Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCPartially AllowedPetition (ELRC, Nairobi)· [2020] KEELRC 911 (KLR)

Rosemary Akinyi Kijana v Nairobi City Water and Sewerage Company Limited [2020] KEELRC 911 (KLR)

Employment and Labour Relations Court
22 May 2020
RSRadido Stephen
2,033 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

#

A Kenyan court awarded a former director over Kshs 11 million because her employer ended her job without giving reasons or a hearing.

What this practically means

#

Executive summary

#
The Petitioner, employed as Director, Human Resource & Administration by the Respondent from 3 September 2012 under a fixed-term contract amended in February 2013 to a 5-year term, petitioned the Employment and Labour Relations Court alleging discrimination on grounds of ethnicity (Luo) and ill-health, and violation of human dignity and fair labour practices after the Respondent's Board discontinued her services on 17 August 2017 with 3 months' pay in lieu of notice, shortly after the Board had intimated a 6-month renewal. The Respondent did not attend the hearing; its application to arrest judgment was declined, and an out-of-time further affidavit was disregarded. The Court found the discrimination and dignity claims unproved: the alleged acts fell short of the legal threshold, no expert medical evidence linked her illness to the alleged conduct, the alleged discriminators were not joined, and she never invoked the grievance machinery she headed. However, the termination was held unfair and an unfair labour practice, since the contract had about a month to run and no reasons were given nor opportunity to be heard afforded, contrary to sections 41, 43 and 45 of the Employment Act. The Court declared a breach of contract, awarding 10 months' gross salary (Kshs 6,963,600/-) as compensation and 6 months' salary (Kshs 4,178,160/-) as lost income under contract clauses 8, 9 and 10, totalling Kshs 11,141,760/-. Gratuity for the never-served renewed contract and the wider 5-year lost income claim were declined. The Petitioner was awarded costs. Judgment delivered on 22 May 2020 by Radido Stephen, Judge.

Key legal issues

#
01

Discrimination on grounds of ethnicity and disability

Holding

Not proved; the acts alleged did not meet the legal threshold for discrimination

Reasoning

The Petitioner's assertions — irregular recruitment of the Human Resources Manager, use of Kikuyu in private meetings, bypassing her in recruitment and reporting lines — lacked corroboration or linkage to her ethnicity or health. She, as custodian of the HR policy, never raised the discrimination formally or informally with the Board, and produced no expert medical evidence linking her illness to the alleged harassment.

p. 2
02

Fairness of the discontinuation of employment

Holding

Termination was unfair and an unfair labour practice; the contract had not lapsed by effluxion of time and no reasons or hearing were given

Reasoning

The Respondent ended the fixed-term contract about a month before it ran out, relying on pay in lieu of notice. Under sections 41, 43 and 45 of the Employment Act, reasons and a hearing are mandatory. Since ill-health was suspected, failure to give reasons made the termination probable discriminatory in motivation and an unfair labour practice.

p. 3
03

Breach of contract and quantum

Holding

Breach established; 6 months' salary as lost income plus 10 months' gross salary compensation awarded; gratuity declined

Reasoning

Contract clauses 8, 9 and 10 entitled the Petitioner to 6 months' salary for premature loss of employment. Given 5 years of service and the Board's assurance of a 6-month renewal, 10 months' gross salary was fair compensation. Gratuity for a not-yet-served renewed contract was declined.

p. 3

Legal principles established

#
  • An employer terminating on grounds of poor performance, misconduct or incapacity must afford the employee an opportunity to make representations and give reasons
  • Termination with notice or pay in lieu without reasons is no longer lawful under the current legal framework
  • Proof of disability under the Persons with Disability Act requires more than a medical report

Court orders

#
  1. 1.Declaration that the Petitioner did not prove violations of rights to equality and freedom from discrimination or human dignity
  2. 2.Declaration that the discontinuation of the Petitioner's employment was unfair
  3. 3.Declaration that the Respondent was in breach of contract
  4. 4.Award of compensation equivalent to 10 months' gross salary of Kshs 6,963,600/-
  5. 5.Award of lost income of Kshs 4,178,160/- (6 months' salary under clauses 8, 9 and 10 of the contract)
  6. 6.Total award of Kshs 11,141,760/-
  7. 7.Petitioner awarded costs

Authorities

#

Legislation

  • Constitution of Kenya, 2010Article 27
  • Constitution of Kenya, 2010Article 28
  • Employment Act, 2007sections 41, 43, 45
  • Persons with Disability Actnot specified
  • United Nations Convention on Rights of Persons with Disability and Optional Protocolnot specified
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under Article 162(2) of the Constitution (petition alleging discrimination and unfair labour practices in employment)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Rosemary Akinyi Kijana v Nairobi City Water and Sewerage Company Limited [2020] KEELRC 911 (KLR)", Case Analysis (2020). Petition (ELRC, Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/911/eng@2020-05-22

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