Muthaka v Nairobi Java House Limited (Petition E153 of 2021) [2023] KEELRC 1536 (KLR)
The bottom line
#The Employment and Labour Relations Court dismissed a pregnancy discrimination claim because the employee skipped work without medical approval, and ordinary employment remedies were deemed sufficient.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the petitioner absconded duties so as to justify her dismissal from work
- 2.Whether the respondent terminated the petitioner's employment on account of her pregnancy
- 3.If the termination was on account of pregnancy, whether the action amounted to discrimination compensable outside the remedies provided in the Employment Act
- 4.If such discrimination is established, what is the quantum of damages
Key legal issues
#Whether the petitioner absconded duty so as to justify dismissal
The court found the petitioner absconded duty and the respondent was justified in dismissing her after following a fair procedure
The petitioner was permitted sick leave only between 9th and 28th January 2019 on production of a medical certificate. She produced no medical certificate for the period after 28th January, did not follow the contractual leave procedures (ESS logging or leave books), and could not explain why she first produced follow-up treatment records only in August 2021, almost six months after termination. Her claim that she was verbally allowed to stay away contradicted her own conduct of applying for fresh employment in 2020.
Whether the petitioner was terminated on account of pregnancy, amounting to constitutional discrimination
The claim of pregnancy-based discrimination was not established; the court treated it as an ordinary statutory claim under the Employment Act
The court accepted that termination on account of pregnancy falls within Article 27, but held that to rise above statutory discrimination under Section 46 of the Employment Act the petitioner had to show conduct so obvious and egregious that no reasonable person could inflict it on a pregnant woman. The petitioner failed to provide sufficient evidence that the respondent knew of her pregnancy or that the dismissal was a cover for discriminatory motive, the respondent maintaining she never disclosed her pregnancy or produced any medical certificate.
Threshold for raising a constitutional question
Statutory employment questions should not be dressed up as constitutional petitions without precision in pleading the infringed provisions
Relying on Anarita Karimi Njeri v Attorney General as reiterated in Kamlesh Mansukhlal Ramkji Pattni v Attorney General, the court noted that a petitioner seeking redress involving the Constitution must set out with reasonable precision the complaint, the provision infringed and the manner of infringement, so as to avoid raising statutory questions as constitutional issues.
Legal principles established
#- Not every issue brought before a court is a constitutional issue; a party alleging constitutional infringement must set out with reasonable precision the provision infringed and the manner of infringement
- A termination on account of pregnancy rises above the statutory protection of Section 46 of the Employment Act only where the discriminatory acts are so obvious and egregious that no reasonable person could commit them; otherwise the claim remains an ordinary statutory claim
- An employee who absconds duty without notification or medical justification may be lawfully dismissed where the employer follows a fair procedure including a show cause letter and disciplinary hearing
Court orders
#- 1.The petition is dismissed with costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Article 27 of the Constitution and the Employment Act, 2007 (petition alleging discrimination on account of pregnancy and unfair termination)
Relief refused
#Twelve months' salary as compensation for unlawful termination
The court found the dismissal for absconding duty was justified and that a fair procedure was followed
Kshs 4,000,000/= as compensation for discrimination on account of pregnancy
The petitioner did not demonstrate discrimination so egregious that it could not be adequately addressed under Section 46 of the Employment Act; the claim was treated as an ordinary statutory claim
Costs
The petition is dismissed with costs to the respondent
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In conclusion the court finds and holds that the petition is without merit and the same is hereby dismissed with costs.
the court is persuaded that the respondent is justified in dismissing the petitioner on account of absconding duty and that a fair procedure was followed in the process
the petitioner ought to demonstrate that the discrimination or the acts alleged to be discriminatory were so obvious and egregious that no person in his right thought could do or omit to do such an act to a pregnant woman
if a person is seeking redress from the court on a matter which involves a reference to the Constitution, it is important that he should set out with reasonable degree of precision that of which he complains
Issues in the judgment
#The petition is dated '23rd September, 202' - an evident typographical omission of the year; the context (demand letter of 24th August 2021, dismissal in 2021) indicates 2021
The replying affidavit states the petitioner's probation was set to end on '21st January 2018', which is inconsistent with the employment commencement date of 22nd October 2018 and should presumably read 2019
The show cause letter date is inconsistently stated within the respondent's affidavit: earlier as 4th February 2019, later as a hearing 'scheduled for 7th February 2019' whereas the petition summary refers to a hearing on 8th February 2019 and a termination letter dated 8th February 2019
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Muthaka v Nairobi Java House Limited (Petition E153 of 2021) [2023] KEELRC 1536 (KLR)", Case Analysis (2023). Petition dated 23rd September, 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1536/eng@2023-06-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.