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

clinical officer, and the Respondent paid the shortfall assessed by the Court. e) The Respondent be ordered to pay the Claimant her salary for March to June 2024 in the sum of Ksh.38,700/= with interest at Court rates until full payment; f) The Respondent will be ordered to pay the Claimant her dues for maternity leave, equivalent to three months’ salary, Ksh.99,000/-, with interest at Court rates until full payment. g) The Respondent pays the Claimant one month’s salary in lieu of notice in the sum of Ksh.33,000/= with interest at Court rates until full payment; h) The Respondent do pay general damages for the emotional and psychological stress suffered by the Claimant at the hands of the Respondent and from the financial strain she suffered and i) The Respondent bears the costs of the suit. 2.The memorandum of claim was accompanied with a verifying affidavit, a list of witnesses, a written statement by the Claimant, a list and copies of the listed documents attached. A witness statement by Sheila Nanjala Ounda (CW2) dated 21st November 2025 was also filed. 3.Upon service, the Respondent through Chengasia Murunga & Co Advocates entered appearance and filed a statement of defence dated 17th March 2025, denying each and every allegation against it ELRC BUNGOMA CAUSE NO. E004 OF 2025 JUDGMENT 2|PAGE

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and or putting the Claimant to strict proof thereof. It was prayed that the cause be dismissed with costs. 4.Subsequent to the filing of the response/defence, the Respondent filed a list and a bundle of copies of the listed documents dated 29th September 2025, alongside a list of witnesses and written witness statement by Lenah Nakhumicha Murumba (RW1). 5.The Claimant’s case came up in court for virtual hearing on 4th November 2025 when the Claimant (CW1) testified, and on 8th December 2025 when Sheila Nanjala Ounda (CW2) testified, and at that point the Claimant’s case was closed. 6.On the same date, 8th December 2025, the defence was heard with Leah Nakhumicha Murumba (RW1) testifying and the Respondent’s case was closed on that date as well. 7.Thereafter, the court directed Counsel for the parties to file written submissions. Mr. Nyboma for the Claimant filed written submissions dated 7th January 2026 and Mr. Murunga for the Respondent filed written submissions of even date. II. THE CLAIMANT’S CASE 8. In the statement of claim, the Claimant pleaded that she was employed by the Respondent as a clinical officer on 17th February 2022 at its Wanda Medical Centre along the Bungoma-Chwele Road, Bungoma County. It was pleaded that the Claimant was unfairly and unlawfully terminated on 14th June 2024. The Claimant’s last monthly salary was pleaded as Kshs33,000/=. ELRC BUNGOMA CAUSE NO. E004 OF 2025 JUDGMENT 3|PAGE

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9. It was further pleaded that during the entire period of employment the Respondent violated Section 9 of the Employment Act by failing to reduce the contract into writing. 10. It was pleaded that the termination was unfair, unlawful, and discriminatory as the same was based on the Claimant’s pregnancy status after the Claimant made an application for maternity leave on 14th June 2024. It was pleaded that the termination violated various provisions of the Employment Act and international conventions on maternity leave and against discrimination on basis of pregnancy. 11. It was pleaded that the termination subjected the Claimant to hardship, financial embarrassment, ridicule, mental anguish, and violated her right to fair labour practices. 12. It is on the basis of the foregoing that the Claimant sought for the reliefs set out in the introductory part of this judgment. 13. In her testimony in Court, the Claimant adopted her written statements dated 17th February 2025 and 9th May 2025 as her evidence-in-chief. She produced her filed documents as exhibits 1 to 31. She stated that she was a full-time employee but the Respondent did not offer her a written contract to sign. 14. She stated that on 14th June 2024 she applied for maternity leave by delivering a hard copy of the leave application form as the electronic online system was at the time faulty. She further stated ELRC BUNGOMA CAUSE NO. E004 OF 2025 JUDGMENT 4|PAGE

