Rita Gakii Gitobu v Telkom Kenya Limited [2014] KEELRC 46 (KLR)
The bottom line
#Telkom Kenya's dismissal of an employee was ruled unfair, but the claimant won only 12 months' pay, not the Kshs.86 million she sought.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Claimant left employment through gender and/or racial discrimination
- 2.Whether the termination decision was justifiable and fair
- 3.Whether the Claimant merits anticipated salary, bonus and additional benefits, general damages for discrimination, general damages for unlawful termination, exemplary and/or aggravated damages, and costs
Key legal issues
#Whether the Claimant was terminated on grounds of gender and/or racial discrimination
No. The Claimant failed to establish even a prima facie case of discrimination; her claim rested on feelings and thoughts without comparators, discriminatory words or acts, or any pattern of discrimination.
The Court adopted the test in David Wanjau Muhoro v OL Pejeta Ranching Limited requiring prima facie evidence of discrimination established by preponderance of evidence. The Claimant's evidence consisted of feelings about the manner she was talked at, and she conceded she had no evidence of racial discrimination. No comparators were identified, no discriminatory words were proved, and women comprised about 40% of staff with no pattern or practice of discrimination shown.
Whether the termination was substantively justified
No. The Respondent failed to discharge its burden under Sections 43, 45 and 47(5) of the Employment Act; the charges remained mere allegations with no analysis or specific rebuttal of the Claimant's explanations.
Although the Respondent alleged negligence of duty over product launch documents, customer journey and EVDO service, the Disciplinary Committee's minutes contained no inputs from the Human Resource and Claimant's Departments, no Investigation Report, and no specific rebuttal of the Claimant's detailed explanations. The minutes' reference to a 'decision to terminate upheld' suggested the Claimant had been pre-judged, leaving the stated reasons without the semblance of fair and valid reasons.
Whether the termination was procedurally fair
No. The Claimant was never invited to appear before the Disciplinary Committee, contrary to the statutory minimum under Section 41 of the Employment Act.
The minutes disclosed no invitation to the Claimant to appear before the Disciplinary Committees; the reference to her failing to appear related to the Investigator, which the Court held was not relevant. Section 41 requires an opportunity to be heard before the Disciplinary Committee accompanied by a colleague or trade union representative, and the proceedings showed a fundamental departure from this standard.
What remedies flow from the unfair termination
Compensation equivalent to 12 months' gross salary (Kshs.3,210,000) under Section 49 of the Employment Act; anticipated salary, bonus and benefits, discrimination damages, and exemplary damages all declined.
Guided by Section 49(4) of the Employment Act and the Labour Institutions Act, the Court granted the maximum 12 months' gross salary, considering the reasonable expectation of continued employment. Loss of future salary to retirement was refused because the Claimant, a highly qualified person, had secured consultancies and moved on; granting lifetime salaries while she rendered no labour would offend the fair go all round principle. Exemplary damages failed the Rookes v Barnard categories.
Legal principles established
#- In a discrimination claim, the claimant must establish a prima facie case by preponderance of evidence; mere feelings or thoughts of discrimination are insufficient
- An employer must both show valid reasons for termination (Sections 43, 45 Employment Act) and observe procedural fairness (Section 41), including a hearing before the Disciplinary Committee
- Anticipated bonus is a discretionary, performance-based incentive that cannot be demanded as a matter of right
Court orders
#- 1.The Claims for loss of salary, loss of bonus and additional benefits; general damages for discrimination; and exemplary and/or aggravated damages are rejected
- 2.Declaration that termination of the Claimant's contract of employment was unfair, both in substance and procedure
- 3.Respondent to pay the Claimant 12 months' gross salary in compensation, calculated at Kshs.3,210,000
- 4.The said sum to be paid within 30 days of delivery of the Award, subject to PAYE tax deduction
- 5.Costs to the Claimant
- 6.No order on interest
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Industrial Court (Procedure) Rules 2010, Rule 27(1)(a); Labour Institutions Act 2007
Relief refused
#Loss of salary, bonus and additional benefits to expected retirement date (Kshs.86,870,000)
Not well founded in law and fact; the Claimant had secured consultancies and moved on; unearned bonuses cannot be demanded as of right
General Damages for Discrimination at Kshs.5,000,000
Claimant's evidence was too tenuous to build a prima facie case of gender and/or racial discrimination; no comparators or evidence of discriminatory acts
General Damages for unlawful termination at Kshs.5,000,000
Not justified, as compensatory awards are capped at a maximum of 12 months' gross salary; the Court instead awarded 12 months' compensation under Section 49
Exemplary and/or aggravated damages at Kshs.5,000,000
None of the two categories of cases warranting exemplary damages was shown
Costs
Costs of the Claim to the Claimant, granted under Section 12(8) (now repealed) of the Labour Institutions Act 2007 and Rule 28 of the Industrial Court (Procedure) Rules 2010
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Termination of the Claimant's contract of employment was unfair, both in substance and procedure.
The Respondent shall pay to the Claimant 12 months' gross salary in compensation, calculated at Kshs.3,210,000.
A prima facie case must go beyond mere feeling or thought.
The Court is satisfied the Claimant was not discriminated against by the Respondent, based on her gender and/or race.
The minutes of the Disciplinary Committee proceedings portray a fundamental departure from this statutory minimum disciplinary standard.
It would seem the Claimant had been pre-judged.
to grant her salaries she would have earned for the rest of her life, while she is not rendering any labour to the Respondent, would be against the principle of a fair go all round.
There shall be no order on interest.
Issues in the judgment
#The judgment purports to quote the Court of Appeal in Murgani citing Rookes v Barnard as [1964] 1 ALL ER 367, but the passage attributed to Rookes v Barnard is itself the Court of Appeal's restatement; also the quotation appears to omit words, reading oddly.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Rita Gakii Gitobu v Telkom Kenya Limited [2014] KEELRC 46 (KLR)", Case Analysis (2014). Cause Number 1101 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/46/eng@2014-12-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.