Wanjira v Computer Learning Centre (Cause 767 of 2019) [2023] KEELRC 2528 (KLR)
The bottom line
#A Kenyan court awarded Kshs.3 million to an employee sacked while on maternity leave, confirming employers bear the burden of disproving pregnancy discrimination.
What this practically means
#Executive summary
#Key legal issues
#Validity of reason and fairness of procedure for termination on grounds of poor performance
The respondent had no valid reason and violated Sections 41, 43, 45 and 46 of the Employment Act; the termination was unlawful and unfair.
The respondent adduced no tangible evidence of what targets the claimant failed to meet, nor remedial measures or timeframes. The PIP was issued via WhatsApp while the claimant was already on maternity leave, six days before a termination letter, and a day after her maternity leave request. The Court found the CEO's denial of knowledge of the pregnancy not candid, showing lack of good faith.
Discrimination on grounds of pregnancy
The claimant was victimized on grounds of her pregnancy and imminent maternity leave, violating Article 27(4) of the Constitution and Section 5(3) of the Employment Act.
The timing of the PIP and termination, immediately after the maternity leave request and during maternity leave, evidenced victimization. C.W.2's testimony that her employment was similarly terminated while pregnant corroborated a pattern. The respondent failed to rebut the evidence, the burden having shifted to it under GMV v Bank of Africa.
Section 45(3) 13-month service threshold as a bar to unfair termination claims
The threshold does not bar an employee who has served probation; Section 45(3) was invalidated in Samuel G. Momanyi v Attorney General and the Court continues to respect that finding.
The respondent argued the claimant, having served only 7 months, could not complain under Section 45(3). The Court noted that provision was invalidated by the High Court and held that a probation-completed employee enjoys contractual and statutory protection under Parts IV and V of the Employment Act.
Legal principles established
#- Where an employee claims discrimination on grounds of pregnancy, the duty to prove that the discrimination did not occur shifts to the employer.
- An employer terminating for poor performance must lay on the table the remedial targets set, the extent of attainment, the time frame, support measures and consequences of failure, in the Section 41 conversation.
- An employee who has served probation is entitled to the protection of the Employment Act notwithstanding the 13-month service threshold.
Court orders
#- 1.Declaration that the termination of the claimant's employment was unlawful and unfair
- 2.General damages of Kshs.3,000,000 for violation of constitutional rights under Article 27(4) read with Section 5(3)(a) of the Employment Act, 2007
- 3.Interest on the award at Court rates from the date of judgment until payment in full
- 4.Costs to follow the event
- Jurisdiction invoked
- Employment Act, 2007 (Sections 41, 43, 45, 46, 49(1) and 49(4)); Article 27(4) of the Constitution of Kenya, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Wanjira v Computer Learning Centre (Cause 767 of 2019) [2023] KEELRC 2528 (KLR)", Case Analysis (2023). Cause No 767 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2528/eng@2023-10-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.