Harley Street Fertility Centre Kenya Limited v Sila (Cause E711 of 2023) [2025] KEELRC 1619 (KLR)
The bottom line
#A Kenyan court enforced a former employee's training bond and notice clause, awarding the fertility centre Kshs 699,498 after her resignation.
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 respondent breached her contract of employment, thus entitling the claimant to the reliefs sought in the claim
- 2.Whether the respondent was constructively dismissed from employment
- 3.Whether there is a case of discrimination
- 4.Whether the respondent is entitled to the reliefs sought in the counterclaim
Key legal issues
#Enforceability of the training bond clause (Clause 10.3.2)
The 36-month bonding period and the prorated Kshs 2,000,000 bond sum were reasonable; the clause is enforceable, and the respondent was liable for Kshs 333,333.00 for the unexpired 6 months of the bond
The court adopted persuasive Nigerian and Indian precedents on training bonds, holding that enforceability turns on the reasonableness of both the bonding period and the compensation. The 36-month period was reasonable and the bond sum reflected the direct and attendant costs of engaging the Consultant Clinical Embryologist, including a monthly consultancy fee of Kshs 450,000, accommodation, transport, internet, special pass and flights. The respondent resigned at 30 months, leaving 6 months prorated.
Whether the respondent breached Clause 11.2 (notice)
The respondent resigned with immediate effect without three months' notice or salary in lieu, and is liable for Kshs 450,000.00 notice pay
Clause 11.2 permitted termination by three months' written notice or payment of three months' salary in lieu. The resignation letter took immediate effect and there was no evidence of payment in lieu. The claim for notice pay therefore succeeded in full.
Constructive dismissal
Not proved; the resignation was voluntary and the toxicity allegations were afterthoughts
Applying the Coca Cola v Ligaga principles, the employee must prove a causal link between the employer's conduct and the resignation. The resignation letter cited only 'personal circumstances', was gracious in tone, and made no reference to a toxic or hostile environment. The court found the later allegations to be afterthoughts and the constructive dismissal claim was not proved to the requisite standard.
Discrimination
No prima facie case; the respondent and Mr Jugal were not similarly situated
Although section 5(7) of the Employment Act places the burden of disproving discrimination on the employer, that burden shifts only after the employee establishes a prima facie case. Mr Jugal was engaged for three months under a Consultancy Agreement to train junior embryologists, a materially different engagement from the respondent's employment contract, so their circumstances were incomparable.
Entitlement to salary for days worked in May 2023
The claimant did not dispute this entitlement; the respondent was awarded Kshs 83,835.00 per the claimant's own tabulations
The claimant's own exhibits tabulated the salary for days worked in May 2023 at Kshs 83,835.00. Since the claimant did not dispute this head, the court awarded that sum, which was then set off against the claimant's award.
Legal principles established
#- A training bond in an employment contract is enforceable if the bonding period and the compensation payable on breach are both reasonable
- An employment bond is not a license for unlimited employer advantage given the unequal bargaining power in employment relationships
- An employee alleging constructive dismissal must prove a causal link between the employer's conduct and the resignation
- An employee alleging discrimination must first establish a prima facie case before the burden shifts to the employer under section 5(7) of the Employment Act
- The burden of establishing hours or days worked in excess of the legal maximum rests with the employee claiming overtime
Court orders
#- 1.The claim is allowed in the sum of Kshs 783,333.00 being prorated training bond and three (3) months' salary in lieu of notice
- 2.The counterclaim is partly allowed and the respondent is awarded the sum of Kshs 83,835.00 being salary for the days worked in the month of May 2023
- 3.The sum of Kshs 83,835.00 is set off against the claimant's total award, hence the final award due to the claimant stands at Kshs 699,498.00
- 4.The final award shall attract interest at court rates from the date of Judgment until payment in full
- 5.The respondent shall bear 75% of the taxed costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment and Labour Relations Court Act and Article 162(2) of the Constitution (employment and labour relations dispute)
Relief refused
#Counterclaim: declaration of constructive dismissal, damages for unfair termination and notice pay
The respondent did not prove a causal link between the claimant's conduct and her resignation; her resignation letter cited personal circumstances
Counterclaim: discrimination claim
No prima facie case established; Mr Jugal was engaged under a distinct consultancy contract to train her
Counterclaim: overtime pay of Kshs 205,333.33
Global claim without precise dates; burden of proving hours worked beyond the legal maximum rests with the employee
Counterclaim: underpayment of Kshs 9,520,000
Respondent did not justify the expected monthly salary; US/UK salary comparisons inapplicable to Kenya's labour market
Counterclaim: unpaid leave for 8.75 days (Kshs 32,083.33)
Respondent had utilized her leave days in excess of 0.75 days by the date of resignation; no outstanding leave
Punitive damages for denial of salary for 16 days in May 2023
The court instead awarded the tabulated sum of Kshs 83,835.00 for days worked in May 2023
Costs
The respondent shall bear 75% of the taxed costs
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.
reasonability is determined by taking into account the bonding period and the amount required to be paid in the event of breach
the court finds and holds that Clause 10.3.2 of the Contract of Employment is enforceable against the respondent
the respondent has not demonstrated to the requisite standard that her resignation from the claimant's employment was involuntary and amounted to constructive dismissal
the respondent has not established a prima facie case of discrimination for the burden to shift
The claim is allowed in the sum of Kshs 783,333.00 being prorated training bond and three (3) months’ salary in lieu of notice.
The final award shall attract interest at court rates from the date of Judgment until payment in full.
In view of the fact that the claim has been allowed and the counterclaim has partly succeeded, the respondent shall bear 75% of the taxed costs.
Issues in the judgment
#Paragraph 127 states 'Mr Jugal was engaged by the respondent for three (3) months under a Consultancy Agreement' although the evidence shows the claimant, not the respondent, engaged Mr Jugal
Paragraph 140 refers to the claimant as the party seeking payment of leave days, though the leave claim was in the respondent's counterclaim
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Harley Street Fertility Centre Kenya Limited v Sila (Cause E711 of 2023) [2025] KEELRC 1619 (KLR)", Case Analysis (2025). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1619/eng@2025-05-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.