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that the application for maternity leave was received and acknowledged by way of a stamp at the reception. 15. In cross-examination, the Claimant stated that she was promised a written contract upon engagement on 17th February 2022 but the Respondent failed to deliver the same. She stated that she was effectively terminated on 14th June 2024 when she applied for maternity leave. She reiterated that as at the time of her making the application for leave the automated online system was not working and hence she delivered a hard copy of the application as she needed to urgently take the leave as the date of delivery of her baby was approaching. She stated that she actually delivered her baby on the day that followed, 15th June 2024. 16. She denied that she worked on-call aka locum and insisted that she was permanent and pensionable. She denied that she was declared redundant. 17. In re-examination, the Claimant stated that she was paid her monthly salary up to February 2024. She further stated that the shock following the unfair termination triggered early labour pains, she underwent a Cererian operation (C-section) to deliver the baby, and incurred a lot of debts due to the unlawful actions and unfair termination by the Respondent. She stated that the Respondent even denied her a certificate of service that would have aided her in looking for a job after the delivery of the baby. She reiterated that she worked month to month, was paid monthly and, that she was ELRC BUNGOMA CAUSE NO. E004 OF 2025 JUDGMENT 5|PAGE

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on full-time, permanent and pensionable terms, in her employment with the Respondent. 18. CW2, Sheila Wanjala Oundo, relied on a written statement dated 21st November 2025 as her evidence-in-chief. In support of the Claimant’s case she stated that on 25th March 2025 she applied for maternity leave and since the online leave application system was not working she delivered a hard copy. She thereafter proceeded on a 60-day maternity leave on the strength of that hard copy application for leave. She stated that she was thereafter dismissed and that a suit between her and the Respondent is pending in a court of law over the dispute. III. THE RESPONDENTS’ CASE 19. In the filed response to the statement of claim, the Respondent pleaded that the Claimant worked on locum, on temporary need basis, at Wanda Medical Centre between 2022 and 2024 but was never employed on permanent and pensionable terms. It was pleaded that the Claimant was paid on basis of days worked on each given month and that she was never on a monthly salary and hence no contract of employment was issued to her. 20. The Respondent further pleaded that having been engaged on locum basis, the Claimant was not entitled to maternity leave. It was further pleaded that when in 2024 the Respondent, like other healthy services providers, faced financial challenges due to nonELRC BUNGOMA CAUSE NO. E004 OF 2025 JUDGMENT 6|PAGE

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payment of services as the Government migrated health services from National Hospital Insurance Fund (NHIF) to Social Health Authority (SHA), it had to let go the Claimant and other employees who were on locum and other casual engagements. 21. Lenah Nakhumicha Murumba (RW1), a human resources officer with no professional qualifications in that field, adopted her filed written statement dated 29th September 2025 as her evidence-inchief. she produced a leave schedule as Respondent’s exhibit 1. 22. In cross-examination, CW1 claimed that the Claimant worked as a casual for over two years. She admitted that the advert that led to the employment of the Claimant as a clinical officer did not state that the position was casual. She admitted that the Claimant was paid from month to month as per the bank statements filed and produced in Court by the Claimant. 23. She admitted that the Claimant worked for the months of March, April, and May, 2022 and admitted that the record did not indicate that the Claimant was on locum. She further conceded that the Claimant was entitled to maternity leave and confirmed that she knew that the Claimant was pregnant. She further admitted that at no point did the Respondent inform the employees, including the Claimant, that it was experiencing financial difficulties and that it intended to down-size its workforce. ELRC BUNGOMA CAUSE NO. E004 OF 2025 JUDGMENT 7|PAGE

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24. In re-examination, RW1 admitted that the statements by the Claimant were correct in the payment of her wages. She admitted that Wanda Health Centre belonged to the Respondent. IV. SUBMISSIONS 25. In summary, Mr. Nyboma for the Claimant submitted that the Respondent unfairly and unlawfully dismissed the Claimant for taking maternity leave, notwithstanding that she was statutorily entitled to at least three months in that leave. It is submitted that the Respondent was so notorious and blatant in violation of the law that it did not issue the Claimant with a written contract or pay-slips, notwithstanding that she served for over two years. 26. Counsel for the Claimant isolated the following issues for determination – a) Whether the Claimant was an employee deserving the protection and rights under the Employment Act 2007. b) Whether the Claimant was entitled to maternity leave and maternity leave pay. c) Whether the Claimant was unlawfully terminated. d) Whether the Respondent’s conduct amounts to discrimination on the basis of pregnancy and related issues. e) Whether the Claimant was subjected to unfair and unreasonable labour practices. f) Whether the Respondent has controverted the Claimant’s evidence. ELRC BUNGOMA CAUSE NO. E004 OF 2025 JUDGMENT 8|PAGE

