Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCPartially AllowedPetition dated 24th April, 2019 (ELRC, Naivasha)· [2021] KEELRC 1948 (KLR)

Millicent Nyambura Njoroge v Flamingo Horticulture (K) Limited [2021] KEELRC 1948 (KLR)

Employment and Labour Relations Court
18 March 2021
6,317 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~25 min to read original · ~4 min brief

The bottom line

#

Kenya's Employment Court confirmed that retrenching an employee on maternity leave without proper notice and clear selection criteria is unfair and discriminatory.

What this practically means

#

Executive summary

#
The petitioner, a security guardette employed since 2012, sued Flamingo Horticultural Kenya Limited alleging that her termination on account of redundancy on 27th July 2016, while she was on maternity leave due to end on 15th August 2016, was wrongful, unfair and discriminatory on grounds of pregnancy, contrary to Articles 27(5) and 41(1) of the Constitution and sections 5, 29 and 40 of the Employment Act. She sought declarations, twelve months' salary, unpaid maternity leave, leave pay, general damages of Kshs. 3,000,000, costs and interest. The respondent maintained that the redundancy was driven by escalating operational costs affecting 265 employees, that the 'last in first out' criterion was applied, that terminal dues were paid and accepted in full and final settlement, and that payment in lieu of notice cured any failure to issue the section 40 notice. At the viva voce hearing the petitioner testified that she was targeted and that the unpaid leave was never taken. The court framed three issues: fairness of the redundancy, breach of constitutional rights by terminating during maternity leave, and remedies. It found that the redundancy took effect immediately without notice, contrary to section 40(1)(b), and that the respondent failed to explain the selection criteria, rendering the redundancy unfair under section 45(2). Relying on ILO Maternity Protection Convention No. 183, the court held that termination during maternity leave is prohibited unless the employer proves grounds unrelated to the maternity, and found the petitioner was discriminated against and targeted because of her maternity leave. The court awarded Kshs. 12,000 for unpaid maternity leave, ten months' salary (Kshs. 120,000) for the unfair redundancy, and Kshs. 1,000,000 general damages for discrimination, with costs and interest.

Key legal issues

#
01

Procedural fairness of the redundancy under section 40(1) of the Employment Act

Holding

The redundancy was unfair because no notice was given to the petitioner and the selection criteria were not explained

Reasoning

The termination letter of 27th July 2016 took effect immediately, showing no notice was issued. Payment of one month's salary in lieu of notice does not substitute for the notice required under section 40(1)(b), which elicits consultation on justifiability. The employer also bears the burden of proving compliance and did not demonstrate the criteria used to select the petitioner.

p. 8
02

Discrimination on account of pregnancy/maternity leave

Holding

Declaring the petitioner redundant during maternity leave without following procedure amounted to discrimination

Reasoning

Relying on ILO Maternity Protection Convention No. 183, the court held that maternity leave is a protected period and termination during it is prohibited unless the employer proves grounds unrelated to pregnancy. Since the respondent gave no notice, did not consult, and failed to establish selection criteria, it could not prove the redundancy was genuine and unrelated to the maternity, so discrimination was established.

p. 9
03

Remedies for unfair and discriminatory redundancy

Holding

Petitioner awarded unpaid maternity leave pay, 10 months' salary compensation and general damages of Kshs. 1,000,000

Reasoning

Having found the termination unfair and discriminatory, the court exercised discretion to compensate the petitioner, granting one month unpaid maternity leave, ten months' salary as compensation for the unfair redundancy, and general damages for discrimination on account of maternity leave, with costs and interest.

p. 9

Legal principles established

#
  • An employer who fails to give the notice required under section 40(1) of the Employment Act and fails to demonstrate the selection criteria used carries out an unfair and unjustifiable redundancy.
  • Termination of a woman during maternity leave is prohibited and the burden rests on the employer to show the termination is unrelated to the maternity.
  • A redundancy effected without procedure during maternity leave is discriminatory.

Court orders

#
  1. 1.Award of one month unpaid maternity leave at Kshs. 12,000
  2. 2.Award of 10 months' salary as compensation for the unfair redundancy, being Kshs. 120,000
  3. 3.Award of general damages for discrimination on account of maternity leave of Kshs. 1,000,000
  4. 4.Respondent to pay costs of the suit plus interest at court rates from the date of judgment

Authorities

#

Legislation

  • Constitution of Kenya, 2010Article 27(5); Article 41(1)
  • Employment Act, 2007Sections 5, 29, 40(1)(a)-(g), 45(2)
  • ILO Maternity Protection Convention No. 183 (2000)Article 8
  • ILO Termination of Employment Recommendation No. 119 (1963), Supplementary ProvisionsArticle 15

Cases cited (9)

  • Thomas La Rue versus David Opondo Omutelema
    [2013] eKLR
  • Kenya Airways Limited versus Aviation & Allied Workers Union Kenya & 3 others
    [2014] eKLR
  • GMV versus Bank of Africa Kenya Limited
    [2013] eKLR
  • Rose Wangui Mambo & 2 others versus Limuru Country Club & 17 others
    [2014] eKLR
  • Peter K. Waweru v Republic
    [2006] eKLR
  • Mrao Ltd versus First African Bank of Kenya Limited & 2 others
    Civil Appeal No. 39 of 2002
  • David Sironga Ole Tukai versus Francis Arap Muge & 2 others
    [2014] eKLR
  • Mara Ison Technologies Kenya Limited versus Muriel Ogoudjobi
    [2019] eKLR
  • Africa Nazarene University versus David Mutevu & 103 Others
    [2017] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Constitution and the Employment Act (petition for violation of Articles 27(5) and 41(1))

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (1)

#

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

Cite this brief

#

Cite this brief

Caselaw, "Millicent Nyambura Njoroge v Flamingo Horticulture (K) Limited [2021] KEELRC 1948 (KLR)", Case Analysis (2021). Petition dated 24th April, 2019 (ELRC, Naivasha). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1948/eng@2021-03-18

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