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ELRCAllowedPetition dated 14th February, 2019, filed 19th March, 2019· [2021] KEELRC 1 (KLR)

Mokaya v Kithure Kindiki t/a Kithure Kindiki & Associates (Petition 62 of 2019) [2021] KEELRC 1 (KLR)

Employment and Labour Relations Court
30 September 2021
MNMathews N. Nduma
3,717 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court ruled that firing a woman for being pregnant is discrimination, awarding her over Kshs 2.2 million in damages and costs.

What this practically means

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Executive summary

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The petitioner, a former pupil and then Associate II advocate of the respondent law firm, petitioned the Employment and Labour Relations Court claiming that her employment was terminated on 1st March 2018 because she was pregnant and had insisted on her statutory three months' paid maternity leave, contrary to section 5(3)(a) of the Employment Act, 2007 and articles 27, 41 and 47 of the Constitution. She sought declarations of discrimination and unfairness, exemplary damages, salary for the unexpired contract period, interest and costs. The respondent, through replying affidavits of its Director of Finance, Administration and Strategy and of the advocate hired to replace her, denied pregnancy-based discrimination, asserted financial constraints, and contended that the petitioner never applied for or was approved maternity leave and that no redundancy had occurred. The court framed three issues: discrimination, lawfulness of the termination, and entitlement to reliefs. It found that the Chairman who wrote the termination letter did not respond to the petitioner's sworn allegations; the financial-hardship evidence predated her employment; the respondent immediately replaced her; and no section 40 redundancy procedure was followed. The court declared the termination discriminatory, unfair and unlawful, awarded six months' salary (Kshs 552,894), Kshs 129,008.60 for untaken leave, one month's salary in lieu of notice (Kshs 92,149), and exemplary damages of Kshs 1,500,000, totalling Kshs 2,274,051.60, plus a certificate of service within 30 days, interest from judgment, and costs to the petitioner.

Key legal issues

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01

Discrimination on grounds of pregnancy

Holding

The petitioner proved on a balance of probabilities that the termination was on account of her pregnancy, violating section 5(3)(a) of the Employment Act and article 27(4) of the Constitution

Reasoning

The petitioner deposed that after notifying the respondent of her pregnancy and approved maternity leave, the Chairman rescinded the paid leave offer, pressed her to take unpaid leave, and terminated her when she insisted on her statutory entitlement. The Chairman, who wrote the termination letter, swore no affidavit to refute these depositions, and Mpuria did not lay a basis for his knowledge of the meetings. The termination letter was dated days before the maternity leave was to commence, and the respondent immediately replaced the petitioner.

p. 8
02

Whether the termination was a lawful redundancy for financial constraints

Holding

The financial-constraints defence was untenable; the respondent neither declared redundancy nor complied with section 40 of the Employment Act

Reasoning

The respondent relied on 2016 correspondence predating the petitioner's employment and produced no evidence of financial constraints in 2017–2018. No one month notice of redundancy was given to the petitioner or the Labour Officer, no severance pay, leave pay or notice pay was given, and the respondent hired a replacement advocate immediately, contradicting the claim of inability to pay.

p. 9
03

Entitlement to exemplary damages and compensation

Holding

The petitioner was awarded six months' salary compensation under section 49(1)(c) and (4) of the Employment Act plus Kshs 1,500,000 exemplary damages for the constitutional violation

Reasoning

The court applied the jurisprudence in VMK v CUEA and Daniel Musinga v Nation Newspapers on measuring damages for injury to feelings, considered the petitioner's loss of nine months of livelihood at her hour of need, the respondent's egregious and aggravating conduct, her two years of faithful service and non-contribution to the termination, and the precedent upholding twelve months' compensation for unfair termination.

p. 10

Legal principles established

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  • Terminating an employee's employment on account of her pregnancy violates section 5(3)(a) of the Employment Act, 2007 read with article 27(4) of the Constitution
  • An employee who was serving at the time she was due for maternity leave remains entitled to paid maternity leave despite unlawful termination
  • The primary onus of proving alleged facts lies with the claimant or petitioner under sections 107 and 108 of the Evidence Act

Court orders

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  1. 1.Equivalent of six (6) months compensation for unlawful and unfair termination of employment in the sum of Kshs 552,894
  2. 2.Kshs 129,008.60, in lieu of untaken leave days
  3. 3.One month salary in lieu of notice – Kshs 92,149
  4. 4.Exemplary damages for violation of the petitioner's rights in the sum of Kshs 1,500,000
  5. 5.Total award of Kshs 2,274,051.60
  6. 6.Certificate of service to be provided within 30 days of judgment
  7. 7.Interest at court rates from date of judgment till payment in full
  8. 8.Costs of the suit to the petitioner

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 22, 23, 24, 25, 26, 27, 41, 47 and 260
  • Employment Act, 2007Sections 5(3)(a), 40, 49(1)(c) and (4)
  • Fair Administrative ActSections 2, 3(c), 4(3) and 4(4)
  • Evidence Act, Cap 80 Laws of KenyaSections 107 and 108

Cases cited (3)

  • VMK v CUEA
    Industrial Court at Nairobi, Cause No 1161 of 2020
  • Daniel Musinga t/a Musinga & Co Advocates v Nation Newspapers Limited
    [2000] eKLR
  • Kenfright (EA) Limited v Benson K Nguti
    [2019] eKLR
Jurisdiction invoked
Articles 22, 23, 24, 25, 26, 27 and 41 of the Constitution of Kenya, 2010 read with the Employment Act, 2007

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Mokaya v Kithure Kindiki t/a Kithure Kindiki & Associates (Petition 62 of 2019) [2021] KEELRC 1 (KLR)", Case Analysis (2021). Petition dated 14th February, 2019, filed 19th March, 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1/eng@2021-09-30

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