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ELRCPartially AllowedCause No 963 of 2017· [2021] KEELRC 788 (KLR)

Caroline Nyokabi Mwangi v Achellis Kenya Limited [2021] KEELRC 788 (KLR)

Employment and Labour Relations Court of Kenya
8 October 2021
5,220 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~21 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ruled that even probationary employees are protected from unfair termination and pregnancy discrimination, awarding the employee Kshs 1.43 million.

What this practically means

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Executive summary

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The claimant, employed as a Human Resources Administrator by the respondent from 2 November 2015 on a probationary contract, was terminated by letter dated 25 April 2016 - the very day she delivered her baby by emergency caesarean section and the effective commencement date of her maternity leave. She sued for declarations of unfair termination, pregnancy discrimination and unfair labour practices, together with damages. The court framed four issues: unfairness of the probationary termination, pregnancy discrimination, unfair labour practices, and remedies. On unfairness, the court held that section 42(1) of the Employment Act, which ousts the section 41 hearing requirements for probationary contracts, predates the 2010 Constitution and must be interpreted in light of Articles 41(1) and 27(1); following Monica Munira Kibuchi, Evans Kiage Onchwari and Mercy Njoki Karingithi, the court held that probationary employees retain the right not to be unfairly terminated and that employers must prove valid and fair reasons under sections 43(1) and 45(2). The termination letter gave no reasons, so the termination was unfair. On discrimination, applying the four criteria in GMV v Bank of Africa, the claimant established a prima facie case; the poor-performance defence was unsupported by any appraisal or mention in the termination letter and was found pretextual, the real reason being her pregnancy. The court also found the manner and timing of the termination amounted to unfair labour practices under Article 41(1). General damages of Kshs 5,000,000 were declined; the court instead awarded compensatory damages of 10 months' gross salary (Kshs 1,100,000) under section 49(1)(c), plus three months' maternity leave pay (Kshs 330,000) under section 29(1), totaling Kshs 1,430,000, with costs and interest at court rates from judgment.

Key legal issues

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01

Whether termination of a probationary employee is exempt from procedural fairness

Holding

The court found section 42(1) must be interpreted consistently with Articles 41(1) and 27(1) of the Constitution; probationary employees retain the right not to be unfairly terminated and the employer must prove valid and fair reasons.

Reasoning

The court adopted precedents, including Monica Munira Kibuchi (which declared section 42(1) unconstitutional to the extent it excludes probationary employees from section 41) and Mercy Njoki Karingithi, holding that an employment relationship with full legal obligations exists during probation. Since section 42(1) predates the 2010 Constitution, it had to be read in light of constitutional protections. The termination letter gave no reasons, and section 43(1) and 45(2) contain no probationary carve-out, so the termination was unfair.

p. 4
02

Whether the claimant was discriminated against on account of her pregnancy

Holding

Yes. Applying the GMV v Bank of Africa criteria, the claimant established a prima facie case of pregnancy discrimination and the respondent failed to discharge the burden under section 5(6) of proving a non-discriminatory reason.

Reasoning

The claimant belonged to a protected class (pregnant women safeguarded by Article 27(4), sections 5(3) and 46(a) of the Employment Act and ILO Convention 183); she was qualified and competent; she suffered adverse action on the very day her maternity leave commenced; and no plausible non-discriminatory explanation was offered or evidenced. The poor-performance assertion was unsupported by any appraisal, report or mention in the termination letter and was found pretextual.

p. 6
03

Whether the claimant was subjected to unfair labour practices

Holding

Yes. The nature and timing of the termination - delivered by a rider while the claimant lay recuperating in hospital after an emergency caesarean section - amounted to unfair labour practices contrary to Article 41(1).

Reasoning

Article 41(1) guarantees fair labour practices though the term is undefined, so each case turns on its circumstances. Here the claimant was terminated on the day she delivered, with no reasons given, leaving her unprotected at her moment of greatest need. The court found the conduct unjustified and cruel, constituting unfair labour practices.

p. 6
04

What remedies avail

Holding

General damages of Kshs 5,000,000 declined; compensatory damages of 10 months' gross salary (Kshs 1,100,000) under section 49(1)(c) plus 3 months' maternity leave pay (Kshs 330,000) under section 29(1) awarded.

