differences' was unexplained and unproved.

Reasoning

The employer cited 'irreconcilable differences' which was not explained to the claimant and which the court interpreted as incompatibility under section 45(2)(b). The respondents tendered no evidence to prove the validity of the reason, so the burden under section 45(2) was not discharged.

p. 2
02

Whether fair procedure was followed

Holding

No fair procedure was followed; the claimant was neither given prior notice nor a hearing before the termination was communicated.

Reasoning

The termination was communicated by emailed letter before any hearing was afforded. The court found it was a fact that no prior notice was given and the letter preceded any hearing, contrary to the procedural requirement in section 45.

p. 2
03

Whether the termination on account of pregnancy amounted to unlawful discrimination

Holding

The discrimination claim failed on the facts.

Reasoning

The claimant worked until she went on maternity leave and did not allege she was terminated before maternity leave or denied salary during it. The court found the discrimination claim overstretched and based on imagination.

p. 3

Legal principles established

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  • Termination is unfair if the employer fails to prove both a valid and fair reason and that fair procedure was followed, including a hearing.
  • A beneficiary of NSSF is disqualified from claiming service pay under section 35(6) of the Employment Act.

Court orders

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  1. 1.Judgment entered for the claimant against the respondents in the sum of Kshs. 813,385 comprising compensation of Kshs. 720,000, leave of Kshs. 25,385 and relocation costs of Kshs. 70,000, subject to statutory deductions
  2. 2.Issuance of a certificate of service to the claimant
  3. 3.Costs of the suit to the claimant
  4. 4.Interest at court rates from the date of judgment
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act (sections 41, 43, 45, 46, 49, 51 and 35(6))

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Joy Ambogo Bulimwa v Contineo Technologies Limited & another [2019] KEELRC 25 (KLR)", Case Analysis (2019). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/25/eng@2019-12-20

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.