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ELRCPartially AllowedCause No. E004 of 2025

Mary Nanjala Nyongesa v Tsula Health Care Ltd T/A Wanda Medical Centre

Employment and Labour Relations Court of Kenya
24 September 2026
6,494 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~26 min to read original · ~4 min brief

The bottom line

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A Kenyan court awarded a clinical officer over Kshs 1.1 million after her employer dismissed her the day she applied for maternity leave.

What this practically means

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Executive summary

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The Claimant, a clinical officer engaged by the Respondent, trading as Wanda Medical Centre in Bungoma, from 17th February 2022, sued after her employment ended on 14th June 2024 — the very day she applied for maternity leave; she delivered her baby the following day. She sought declarations that the termination was unfair and discriminatory, maximum compensation, damages for pregnancy discrimination and emotional distress, a declaration of underpayment, salary arrears, maternity leave pay, pay in lieu of notice and costs. The Respondent maintained she worked on locum terms, was never a permanent employee, was not entitled to maternity leave, and was let go owing to financial difficulties following the migration from NHIF to SHA. The Court framed four issues: the nature of the employment relationship; whether the dismissal was wrongful, unfair and unlawful; entitlement to reliefs; and costs. Holding the employer to its record-keeping duties under Sections 10 and 74 of the Employment Act and applying the adverse presumption in Section 109 of the Evidence Act, the Court found the Claimant was a month-to-month employee on a fixed monthly salary, not a locum. With no notice, charges, hearing, redundancy process or terminal dues, the dismissal breached Sections 35, 41, 43, 45 and 47 and amounted to an unfair labour practice under Article 41(1) of the Constitution. The discrimination claim nevertheless failed for want of proof that pregnancy, rather than reckless human resource management, motivated the dismissal. The Court declared the dismissal wrongful, unfair and unlawful and awarded Kshs1,127,000 in total — Kshs396,000 compensation (12 months), Kshs99,000 salary arrears, Kshs99,000 maternity leave pay, Kshs33,000 notice pay and Kshs500,000 general damages for unfair labour practices — subject to statutory deductions and interest, a certificate of service within 30 days, and costs to the Claimant. The underpayment and pregnancy-discrimination heads were refused for want of evidence.

Questions the Court framed

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

  1. 1.What was the nature of the employment relationship between the Claimant and the Respondent?
  2. 2.Was the Claimant wrongfully, unfairly, and unlawfully dismissed?
  3. 3.Whether the claimant is entitled to the reliefs sought
  4. 4.Who should bear the costs of the cause?

Key legal issues

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01

Nature of the employment relationship (casual/locum versus month-to-month permanent employment)

Holding

The Claimant was a month-to-month employee of the Respondent with all rights and privileges appurtenant to such employment, not a casual or locum worker

Reasoning

Service for over two years on a fixed monthly salary of Kshs33,000, paid monthly, was common ground. The Respondent, as custodian of employment records under Sections 10 and 74 of the Employment Act, produced no contract or records supporting a locum engagement, and its attendance list did not show locum status. Invoking Section 109 of the Evidence Act, the Court presumed the withheld evidence would have favoured the Claimant; a fixed monthly salary is inconsistent with locum work, and Section 38 empowers the Court to classify the relationship.

p. 18
02

Whether the dismissal was wrongful, unfair and unlawful

Holding

The dismissal was wrongful, unfair, unjust and unlawful in both substance and procedure, breaching Sections 35, 41, 43, 45 and 47 of the Employment Act and Article 41(1) of the Constitution

Reasoning

The Respondent issued no termination notice, preferred no misconduct charges, conducted no disciplinary hearing, issued no redundancy notice and paid no terminal dues. Its justifications — financial stress from the NHIF-to-SHA migration and the Claimant's failure to use the online leave system — were unsupported; its own human resources officer conceded the SANITAS system was down and the Claimant visibly heavily pregnant. Dismissing a heavily pregnant employee on the eve of delivery for applying for leave was held blatantly shocking, illogical, unreasonable and inhumane.

p. 20
03

Whether the dismissal amounted to discrimination on account of pregnancy

Holding

Discrimination was not proved; the dismissal, though unfair and without lawful cause, was not founded on pregnancy