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g) What extent of compensation is available in the circumstances? 27. It was submitted that the Claimant was a fulltime employee from February 2022 to June 2024 and was not on locum as alleged by the Respondent. It was submitted that the Claimant was thus fully protected under the Constitution, the Employment Act, and all other laws attendant to such employment. It was further submitted that the Claimant was paid a monthly salary as per the bank statement availed and there is no other way that her employment status may be interpreted other than that she was on permanent and pensionable terms. It was submitted that as the custodian of employment records, the Respondent did not avail evidence to the contrary, more so, in the support of the unfortunate and false claim that the Claimant was on locum. 28. Counsel urged that even if the Claimant was on locum, which is however not the case, the Court has powers under Section 37 of the Employment Act to convert the same into permanent and pensionable status. It was submitted that the oral and documentary evidence adduced by and for the Claimant confirm that she was on permanent and pensionable employment. 29. On pay for maternity leave, it was submitted that the Claimant was lawfully entitled to pay while on maternity leave in the sum of Kshs99,000/, equivalent to three months’ salary. It was submitted that the Director, Dr Susan Murumba, of the Respondent admitted to the debt as per pages 44 to 47 of the Claimant’s trial bundle. It ELRC BUNGOMA CAUSE NO. E004 OF 2025 JUDGMENT 9|PAGE

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was submitted that the Claimant was as of right entitled to maternity leave and Counsel cited Mary Gakii Nabea V Malindi Management Strategy Ltd (2019) eKLR in support of that argument. 30. It was submitted that after a deliberate delay in granting the Claimant maternity leave by the Respondent, the Claimant submitted a formal manual application for leave on 14th June 2024 and delivered her baby on 15th June 2024. It was submitted that the Respondent certainly knew or ought to have known that the digital leave application system was not working and hence approve the manual application form made by the Claimant. It was submitted that the Respondent deliberately delayed approving the maternity leave with the already predetermined mind fixed on dismissing the Claimant for applying for maternity leave. 31. In the foregoing circumstances, it was submitted that the dismissal of the Claimant was evidently unlawful both in substance and procedure. It was submitted that no notice was issued, no disciplinary hearing was held, and that the Claimant was simply verbally informed that her services were no longer required after lawfully applying for maternity leave. It was submitted that the Respondent blatantly and with impunity violated and abused Sections 40, 43, 45, & 46 of the Employment Act. 32. It was submitted that the dismissal was discriminatory and contrary to Sections 5 & 46 of the Employment Act. It was further submitted that since no reason for the dismissal was advanced by ELRC BUNGOMA CAUSE NO. E004 OF 2025 JUDGMENT 10 | P A G E

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the Respondent, the only logical and reasonable presumption is that she was dismissed on the basis of the pregnancy. Counsel cited the decisions in GMV V Bank of Africa Kenya Ltd (201) eKLR and Janine Buss V GEMS Cambridge International School Ltd (2012) eKLR in support of that position. 33. It was further submitted that the Claimant was subjected to unfair labour practices against Sections 9 & 10 of the Employment Act in that the Respondent denied her a written contract. It was further submitted that the conduct of the Respondent clearly went against Article 41 of the Constitution. 34. It was further submitted that the Respondent failed to justify any reason for the dismissal after the Claimant proved the fact of the dismissal. It was submitted that the Respondent failed to avail any documents or other evidence in support of the dismissal. 35. On reliefs, it was submitted that the Claimant is entitled to the maximum compensation under Section 49(1)(c) of the Employment Act. In support of this argument, Counsel cited Kenfreight (EA) Ltd V Nguti (2019) eKLR. It was submitted that such an award is justifiable in that the Claimant did not contribute to her dismissal and that the timing of the dismissal and the circumstances were so malicious and inhumane as it came at a time when the Claimant needed finances and support for pre and post-natal care. It was submitted that the dismissal was discriminatory, casual, and without due regard to the over two ELRC BUNGOMA CAUSE NO. E004 OF 2025 JUDGMENT 11 | P A G E

