Obadha v Stanbic Bank Kenya Limited (Petition 496 of 2018) [2023] KEELRC 118 (KLR)
The bottom line
#A Kenyan bank unlawfully sacked a pregnant employee without notice, reasons or a hearing, and was ordered to pay her compensation and costs.
What this practically means
#Executive summary
#Key legal issues
#Validity of and procedure for termination of a fixed-term contract without probation
The termination was unlawful and unfair; the contractual one-week notice clause did not displace the statutory requirements.
The contract contained no probationary period, so the full statutory regime under sections 36, 41, 43 and 45 of the Employment Act applied. RW1's own testimony confirmed no notice to show cause, no written reasons, no targets, no written documentation of underperformance and no minutes of the performance meeting. The respondent therefore failed to prove a valid reason and fair procedure, and the claimant discharged her burden under section 47(5).
Claimant's medically justified absence and pregnancy-related victimisation
The claimant's absence was justified by genuine pregnancy-related illness of which the respondent was aware; her sickness was used to victimise her, an aggravating factor.
The claimant produced sick notes, ultrasound scans confirming a twin pregnancy with complications, and email correspondence showing the respondent knew of her condition. The Court found the respondent was not candid, with RW1 untruthful about awareness of the sickness. This justified the absence, undermined the underperformance rationale, and warranted six months' salary as compensatory relief under section 49(1)(c) and (4).
Legal principles established
#- An employer must comply with sections 36, 41, 43 and 45 of the Employment Act in terminating employment, including notice, a reason, and a fair hearing, notwithstanding a contractual notice clause.
- Where the employer gives no reason for termination and denies the employee a hearing, it fails to prove valid reason and fair procedure.
- Victimisation of an employee on account of medically justified absence related to pregnancy is an aggravating circumstance in assessing compensation.
Court orders
#- 1.Declaration that the termination of the claimant's employment was unlawful and unfair
- 2.Kshs 40,000 in lieu of notice
- 3.Kshs 240,000 in compensation for the unlawful and unfair termination of employment
- 4.Interest at court rates from date of termination till payment in full
- 5.Costs of the suit to the claimant
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (sections 36, 41, 43, 45, 47(5), 49)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Obadha v Stanbic Bank Kenya Limited (Petition 496 of 2018) [2023] KEELRC 118 (KLR)", Case Analysis (2023). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/118/eng@2023-01-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.