Reasoning

Applying Gichuru, Sikulu and Rose Wangui Mambo, the Court required prima facie proof, on a balance of probabilities, of differential treatment — for instance that other pregnant employees applied for leave, had it approved, and were not dismissed. No comparative evidence was tendered. The Respondent advanced non-pregnancy reasons: financial constraints and the improper leave application, which the Court found 'nauseating' but not pregnancy-based. The dismissal was therefore attributed to reckless and careless human resource management rather than pregnancy.

p. 24
04

Entitlement to maternity leave pay, salary arrears and notice pay

Holding

The Claimant was entitled to three months' maternity leave with full pay (Kshs99,000), salary arrears for three months (Kshs99,000) and one month's pay in lieu of notice (Kshs33,000); the underpayment declaration was refused

Reasoning

The manual maternity leave application was accepted as valid notwithstanding the broken SANITAS system; maternity leave of three months with full pay flowed as of right. As custodian of records, the Respondent failed to rebut the arrears claim by producing payment records, so salary for three months was awarded at the established rate of Kshs33,000. One month's pay in lieu of notice followed the summary dismissal without notice. The underpayment declaration failed because no evidence of the prescribed salary scale was adduced.

p. 25
05

Quantum: maximum compensation and general damages for unfair labour practices

Holding

Maximum compensation of 12 months' gross salary (Kshs396,000) under Section 49 of the Employment Act, plus Kshs500,000 general damages for unfair labour practices and emotional distress

Reasoning

Applying the Section 49 factors, the Court found the dismissal brutal, malicious and ill-timed, coming at the Claimant's hour of need, with terminal dues and a certificate of service withheld and no contribution by the Claimant to the dismissal; the parties did not desire re-engagement and the relationship was fatally fractured. The Court distinguished Section 49 compensation from general damages for unfair labour practices, grounded in Section 12 of the ELRC Act and Article 41(1) of the Constitution, fixing the latter at Kshs500,000.

p. 21
06

Costs of the cause

Holding

Costs of the cause awarded to the Claimant, with interest on the awards from the date of judgment until payment in full

Reasoning

Costs followed the event. The Claimant succeeded on the principal claims — the declaration, maximum compensation, maternity leave pay, salary arrears, notice pay and general damages — failing only on the discrimination and underpayment heads. The Court accordingly awarded costs of the cause to the Claimant and interest on all awards at court rates from the date of judgment until payment in full, subject only to statutory deductions on the award.

p. 27

Legal principles established

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  • Where an employer, as custodian of employment records under Sections 10 and 74 of the Employment Act, fails to avail them, the Court presumes under Section 109 of the Evidence Act that the withheld evidence would be adverse to the employer
  • Under Section 38 of the Employment Act the Court may interpret and classify the employment relationship in any category recognised by law, regardless of the label the parties used
  • Termination without notice, charges, disciplinary hearing, redundancy notice or terminal dues violates Sections 35, 41, 43, 45 and 47 of the Employment Act and constitutes an unfair labour practice prohibited by Article 41(1) of the Constitution
  • An employee alleging discrimination must prima facie plead and prove, on a balance of probabilities, that she was treated differently on a protected ground; mere unfairness does not establish discrimination
  • A manual application for maternity leave cannot be rejected merely because the employer's online leave system is down, particularly where the employer knows of the visible pregnancy
  • General damages for unfair labour practices and resulting emotional distress are awardable in addition to, and distinct from, compensation under Section 49 of the Employment Act

Court orders

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  1. 1.A declaratory order be and hereby issued that the dismissal of the Claimant by the Respondent was wrongful, unfair, and unlawful
  2. 2.Compensation for unlawful dismissal awarded at Kshs396,000/= (12 months' gross salary)
  3. 3.Salary arrears awarded at Kshs99,000/=
  4. 4.Maternity leave pay awarded at Kshs99,000/=
  5. 5.One month's salary in lieu of notice awarded at Kshs33,000/=
  6. 6.General damages for unfair labour practices awarded at Kshs500,000/= (total award Kshs1,127,000/=)
  7. 7.The award is subject to statutory deductions but shall attract interest at court rates from the date of the judgment till payment in full
  8. 8.The Respondent to issue and deliver a certificate of service to the Claimant within 30 days of the judgment
  9. 9.Costs of the cause to the Claimant

