Caroline Nyokabi Mwangi v Achellis Kenya Limited [2021] KEELRC 788 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether termination of a probationary employee is exempt from procedural fairness
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.
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.
Whether the claimant was discriminated against on account of her pregnancy
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.
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.
Whether the claimant was subjected to unfair labour practices
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).
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.
What remedies avail
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.
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.
Legal principles established
#- 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
#- 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.Compensatory damages of Kshs 1,100,000/= equivalent to 10 months gross salary
- 3.Three months' gross salary for the maternity leave period, Kshs 330,000/=
- 4.Total award of Kshs 1,430,000/=
- 5.Costs of the suit to the claimant
- 6.Interest on the total award at court rates from the date of judgment till payment in full
- 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
#Practical implications
#Frequently asked questions
#Later judgments citing this (3)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Mwongera v Compassion International Kenya (Cause 1489 of 2018) [2024] KEELRC 1226 (KLR)[2024] KEELRC 1226 (KLR)22 Jan 2024applied
- Omudeck v Oshwal Education and Relief Board (Cause 1958 of 2017) [2022] KEELRC 1415 (KLR)[2022] KEELRC 1415 (KLR)16 May 2022
- Caroline Mueni Mbithi v Muri Mwaniki & Wamiti Advocates [2021] KEELRC 134 (KLR)[2021] KEELRC 134 (KLR)17 Dec 2021
Cite this brief
#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.