AKO v Abson Motors Limited [2021] KEELRC 2118 (KLR)

The Court held that pregnancy discrimination claims are specifically regulated by Section 5(7) of the Employment Act, which places the burden on the employer to prove discrimination did not occur once a prima facie case is established. The strict standard in Section 107 of the Evidence Act is moderated to protect vulnerable claimants, and the frequent defence demanding strict proof has no value in such litigation.

The Claimant's unchallenged evidence and medical records established a strong prima facie case. The termination letter gave no reason beyond services no longer being required, which the Court found pretextual; the underlying reason was the Claimant's pregnancy-related absence. With no evidence from the Respondent, the inference of discrimination stood unshaken.

Even absent pregnancy, termination was legally infirm: the Claimant was not taken through a disciplinary hearing, faced no performance complaints, and the Respondent did not prove her position was superfluous or that termination was based on operational requirements. Termination was abrupt, without reason or notice, and the Respondent failed to justify it under Section 45.

Following G.M.V v. Bank of Africa Limited, the Court held the two remedies do not redress the same injury but may be merged where the wrongs arise from similar facts. Pregnancy discrimination implicates multiple constitutional rights, and the 12-month cap under the Employment Act is not a limit in discrimination claims. Coalesced damages of Kshs. 1,417,588 were granted, calibrated to the Claimant's lower salary and credentials.