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Original employment and labour relations jurisdiction of the ELRC; the Court exercised its discretion to award damages under Section 12 of the Employment and Labour Relations Court Act and its power to classify employment terms under Section 38 of the Employment Act

Relief refused

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General damages for discrimination on account of pregnancy and violation of rights (prayer (c))

The Claimant adduced no comparative evidence that other pregnant employees were treated differently, and no evidence that the dismissal was pregnancy-based; the Court attributed the dismissal to reckless human resource management instead

p. 23

Declaration that the salary paid was below the prescribed rate for a clinical officer, with assessment and payment of the shortfall (prayer (d))

The Claimant tendered no evidence of the applicable salary scale or of underpayment, and her counsel submitted nil on the issue; the court has no duty to aid an indolent litigant

p. 24

Costs

Costs of the cause to the Claimant.

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.

A declaratory order be and hereby issued that the dismissal of the Claimant by the Respondent was wrongful, unfair, and unlawful.
p. 27Declaration of unfair dismissal — final orders
The award above is subject to statutory deductions but shall attract interest at court rates from the date of this judgment till payment in full.
p. 27Interest and statutory deductions — final orders
The Respondent is hereby ordered to issue and deliver a certificate of service to the Claimant within 30 days of this judgment.
p. 28Certificate of service — final orders
Costs of the cause to the Claimant.
p. 28Costs — final orders
It is a sound presumption of the law that where a party fails or refuses to avail evidence, it is so because the evidence if availed would be against such a party – see Section 109 of the Evidence Act.
p. 17Adverse presumption against employer who withholds employment records
Upon considering the entire evidence availed, oral and documentary, it is the finding and holding of the Court that the Claimant was a month to month employee of the Respondent with all rights and privileges appurtenant to such employment in law.
p. 18Finding on employment status
No notice of termination or dismissal was issued, no disciplinary hearing was conducted, no allegations or charges were made against the Claimant, no redundancy notice was issued, and no terminal dues were paid to her.
p. 19Incidents of an unfair termination
There is no responsible employer who would deny maternity leave to a visibly heavily pregnant woman, dismiss her on application for maternity leave, deny her terminal benefits, and then appear in court to justify the dismissal.
p. 20Employer's duty towards pregnant employees
Considering all the relevant factors, and more so those in Section 49 of the Employment Act, the Court takes the considered view that this is a proper case for the award of the maximum compensation equivalent to 12 months gross salary.
p. 21Maximum compensation under Section 49
It is the finding and holding of the Court that while the Claimant's dismissal was unfair and without lawful or just cause, the same was not founded on her pregnancy but rather on the reckless and careless human resource management practices by the Respondent.
p. 24Pregnancy discrimination not proved
There is a clear distinction between the reliefs awardable under Section 49 of the Employment Act that the Court has dealt with above, and the general damages for unfair labour practices in consideration here.
p. 26General damages for unfair labour practices distinct from Section 49 compensation

Issues in the judgment

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minor

Gross salary stated as Kshs33,300 in the undisputed-facts passage, but all awards computed on Kshs33,000

minor

Gichuru and Reuben Wamukota Sikulu cited with '(supra)' although neither appears earlier in the judgment

minor

Claimant's supporting witness named 'Sheila Nanjala Ounda' when filed and 'Sheila Wanjala Oundo' when testifying

minor

Respondent's witness named 'Lenah Nakhumicha Murumba' in the filings but 'Leah Nakhumicha Murumba' in the hearing narrative

minor

Prayer (e) pleaded Kshs38,700/= as the total sum for March–June 2024, but the judgment describes it as a monthly rate and awards three months at Kshs33,000

minor

Bungoma cause dated and signed at Kakamega rather than at the station named in the heading

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, "Mary Nanjala Nyongesa v Tsula Health Care Ltd T/A Wanda Medical Centre", Case Analysis (2026). Cause No. E004 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2528/eng@2026-09-24

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