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ELRCPartially AllowedCause No E340 of 2023· [2024] KEELRC 2556 (KLR)

Ingasiani v Elevator General Services Kenya Limited & another (Cause E340 of 2023) [2024] KEELRC 2556 (KLR)

Employment and Labour Relations Court
18 October 2024
2,476 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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A Nairobi court awarded a former employee Kshs 281,000 for unfair termination because her employer showed up and proved nothing—though her pregnancy discrimination claim failed for lack of evidence.

What this practically means

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Executive summary

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The Claimant sued the Respondents claiming she was employed by the 1st Respondent from 15th January 2019 to March 2021 without a written contract. She alleged she was terminated verbally upon resuming work from maternity leave on 1st March 2022, without notice, reasons or payment during leave, and that the termination was motivated by her pregnancy. She sought declarations of unfair termination and discrimination, compensation of twelve months' salary, damages for violation of rights, unpaid salary, maternity and annual leave pay, statutory deductions, a certificate of service, interest and costs. The Respondents entered appearance but filed no defence and did not participate in the trial despite being granted leave to file a defence. The Claimant testified and relied on her documents. The court framed three issues: whether termination was unfair and unlawful; whether there was pregnancy discrimination; and entitlement to reliefs. Holding that sections 43(1) and 45(2) of the Employment Act place the burden of proving valid reasons and fair procedure on the employer, and that the 1st Respondent had discharged neither, the court found the termination unfair and unlawful. The discrimination claim failed because the Claimant produced no medical records or birth notification to prove she was pregnant and thus a member of a protected class; the maternity leave letter exhibited was found confusing. Judgment was entered against the 1st Respondent: a declaration that termination was unfair and unlawful; Kshs 20,000 notice pay; Kshs 100,000 compensatory damages (five months' salary); Kshs 140,000 salary arrears; Kshs 21,000 unpaid leave; total Kshs 281,000 with interest at court rates from the date of judgment; the Claimant to have costs of the suit. Judgment delivered at Nairobi on 18th October 2024 by Stella Rutto, Judge.

Key legal issues

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01

Whether termination was unfair and unlawful

Holding

Termination was unfair and unlawful as the employer proved neither valid reasons nor fair procedure under sections 41, 43 and 45 of the Employment Act

Reasoning

Section 43(1) requires the employer to prove reasons for termination; section 45(2) requires validity and fairness; section 41(1) mandates notification and explanation. The 1st Respondent filed no defence and adduced no evidence, so the verbal termination was uncontroverted and the statutory burden was not discharged.

p. 4
02

Whether the Claimant was discriminated against on grounds of pregnancy

Holding

Claim failed because the Claimant did not establish a prima facie case of pregnancy discrimination

Reasoning

Under section 5(7) of the Act the employer bears the burden of disproving discrimination, but the employee must first establish a prima facie case. The Claimant produced no medical records or birth notification to confirm pregnancy, and the letter dated 11th October 2021 was too confusing to establish the facts alleged.

p. 5
03

Quantum of reliefs

Holding

Claimant awarded notice pay, five months' compensatory damages, seven months' salary arrears and leave pay for 18 months preceding separation

Reasoning

Uncontroverted claims for unpaid salary succeeded as the respondents filed no defence. Compensatory damages of five months took into account the short length of employment (approximately three years). Leave pay was restricted by section 28(4) of the Act to the 18 months preceding separation.

p. 5

Legal principles established

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  • An employer bears the burden of proving valid and fair reasons for termination and that a fair procedure was followed; failure to file a defence and adduce evidence means the burden is not discharged
  • An employee alleging pregnancy discrimination must first establish a prima facie case, including proof of pregnancy and membership of a protected class, before the burden shifts to the employer

Court orders

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  1. 1.A declaration that the Claimant's termination from employment was unfair and unlawful
  2. 2.One month's salary in lieu of notice of Kshs 20,000.00
  3. 3.Compensatory damages of Kshs 100,000.00 being five months' gross salary
  4. 4.Kshs 140,000.00 being outstanding salary arrears for seven months
  5. 5.Kshs 21,000.00 for unpaid leave days
  6. 6.Total award of Kshs 281,000.00
  7. 7.Interest at court rates from the date of judgment until payment in full
  8. 8.Costs of the suit to the Claimant

Authorities

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Legislation

  • Employment Actsection 41(1)
  • Employment Actsection 43(1)
  • Employment Actsection 45(2)(a),(b),(c)
  • Employment Actsection 5(7)
  • Employment Actsection 28(4)
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48

Cases cited (3)

  • Gichuru v Package Insurance Brokers Ltd (Petition 36 of 2019) [2021] KESC 12 (KLR)
    [2021] KESC 12 (KLR)
  • Siewchand Ramanoop v The AG of T&T
    PC Appeal No 13 of 2004
  • G M V vs Bank of Africa Kenya Limited
    [2013] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (first-instance Statement of Claim under the ELRC)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Ingasiani v Elevator General Services Kenya Limited & another (Cause E340 of 2023) [2024] KEELRC 2556 (KLR)", Case Analysis (2024). Cause No E340 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2556/eng@2024-10-18

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