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ELRCDismissedNot stated in judgment

Kosgei v Mvita Management Company Limited (Petition E022 of 2024) [2024] KEELRC 2841 (KLR)

Employment and Labour Relations Court
15 November 2024
BOByram Ongaya
1,860 words in judgment
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The bottom line

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What this practically means

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Executive summary

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The petitioner, employed as a cleaner from 2009 and later engaged on annual written contracts, petitioned the ELRC claiming twelve months' compensation for unlawful termination, unpaid house allowance for twelve years, and general damages of Kshs. 3,000,000 for discrimination on account of pregnancy. She was on maternity leave due to lapse on 31.10.2023 and was invited to a Board meeting on 01.11.2023, at which her employment was terminated citing a performance review and clause 11(a) of her contract, which permitted termination by one month's notice or payment in lieu. The respondent opposed the petition, arguing the doctrine of constitutional avoidance, that the claim belonged in the Magistrates Court, that maternity leave had always been fully paid, and that all terminal dues were honoured. The Court upheld its own jurisdiction, holding that the Magistrates Court is statutorily barred from entertaining compensation claims for Bill of Rights violations and that the petition blending unfair termination and constitutional claims was properly filed; the constitutional avoidance objection failed. On the merits, however, the Court found the termination was effected purely under the contractual notice clause, without adverse performance allegations, and was therefore fair and lawful under sections 35 and 45 of the Employment Act. The pregnancy discrimination claim failed for want of particulars and because maternity leave had been fully accorded and paid. The petition was dismissed with each party bearing own costs, the Court noting the respondent's failure to formalise later employment arrangements in writing contributed to the litigation.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the parties were in a contract of service and how it was terminated
  2. 2.Whether the termination of employment was unfair, unlawful and in breach of Articles 41 and 47
  3. 3.Whether the petitioner established discrimination based on pregnancy
  4. 4.Whether the Court had jurisdiction to hear the matter as a constitutional petition

Key legal issues

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01

Whether termination was unfair and unlawful

Holding

Termination was fair and lawful as it was effected under the contractual notice clause (clause 11(a)) and sections 35 and 45 of the Employment Act

Reasoning

The termination letter invoked clause 11(a) permitting termination by one month's notice or payment in lieu. It mentioned no adverse allegations of poor performance, so no notice-to-show-cause or hearing under section 41 was required. The Court found no denial of due process or fairness and held the alleged violations of Articles 41 and 47 unjustified.

p. 4
02

Whether there was discrimination based on pregnancy

Holding

No discrimination established; termination by contractual notice was not linked to pregnancy

Reasoning

The petitioner herself confirmed she was fully paid during maternity leave and had previously enjoyed maternity leave without adverse consequence. She pleaded no particulars of discrimination, and attaching pregnancy to a contractually-permitted termination was found speculative.

p. 4
03

Whether the Court had jurisdiction over the petition

Holding

The ELRC had jurisdiction; the constitutional avoidance argument failed

Reasoning

The petition pleaded violations of Bill of Rights provisions, and the Magistrates Court is barred from hearing compensation claims for Bill of Rights violations under section 8(3) of the Magistrates Court Act. The mixed cause of action could properly be brought as a petition, though the petitioner failed on the merits.

p. 4

Legal principles established

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  • A claim for compensation for violation of Bill of Rights cannot be heard by a Magistrates Court
  • A petitioner may file a petition blending alleged unfair termination and breach of the Bill of Rights

Court orders

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  1. 1.The petition is dismissed
  2. 2.Each party to bear own costs of the petition

The bench

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One judgment of the whole court — no separate or dissenting opinions.

BO
majority

Wrote the judgment

Jurisdiction invoked
Articles 22, 27, 41 and 47 of the Constitution of Kenya, 2010

Relief refused

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Twelve months' salary in compensation for unlawful termination

The Court found the termination was under the contractual notice clause and fair per sections 35 and 45 of the Employment Act, 2007

p. 4

Unpaid house allowance

No finding in the petitioner's favour on the claims

p. 4

General damages for discrimination on account of pregnancy

Petitioner failed to plead and prove particulars of discrimination

p. 4

Costs

Each party to bear own costs of the petition.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The Court upholds the submission that the termination of employment was purely under the clause on termination by notice and nothing more.
p. 4Termination by contractual notice clause
the petitioner has failed to establish discrimination based on pregnancy as was alleged
p. 4Pregnancy discrimination not proved
The submission for the respondent that the principle of constitutional avoidance chained the petition is unfounded.
p. 4Jurisdiction and constitutional avoidance
In conclusion, the petition is hereby dismissed and each party to bear own costs of the petition.
p. 4Final orders and costs

Issues in the judgment

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minor

Judgment refers to the termination letter both as dated 01.11.2023 and as 'letter of 03.11.2023'

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, "Kosgei v Mvita Management Company Limited (Petition E022 of 2024) [2024] KEELRC 2841 (KLR)", Case Analysis (2024). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2841/eng@2024-11-15

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