Ngugi v Advertising Co. Ltd (Cause 1354 of 2011) [2012] KEIC 14 (KLR)

The Court is established under Article 162(2)(a) to hear employment disputes, with exclusive jurisdiction under Section 12 of the Industrial Court Act. Section 45(3) of the Employment Act, limiting unfair termination claims to employees with over 13 months' service, was declared unconstitutional in Samuel G. Momanyi v Attorney General as discriminatory and denying access to justice. The Court concurred, holding there is no magic in the 13-month period and constitutional rights cannot be abridged by statute.

The termination letter gave no reason for the dismissal and no misconduct was evidenced. The Claimant's hospitalisation due to pregnancy complications was not controverted, and the Respondent took no steps to ascertain her whereabouts before treating her absence as abscondment. Requiring prompt attendance at work over medical care was described as preposterous. The failure to confirm the employee after a 3-month probationary period for 9 months also weighed against the employer.

Expected earnings constitute special damages which must be specifically pleaded and proved. The Court analysed the principles for computing past and future earning capacity but found the Claimant had not established a basis for the claim: there was no guarantee she would have worked until 60, the job was not permanent and pensionable, and applying a multiplier would stretch the bounds of employment damages.

Section 31(1) of the Employment Act obliges the employer to provide reasonable housing or pay a sufficient sum as rent. Neither the appointment letter nor the payslip indicated any housing provision or that gross pay was inclusive of house allowance. The position held would have attracted a house allowance of Kshs. 25,000/- per month, computed for 9 months worked plus one month's notice.