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ELRCDismissed· [2024] KEELRC 722 (KLR)

Mwajomba v Mambogani Limited (Cause E430 & 448 of 2020 (Consolidated)) [2024] KEELRC 722 (KLR)

Employment and Labour Relations Court
14 March 2024
MOMaureen Onyango
4,360 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~17 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled that placing an employee on unpaid leave during Covid-19 was neither unfair termination, contract breach, nor pregnancy discrimination because she proved none of them.

What this practically means

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Executive summary

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The Claimant, a cashier employed by the Respondent since February 2018, sued for breach of contract, constructive dismissal, pregnancy discrimination and unfair labour practices after she was placed on indefinite unpaid leave during the Covid-19 pandemic. She was on annual leave when the Ministry of Health published restaurant protocols in April 2020; the Respondent's HR Manager telephoned her, obtained her email address, and on 21 April 2020 sent a letter placing her on unpaid leave, received on 5 May 2020. She was never recalled and later sought maternity leave, leading to this claim for declarations and damages exceeding Kshs. 6.8 million. The court framed four issues: breach of contract, unfair termination, pregnancy discrimination and entitlement to remedies. Relying in part on the Court of Appeal's decision in JKUAT v Kwanza Estate on Covid-19 as a force majeure event, the court held that the Respondent consulted employees by telephone and email as was feasible under the restrictions, that the letter did not amend the contract, and that no breach was proved. The court found no termination, redundancy or constructive dismissal, the claimant remaining an employee on unpaid leave. On discrimination, the claimant failed to demonstrate when she disclosed her pregnancy or any differential treatment from other employees in her position. The claim was dismissed in its entirety with each party bearing its own costs, dated, signed and delivered virtually on 14 March 2024 by Maureen Onyango, Judge.

Key legal issues

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01

Unilateral amendment of employment contract

Holding

No unilateral amendment proved; consultations by telephone and email sufficed

Reasoning

The HR Manager telephoned the claimant, explained the situation and sought her consent, following up by email. The letter of 21 April 2020 referred to those discussions and did not alter the terms of employment. The court accepted that abrupt government containment measures left no room for conventional consultation, and that the Respondent did what was possible in the circumstances.

p. 7
02

Unfair termination by constructive dismissal or unprocedural redundancy

Holding

Not proved; the employment relationship subsisted

Reasoning

The claimant was placed on unpaid leave, not declared redundant or terminated. The Respondent maintained she remained an employee and the prevailing circumstances were beyond its control. The letter contained no termination or redundancy. The claimant also acted before any final decision on her employment status had been made.

p. 8
03

Discrimination on grounds of pregnancy

Holding

Not proved; no differential treatment established

Reasoning

The record did not show when the claimant first informed the Respondent of her pregnancy; the medical report was not shown to have been submitted to it. She was treated no differently from other employees in the same situation, and no cashier had been recalled.

p. 8

Legal principles established

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  • To prove discrimination, an employee must show differential treatment to her detriment because of the condition complained of
  • Covid-19 pandemic and government containment measures could constitute unforeseen circumstances excusing employer decisions taken without conventional consultation

Court orders

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  1. 1.The Claim is dismissed
  2. 2.Each party shall bear its own costs

Authorities

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Legislation

  • Employment Actsection 10(5)

Cases cited (6)

  • Christopher Kyalo Mutiku v Scholastica Ajode t/a Skajo Airline Handling Agency
    (2019) eKLR
  • Ben Murage Njogu v Ramani Warehouse Limited
    (2021)
  • GMV v Bank of Africa Kenya Limited
    2013 eKLR
  • Winnie Treezer Ochieng v Label Craft (k) Ltd
    (2021)
  • Patrick Kariuki v Mustek East Africa Limited
    [2021] eKLR
  • Jomo Kenyatta University of Agriculture and Technology v Kwanza Estate Limited
    (Civil Appeal 64 of 2022) [2023] KECA 700 (KLR) (16 June 2023)
Jurisdiction invoked
Employment and labour relations jurisdiction (Employment Act; memorandum of claim under the ELRC)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Mwajomba v Mambogani Limited (Cause E430 & 448 of 2020 (Consolidated)) [2024] KEELRC 722 (KLR)", Case Analysis (2024). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/722/eng@2024-03-14

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.