Kiamah v Mutai t/a Kiogora Mutai & Co Advocates (Cause E530 of 2021) [2024] KEELRC 1840 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the Respondent proved a valid and fair reason for termination
The Respondent failed to discharge the evidential burden; the termination email cited reorganization, which did not amount to redundancy since the position subsisted, and the poor-performance allegations raised at trial were not the reasons communicated and were unsupported by any performance evaluation.
The 13th November 2020 termination email referred vaguely to reorganization of the litigation department, which the court held was not redundancy as the Claimant's position was to be filled rather than abolished. The poor-performance grounds raised in testimony were not in the termination email, and no appraisal, set targets or evaluation measures were proved. Following National Bank of Kenya v Samuel Nguru Mutonya, the court held the Respondent's determination was not based on objective assessment, so the termination lacked substantive justification.
Whether the Claimant was afforded procedural fairness under Sections 41 and 45(2)(c)
Termination was procedurally unfair; there was no notice of allegations, no hearing and no evidence of the claimed mutual separation.
Section 41 imposes mandatory minimum standards: explanation of grounds, entitlement to accompaniment, and hearing of representations. No notice detailing allegations was issued and no hearing convened. The Respondent's assertion of an amicable mutual separation was unsupported by evidence. Applying Postal Corporation of Kenya v Andrew K. Tanui, the court concluded the process fell short of Section 41 and was therefore procedurally unfair under Section 45(2)(c).
Whether the Claimant was discriminated against on account of pregnancy
That limb failed for want of proof of pregnancy at the material time, so no prima facie case arose.
Under Section 5(7) the employer bears the burden once a prima facie case is established. Although the Claimant alleged she announced her pregnancy on 12th November 2020 and was terminated within 24 hours, she produced no medical records or birth notification to prove she belonged to the protected class. Without that proof, the discrimination-by-pregnancy claim collapsed.
Whether failure to onboard the Claimant onto the medical cover amounted to discrimination
Succeeded; the Respondent did not justify excluding the Claimant from the medical cover enjoyed by a colleague in a similar position.
The Respondent explained the exclusion on grounds that the Claimant had not been confirmed and that COVID-19 complicated matters, but did not substantiate how the pandemic made onboarding impossible given she was confirmed on 26th May 2020. Applying Gichuru v Package Insurance Brokers Ltd and Section 5(7), the court found the Respondent failed to prove a justification, and awarded Kshs 500,000 for breach of Article 27(5).
Whether the unilateral salary reduction and withholding of April 2020 salary were lawful
Unlawful; salary is a significant contract term and any variation required compliance with Section 10(5), which was not observed. The Claimant was awarded the withheld amounts.
The COVID-19-related reduction to 50% and non-payment for April 2020 were variations of a fundamental term. Section 10(5) requires consultation and written notice of any change. No evidence showed the Claimant was consulted or accepted the reduction in writing. The Respondent's assertion that she rendered no service in April 2020 was rebutted by evidence that she raised Kshs 123,568 in revenue that month.
Legal principles established
#- An employer terminating for poor performance must have put in place measures/policies to measure and evaluate performance against set targets; mere assertion of poor performance does not suffice.
- The provisions of Section 41 of the Employment Act on fair procedure before termination are mandatory.
- An employee alleging pregnancy discrimination must first establish a prima facie case, including that she was pregnant at the material time, before the burden shifts to the employer under Section 5(7).
- Variation of a contract of service, including salary reduction, requires consultation with and written notice to the employee under Section 10(5) of the Employment Act.
Court orders
#- 1.A declaration that the Claimant's termination from employment was unfair and unlawful
- 2.One (1) month's salary in lieu of notice being Kshs 80,000.00
- 3.Compensatory damages in the sum of Kshs 160,000.00 being equivalent to two (2) months of her gross salary
- 4.Unpaid salary for the months of April 2020 (Kshs 60,000/=), June 2020 (Kshs 24,000/=), July 2020 (Kshs 40,000/=), August 2020 (Kshs 40,000/=), September 2020 (Kshs 40,000/=), October 2020 (Kshs 40,000/=) and November 2020 (Kshs 40,000/=)
- 5.Kshs 500,000.00 compensation for breach of her right to equality and freedom from discrimination under Article 27(5) of the Constitution and Section 5(3) of the Employment Act
- 6.Interest on the total award of Kshs 1,024,000/= at court rates from the date of Judgment until payment in full
- 7.The Claimant shall also have the costs of the suit
- Jurisdiction invoked
- Original jurisdiction of the Employment and Labour Relations Court under the Employment Act, 2007; constitutional claim under Article 27(5) of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kiamah v Mutai t/a Kiogora Mutai & Co Advocates (Cause E530 of 2021) [2024] KEELRC 1840 (KLR)", Case Analysis (2024). Cause No E530 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1840/eng@2024-07-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.