Mutuku v Wine Company Limited (Cause E012 of 2022) [2024] KEELRC 2234 (KLR)
The bottom line
#A Kenyan court awarded an employee over Kshs 2.3 million after finding she was fired for being pregnant, with no hearing.
What this practically means
#Executive summary
#Key legal issues
#Wrongful, unfair and unlawful dismissal
The claimant was wrongfully, unfairly and unlawfully dismissed for lack of both substantive and procedural fairness
Under Sections 41 and 43 of the Employment Act an employer must afford a hearing and establish valid grounds. The respondent called no evidence. The dismissal letter alleged poor performance and theft, but no hearing, show-cause or investigation preceded the dismissal. The unchallenged evidence of the claimant stood, and the dismissal was found capricious and whimsical.
Discrimination on the basis of pregnancy
The respondent dismissed the claimant on account of her pregnancy, violating Article 27 of the Constitution and Section 5(3)(a) of the Employment Act
The claimant was dismissed immediately upon proceeding on approved maternity leave, with no evidence of the alleged misconduct and no hearing. The court found pregnancy the only plausible explanation, guided by Article 27(4) and (5) and Section 5(3)(a), and by precedent holding pregnancy-based termination discriminatory.
Quantum of reliefs
Global damages of Kshs 1,500,000 for constitutional violations plus maximum 12 months' compensation under Section 49(1)(c) and other contractual and statutory dues
Considering the five years of service with a clean disciplinary record, the cruelty of dismissing a pregnant employee without due process, the ruined employment relationship, and the employer's failure to disprove claims for arrears, leave, maternity pay and service pay, the court awarded the reliefs substantially as prayed.
Legal principles established
#- Where an employer gives no evidence, the claimant's unchallenged evidence stands unless there is good legal reason otherwise
- Dismissal without warning, show-cause or hearing, during pregnancy and maternity leave, constitutes dismissal without substantive justification or procedural fairness and is discriminatory
- Constitutional violations of equality, dignity and fair labour practices may be compensated by way of damages alongside statutory compensation under Section 49 of the Employment Act
Court orders
#- 1.A declaration be and is hereby issued that the respondent violated and breached the claimant’s rights as enshrined in Articles 27, 28, and 41 of the Constitution.
- 2.A declaration be and is hereby issued that the respondent breached the claimant’s right to equality and freedom from discrimination guaranteed under Articles 27, 28, and 41 of the Constitution.
- 3.In compensation for (a) & (b) above the claimant is awarded a global sum of Kshs 1,500,000/=
- 4.The claimant is awarded compensation in the sum of Kshs 2,377,332/= comprising general damages (Kshs 1,500,000/=), one month’s salary in lieu of notice (Kshs 35,000/=), salary arrears Sept 2021–Feb 2022 (Kshs 165,666/=), 12 months’ gross salary compensation (Kshs 420,000/=), accrued annual leave (Kshs 64,166/=), maternity leave pay (Kshs 105,000/=) and service pay (Kshs 87,500/=); general damages not subject to statutory deductions, all other awards subject to statutory deductions.
- 5.The respondent shall issue and deliver a certificate of service to the claimant within 30 days of this judgment.
- 6.Costs of the cause to the claimant.
- Jurisdiction invoked
- Articles 27, 28 and 41 of the Constitution and the Employment Act (Sections 5, 18(2)(c), 35, 36, 41, 43, 45, 49, 51, 10 & 73)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mutuku v Wine Company Limited (Cause E012 of 2022) [2024] KEELRC 2234 (KLR)", Case Analysis (2024). Cause No E012 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2234/eng@2024-09-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.