Wakarima v Registered Trustees Catholic Archdiocese of Nyeri (Employment and Labour Relations Petition E008 of 2022) [2023] KEELRC 1272 (KLR)
The bottom line
#Firing a Kenyan teacher while she was on maternity leave, without giving reasons or a hearing, was discriminatory and unfair — costing the school Kshs 77,000 plus costs.
What this practically means
#Executive summary
#Key legal issues
#Competence of the petition
The petition met the Anarita Karimi Njeru threshold as it pleaded the violated articles and the manner of violation with precision.
The court applied the Anarita Karimi Njeru principle requiring precision in pleading constitutional violations. The petitioner identified the articles infringed (27, 28, 41, 47) and the manner of infringement - termination due to pregnancy without fair procedure - enabling the respondent to respond comprehensively.
Discrimination on ground of pregnancy
Termination during maternity leave on unspecified grounds established a nexus with pregnancy and constituted discrimination under article 27 and section 5 of the Employment Act.
The termination letter gave no reason beyond 'unavoid circumstances' and was issued while the petitioner was on maternity leave, with her replacement by another teacher. The court found the timing and circumstances pointed to pregnancy as the reason, contrary to sections 5 and 46 of the Employment Act and article 27.
Unfair termination and fair procedure
The termination was unfair and unlawful under section 45 because the respondent gave no valid reason and no hearing.
The respondent failed to prove a valid and fair reason for termination and never accorded the petitioner a hearing. The court held that notice and payment in lieu do not displace the duty to explain reasons and hear the employee, following Kenfreight (EA) Ltd v Benson K Nguti.
Assessment of remedies
Six months' gross salary awarded as compensation and service pay granted at 15 days per year; house allowance, leave and notice pay declined.
Although the constitutional invocation was unnecessary since the rights are regulated by the Employment Act, the court assessed damages under section 49(1) with section 50. Service of only about two years but the discriminatory reason justified six months' salary; service pay was granted at the conventional rate.
Legal principles established
#- Terminating employment on account of pregnancy is unfair and discriminatory under section 46 and section 5 of the Employment Act and article 27 of the Constitution.
- Service of a termination notice and payment in lieu of notice do not excuse an employer from giving reasons and a hearing.
Court orders
#- 1.Declaration that the termination of the petitioner’s employment was unfair, unlawful and violated her rights under articles 27, 41 and 47 of the Constitution.
- 2.Award of six months’ gross salary (Kshs 66,000.00) as compensation for unfair termination.
- 3.Award of service pay of Kshs 11,000.00.
- 4.Total award of Kshs 77,000.00 subject to statutory deductions, with interest at court rates from the date of judgment.
- 5.Costs of the suit awarded on the lower courts rate.
- Jurisdiction invoked
- Articles 21 and 165 of the Constitution; Employment Act (sections 5, 41, 45, 46, 49 and 50)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Wakarima v Registered Trustees Catholic Archdiocese of Nyeri (Employment and Labour Relations Petition E008 of 2022) [2023] KEELRC 1272 (KLR)", Case Analysis (2023). Petition filed October 14, 2022 (ELRC Nyeri). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1272/eng@2023-05-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.