Mercy Gakii Nabea v Malindi Management Strategy Limited [2019] KEELRC 2302 (KLR)
The bottom line
#A Kenyan court ruled that terminating an employee on maternity leave through flawed redundancy cost the employer over Kshs. 669,000 in damages.
What this practically means
#Executive summary
#Key legal issues
#Whether the termination on account of redundancy complied with Section 40(1) of the Employment Act
The termination was unlawful and unfair: no prior redundancy notice was issued, no selection criteria were disclosed, and the purported appraisal was not proved or participatory.
Apart from the termination letter, there was no evidence of prior redundancy notice. The Respondent did not lay before the Court the selection criteria, and the claimed appraisal report was never tabled nor was the Claimant a participant. An employer relying on redundancy must go through the rigours of Section 40(1), including the two distinct notices settled by the Court of Appeal.
Whether the termination amounted to discrimination on account of pregnancy
Yes. The termination during maternity leave, the requirement to serve notice while on leave, and the timing during gestation amounted to pregnancy discrimination, which the Respondent failed to disprove.
Section 5(2) and (3) of the Employment Act and Article 27 of the Constitution prohibit discrimination on grounds of pregnancy. Under Section 5(6) the burden of disproving discrimination lies on the employer. The Respondent failed to discharge that burden, and its actions denied the Claimant the right to resume duty after maternity leave contrary to Section 29(2) and ILO Maternity Protection Convention No. 183.
What remedies are due
Twelve months' salary in compensation for unfair termination, Kshs. 500,000 damages for discrimination, and one month's salary in lieu of notice were awarded; the maternity leave, underpayment and severance claims failed.
The compensation award took into account length of service and the Respondent's callous conduct. Discrimination damages accounted for the blatant violation of maternity rights, mitigated by the common cadre nature of the job. Severance was admitted but the effective date of employment was fixed at 1st June 2009, and the maternity leave and underpayment claims failed for admission and want of proof respectively.
Legal principles established
#- In every redundancy situation there are two separate and distinct notices of not less than a month each: a general notice and an individual termination notice.
- An employer alleging poor performance as redundancy justification must involve the employee in the appraisal and allow them reasonable time to improve.
- Under Section 5(6) of the Employment Act, the burden of disproving an allegation of discrimination lies with the employer.
- Maternity leave and the notice period are separate and distinct rights; an employee cannot be required to serve a redundancy notice while on maternity leave.
Court orders
#- 1.Judgment entered in favour of the Claimant for 12 months' salary in compensation of Kshs. 156,372
- 2.Damages for discrimination of Kshs. 500,000 awarded to the Claimant
- 3.1 month's salary in lieu of notice of Kshs. 13,031 awarded to the Claimant
- 4.Total judgment of Kshs. 669,403 with interest at court rates from the date of judgment until payment in full
- 5.The Claimant awarded the costs of the case
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 and the Constitution of Kenya, 2010 (Article 27), first-instance claim
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Antonina Chebet v Pure Circle Kenya Limited [2021] KEELRC 869 (KLR)[2021] KEELRC 869 (KLR)30 Sept 2021
- Felix Mwalimu v Nairobi Safari Club [2020] KEELRC 1018 (KLR)[2020] KEELRC 1018 (KLR)21 May 2020
Cite this brief
#Cite this brief
Caselaw, "Mercy Gakii Nabea v Malindi Management Strategy Limited [2019] KEELRC 2302 (KLR)", Case Analysis (2019). Cause No 40 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/2302/eng@2019-02-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.