Lucy Wanjiru Nyaga v Batiment Group Limited [2019] KEELRC 1317 (KLR)
The bottom line
#A Kenyan court ruled an employer unfairly fired a pregnant employee and awarded her Kshs. 1.39 million, but she lost maternity pay for skipping the required notice.
What this practically means
#Executive summary
#Key legal issues
#Entitlement to maternity leave
The Petitioner was not entitled to maternity leave pay as she did not comply with Section 29(4) notice requirement
Section 29(1) grants 3 months' maternity leave with full pay, but Section 29(4) conditions the right on not less than 7 days' notice of intention to proceed on maternity leave on a specific date and to return to work. The Petitioner's evidence gave inconsistent dates and did not show notice of a specific return date. The Court held the basic statutory precondition was not met, so no maternity leave pay and no finding of discrimination through denial of maternity leave.
Pregnancy discrimination
The termination constituted discrimination on account of pregnancy under the Constitution
The termination letter cited failure to disclose 'pertinent facts', which the Petitioner established referred to her pregnancy. Disclosure of pregnancy was not shown to be a recruitment requirement. Once a prima facie case was established, the burden shifted to the Respondent, which failed to show a legitimate explanation. The reason given in the termination letter itself established pregnancy discrimination, justifying constitutional damages.
Unfair termination
Termination was unfair; compensation of 2 months' salary awarded
The Respondent did not establish a valid reason: the 'pertinent issues' were unparticularised, allegations of failure to meet Management expectations were unparticularised and the Petitioner was never heard on them. Termination failed the statutory standards of fairness under the Employment Act. Considering her 9 months of service and the constitutional damages already granted, 2 months' salary was awarded instead of the sought 12 months.
Probationary status
The Petitioner was no longer on probation at the time of termination
Her 6-month probation lapsed at the end of August 2017; no letter extended probation or confirmed regular employment. The Court agreed she was past the probationary contract when terminated, so she held a permanent position under the contract.
Legal principles established
#- There is no general legal requirement for, or prohibition against, pregnancy disclosure at the time of employment; an employer relying on non-disclosure of pregnancy must show it was a communicated recruitment requirement
- Once an employee establishes a prima facie case of discrimination, the burden shifts to the employer to show a legitimate explanation for termination
- An employee who gives birth and immediately informs the employer of maternity leave without prior specific-date notice does not satisfy the statutory condition for maternity leave benefits
Court orders
#- 1.It is declared that the Respondent discriminated against the Petitioner on account of the Petitioner's pregnancy
- 2.It is declared that termination of the Petitioner's contract was unfair
- 3.The Respondent shall pay damages for pregnancy discrimination at Kshs. 1,250,000
- 4.The Respondent shall pay notice pay at Kshs. 30,000
- 5.The Respondent shall pay salary arrears at Kshs. 30,000
- 6.The Respondent shall pay pro-rata leave at Kshs. 20,898
- 7.The Respondent shall pay equivalent of 2 months' salary in compensation for unfair termination at Kshs. 60,000 – total Kshs. 1,390,898
- 8.Certificate of Service to issue
- 9.Costs to the Petitioner
- 10.Interest at 14% per annum from the date of Judgment until payment in full
- Jurisdiction invoked
- Petition under the Constitution; damages sought under Article 23 of the Constitution and unfair termination under the Employment Act, 2007
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Lucy Wanjiru Nyaga v Batiment Group Limited [2019] KEELRC 1317 (KLR)", Case Analysis (2019). Petition No 34 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1317/eng@2019-06-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.