Christine Njeri Githiri v Anne Waithera Kimotho t/a Cosec Associates [2019] KEELRC 1685 (KLR)

Employment and Labour Relations Court

30 April 2019

HWHellen Wasilwa

1,026 words in judgment

View original judgment Read on Kenya Law Watch case

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The bottom line

A Kenyan court dismissed a pregnancy discrimination claim because the employee couldn't prove she was actually employed.

What this practically means

Executive summary

The Claimant sued through Okubasu & Munene Advocates seeking damages for wrongful, illegal and unfair dismissal. She alleged she was employed orally on 1st August 2015 as an associate advocate earning a net salary of Kshs 100,000 per month, and that on 22nd May 2017, when she was due to proceed on maternity leave, she was told her services were no longer required without reasons or a hearing. She claimed the termination was discriminatory on account of pregnancy contrary to Article 27(5) of the Constitution and section 5(3) of the Employment Act, and sought declarations, compensation including 12 months' salary, maternity leave pay, notice pay, leave pay, general damages, costs and interest. The Respondent entered appearance in person on 17th August 2018 but filed no defence and did not participate in the hearing, and the matter proceeded ex parte. The court found that although the alleged contract was oral, the Claimant could have proved the employment relationship through sample work or evidence of remuneration flowing from the Respondent, but failed to do so, and called no witness. The court held the Claimant failed to prove the employment relationship, found the claim not proved, and dismissed it with no order as to costs.

Key legal issues

Proof of employment relationship

Holding

The Claimant did not prove the alleged oral contract of employment or any remuneration flowing from the Respondent, and called no witness; the claim was therefore not proved

Reasoning

Although unchallenged by any defence, the claim proceeded ex parte and the Claimant still bore the burden of proving her case. Her own evidence disclosed only an oral contract as an associate for two years, but she produced no sample work, no evidence of payment or remuneration from the Respondent, and no witness. Without proof of the employment relationship, the claims for unfair termination, discrimination on account of pregnancy, maternity leave and notice pay could not stand.

p. 2

Legal principles established

A claimant asserting an oral employment contract must adduce evidence proving the employment relationship, such as proof of work done and payment of remuneration; failure to do so is fatal to the claim even where the respondent does not defend it

Court orders

1.The claim is dismissed with no order as to costs

Authorities

Legislation

Constitution of Kenya, 2010Article 27(5)
Constitution of Kenya, 2010Article 41(1)
Employment Act No. 11 of 2007section 5(3)
Employment Act No. 11 of 2007section 29(2)
Employment Act No. 11 of 2007sections 43, 45 and 46

Cases cited (1)

Claudine Wanjiku Mboce Vs Exon Investments Limited & Another
(2017) eKLR

Jurisdiction invoked: Employment and labour relations jurisdiction (claims for unfair termination under the Employment Act); no specific constitutional provision invoked as source of jurisdiction

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Christine Njeri Githiri v Anne Waithera Kimotho t/a Cosec Associates [2019] KEELRC 1685 (KLR)", Case Analysis (2019). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1685/eng@2019-04-30

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