Reasoning

Following NEC Corporation v Samuel Gitau Njenga, not every violation deserves a separate award of damages. The 10-month award reflected the inhumane manner of termination and the unfair labour practices. Maternity leave pay was due because the termination took effect on the first day of maternity leave, when the right to full pay under section 29(1) had accrued.

p. 6

Legal principles established

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  • Section 42(1) of the Employment Act must be read in light of Articles 41(1) and 27(1) of the Constitution; a probationary employee retains the right not to be unfairly terminated and the employer remains bound to prove valid and fair reasons for termination.
  • Section 43(1) and 45(2) of the Employment Act apply to probationary employees; failure to prove reasons renders termination unfair.
  • In pregnancy discrimination claims, the burden rests on the employer under section 5(6) of the Employment Act once the claimant establishes a prima facie case.

Court orders

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  1. 1.Declaration that the Claimant's termination by the Respondent was on account of her pregnancy, hence discriminatory, unfair, unlawful, and in violation of Articles 41(1) and 27(5) of the Constitution, sections 5(3) and 46(a) of the Employment Act 2007 and ILO Convention No. 183 of 2000 on Maternity Protection
  2. 2.Compensatory damages of Kshs 1,100,000/= equivalent to 10 months gross salary
  3. 3.Three months' gross salary for the maternity leave period, Kshs 330,000/=
  4. 4.Total award of Kshs 1,430,000/=
  5. 5.Costs of the suit to the claimant
  6. 6.Interest on the total award at court rates from the date of judgment till payment in full

Authorities

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Legislation

  • Employment Act, 2007section 5(3)
  • Employment Act, 2007section 5(6)
  • Employment Act, 2007section 29(1)
  • Employment Act, 2007sections 41(1) and 42(1)
  • Employment Act, 2007sections 43(1) and 45(1),(2)
  • Employment Act, 2007sections 46(a), 46(g) and 49(1)(c)
  • Constitution of Kenya, 2010Articles 24, 27(1), 27(4), 27(5), 41(1) and 47
  • Constitution of Kenya, 2010Articles 48 and 159(2)(d)
  • ILO Maternity Protection Convention No. 183 of 2000Articles 8(1) and 8(2)
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B

Cases cited (13)

  • Ako vs Abson Motors Limited
    (2021) eKLR
  • Janine Buss vs Gems Cambridge International School Ltd
    (2016) eKLR
  • Michael Madara Ogot vs Maseno University
    (2017) eKLR
  • Yvonne Achitsa Oderere vs Maseno University
    (2017) eKLR
  • Judy Wacera Njau vs Belladona Pharmacy Ltd
    (2019) eKLR
  • Monica Munira Kibuchi & 6 others vs Mount Kenya University
    ELRC Petition No. 94 of 2016; (2021) eKLR
  • John Mathiu vs Mastermind Tobacco (K) Ltd
    (2018) eKLR
  • Danish Jalango vs Amicabre Travel Services
    (2014) eKLR
  • GMV vs Bank of Africa Limited
    (2013) eKLR
  • Evans Kiage Onchwari vs Ambassadeur Nairobi
    Nairobi Cause No 1886 of 2014
  • Mercy Njoki Karingithi v Emerald Hotels Resorts & Lodges Ltd
    [2014] eKLR
  • Jane Samba Mukala v Ol Tukai Lodge Limited
    Industrial Cause Number 823 of 2010
  • NEC Corporation v Samuel Gitau Njenga
    [2018] eKLR
Jurisdiction invoked
Employment and labour relations jurisdiction over a claim of unfair termination and pregnancy discrimination under the Employment Act, 2007 and Articles 27 and 41 of the Constitution

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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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, "Caroline Nyokabi Mwangi v Achellis Kenya Limited [2021] KEELRC 788 (KLR)", Case Analysis (2021). Cause No 963 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/788/eng@2021-10-08

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