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ELRCPartially AllowedEmployment Petition filed on 3rd September, 2018· [2019] KEELRC 64 (KLR)

Racheal Wanjiku Mwangi v Bidwood Suites Hotel Limited [2019] KEELRC 64 (KLR)

Employment and Labour Relations Court
19 December 2019
MOMaureen Onyango
3,188 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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A Kenyan court awarded a dismissed worker modest compensation for a flawed disciplinary process, but rejected her pregnancy discrimination claim for lack of evidence.

What this practically means

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Executive summary

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The Petitioner, formerly employed by the Respondent as a Laundry Attendant from November 2014 until her summary dismissal on 26th January 2017, petitioned the Employment and Labour Relations Court alleging that her dismissal, the withholding of her salary, and the refusal of her maternity leave application violated Articles 19, 27, 28, 31, 41 and 47 of the Constitution. She sought declarations of violation, terminal benefits and compensation totalling Kshs.913,349.85, and general damages of Kshs.3,000,000. The Respondent denied receiving any maternity leave application, contended the dismissal was for lateness and insubordination following due process, and argued the Petition was defective for lack of precision, relying on Anarita Karimi Njeru. The court framed three issues. First, it found the Petition fell short of the constitutional pleading threshold since the Petitioner merely listed provisions without specifying the infringing acts, and held the averments were contractual matters suited to an ordinary claim. Second, on discrimination, the court accepted clock-in logs showing habitual unexplained lateness and found the maternity leave letter was dated after separation; the dismissal was therefore justified and not discriminatory. Third, however, the court found the dismissal letter recorded a disciplinary hearing held before the show cause letter was issued, with no hearing thereafter, so the termination was procedurally unfair for want of a Section 41 hearing. The court awarded pay in lieu of notice of Kshs.21,269 and two months' salary compensation of Kshs.42,538, totalling Kshs.63,807, dismissed all other prayers, and awarded the Petitioner costs of the petition. Judgment was delivered at Nairobi on 19th December 2019 by Maureen Onyango, J.

Key legal issues

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01

Whether the Petition met the constitutional litigation threshold

Holding

It did not; the Petitioner failed to plead with precision which act violated which provision, and the dispute was essentially contractual

Reasoning

The court applied the Anarita Karimi Njeru rule as restated in Mumo Matemo, finding the Petitioner merely listed constitutional provisions against the termination without specifying the infringing acts under each provision, and held the matter was adequately addressable in an ordinary employment claim.

p. 4
02

Whether the Petitioner was discriminated against on account of pregnancy

Holding

No; the Respondent had valid reasons of lateness and insubordination for the summary dismissal

Reasoning

Clock-in logs showed habitual lateness with no explanation, and the Petitioner failed to respond to the show cause letter. The maternity leave application could not have been submitted as alleged since the letter was dated 16th June 2017, after she had left employment, and she was not due for maternity leave until March 2017.

p. 5
03

Whether the termination was procedurally fair

Holding

No; the procedure was flawed as the disciplinary hearing appeared to precede the show cause letter and no hearing followed the failure to respond

Reasoning

The summary dismissal letter dated 19th January 2017 recorded a disciplinary hearing on the same date the show cause was allegedly issued, an inversion of the proper sequence. There was no evidence of a hearing after the failure to respond to the notice, hence non-compliance with Section 41 of the Employment Act.

p. 5
04

What reliefs flow from procedural unfairness

Holding

One month's pay in lieu of notice (Kshs.21,269) and compensation of two months' salary (Kshs.42,538), totalling Kshs.63,807

Reasoning

Having found the termination procedurally unfair for want of a hearing under Section 41, the court awarded pay in lieu of notice and modest compensation, noting the Petitioner had already received Kshs.2,740 as acknowledged terminal dues.

p. 5

Legal principles established

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  • A constitutional petition must set out with reasonable precision the complaint, the provisions said to be infringed, and the manner of infringement (Anarita Karimi Njeru principle)
  • Termination without compliance with the hearing requirement of Section 41 of the Employment Act is procedurally unfair

Court orders

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  1. 1.Payment in lieu of notice in the sum of Kshs.21,269
  2. 2.Compensation equivalent to 2 months' salary in the sum of Kshs.42,538
  3. 3.Total award of Kshs.63,807.00 to the Petitioner
  4. 4.All other prayers dismissed
  5. 5.Petitioner to have costs of the petition

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 19, 23(3), 27, 28, 31, 41, 47(2), 159
  • Employment Act, 2007Sections 5(2), 5(3)(a), 29(1) and (2), 41, 43(1), 44, 45
  • ILO Convention No. 183 of 2000Employment Protection & Non-discrimination
  • Civil Procedure Act (Cap 21)Sections 1A and 1B
  • Appellate Jurisdiction Act (Cap 9)Sections 3A and 3B

Cases cited (15)

  • Mary Chemweno Kiptui Vs Kenya Pipeline Company Limited
    (2014) eKLR
  • GMV Vs Bank of Africa Kenya Limited
    (2013) eKLR
  • Janine Buss Vs Gems Cambridge International School Limited
    (2016) eKLR
  • Tracy Wangechi Mugambi Vs Windsor Golf Hotel and Country Club
    (2019) eKLR
  • Daniel Musinga T/A Musinga & Co. Advocates Vs Nation Newspapers Limited
    (2006) eKLR
  • Anarita Karimi Njeru Vs Republic (No. 1)
    (1979) 1 KLR 154; (1976-1980) 1 KLR 1272
  • David Ramogi and 4 Others Vs The Cabinet Secretary, Ministry of Energy and Petroleum and 7 Others
    (2017) eKLR
  • Vincent Mboga Machogu Vs Vision Institute of Professionals
    (2015) eKLR
  • Alnashir Popat and 8 Others Vs Capital Markets Authority
    (2016) eKLR
  • Lillian Khayere Vs New Day Academy
    (2017) eKLR
  • Vincent Abuya Obunga Vs Mast Rental Services Limited
    (2019) eKLR
  • Jasper Mwenda Ikiara Vs Housing Finance Limited
    (2015) eKLR
  • National Bank of Kenya Limited Vs Pipe Plastic Samkolit (K) Limited & Another
    (2001) eKLR
  • Morgan Air Cargo Limited Vs Evrest Enterprises Limited
    (2014) eKLR
  • Mumo Matemo v Trusted Society of Human Rights Alliance
    [2013] eKLR
Jurisdiction invoked
Constitution of Kenya, 2010, Articles 19, 23, 27, 28, 31, 41 and 47; Employment Act, 2007 (Sections 5, 29, 41, 43, 44, 45)

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, "Racheal Wanjiku Mwangi v Bidwood Suites Hotel Limited [2019] KEELRC 64 (KLR)", Case Analysis (2019). Employment Petition filed on 3rd September, 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/64/eng@2019-12-19

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