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years that the Claimant had served with dedication. To add insult to injury, it was submitted, the Respondent denied the Claimant a certificate of service which could have aided in her searching for and securing another job. Yet, the Respondent did not pay to the Claimant any terminal dues. 36. It was submitted that the Respondent subjected the Claimant to undue and untold suffering leading to premature delivery of the baby due to stress. The Court was urged to make a maximum award under this head equivalent to 12 months of her gross salary. Counsel cited other decisions in support of this proposition including Changalwa V Unga Ltd (2005) eKLR and Lukalia V West Kenya Sugar Ltd (2025) eKLR. 37. On damages for unfair and unreasonable labour practices, it was submitted that the Court should not shy away from making this award after awarding the compensation above. Counsel cited GMV V Bank of Africa, Agunda V Kenya Orient Insurance Ltd (2025) eKLR and Ndurumo V University of Nairobi (2025) eKLR. 38. On damages for discrimination, Counsel cited numerous decisions where awards have been made on the same grounds ranging from Kshs500,000/= to six million. Counsel cited Janine Buss V GEMS Cambridge International School Ltd, GMV V Bank of Africa (supra), and Wilson V Imarisha Mabati Ltd (2023) eKLR. ELRC BUNGOMA CAUSE NO. E004 OF 2025 JUDGMENT 12 | P A G E

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39. The Claimant also sought for damages for unfair labour practices and emotional distress that led to the Claimant delivering her baby prematurely. Counsel prayed for an award of Shillings one million in that regard. 40. Counsel also prayed for other statutory reliefs for salary arrears, maternity leave-pay, and pay in lieu of notice. It was submitted that those are, in any event, statutory entitlements to the Claimant. 41. Counsel for the Respondent isolated the following issues for determination – a) Whether the parties were in a casual employment relation? b) Whether the Claimant was discriminated? c) Whether the termination was fair? d) Whether the Claimant is entitled to the reliefs that she seeks through her respective pleadings? 42. On the first issue, it was submitted that although the Claimant was paid her wages monthly, she remained a casual employee throughout her employment with the Respondent. Counsel submitted that casual employees may be paid weekly, bi-weekly, or even monthly for days or hours actually worked but that does not change the nature of their employment or the status thereof. Counsel cited Ibrahim V Reliance Hospital Limited (2023) KEELRC 2529 (KLR), Josphat Njuguna V Highrise Self Help Group (2014) eKLR, and Kenya National Union of Nurses V ELRC BUNGOMA CAUSE NO. E004 OF 2025 JUDGMENT 13 | P A G E

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Nairobi County Public Service Board & Another (2022) eKLR in support of that argument. 43. On the second issue, it was submitted that the Claimant was duly informed by the head of nurses that her services were no longer needed after her maternity leave. It was submitted that the Respondent was downgrading its services at the time and hence it complied with and satisfied Sections 43 and 45 of the Employment Act. 44. On compensation for discrimination, it was submitted that while Section 5 of the Employment Act prohibits discrimination at the workplace, it was upon the Claimant to prove that indeed discrimination occurred and, the Respondent had the burden of proving that no such discrimination occurred or to justify the actions complained of. On the definition of discrimination Counsel relied on Rose Wangui Mambo & 2 Others V Limuru Country Club & 15 Others (2014) eKLR. 45. It was submitted that different treatment does not of itself amount to discrimination as was held in Mohammed Abduba Dida V Debate Media Limited & Another (2018) eKLR. It was submitted that the Claimant was aware of the fact that the Respondent was undergoing downgrading and that she failed to apply for her maternity leave in the prescribed online manner. It was submitted that the Respondent was undergoing financial challenges and that is why it was unable to pay to the Claimant her terminal dues. ELRC BUNGOMA CAUSE NO. E004 OF 2025 JUDGMENT 14 | P A G E

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46. It was emphasized that the Claimant was terminated not based on the pregnancy, but for the reasons stated above. It was submitted that the Claimant did not avail evidence that other persons in her situation or similar circumstances were treated differently by the Respondent and hence discrimination was neither established nor proved. 47. On the awards or reliefs sought by the Claimant, Counsel for the Respondent submitted that the Claimant failed to apply for leave in the prescribed online manner. While acknowledging that the online leave application system (SANITAS) had issues, it was submitted that the Claimant failed to prove that she submitted the manual application for maternity leave. It was submitted that while the Respondent was aware of the physically visible pregnancy, the Claimant failed to apply for maternity leave. 48. The court was urged not to award any of the reliefs sought and dismiss the cause with costs. V.ISSUES FOR DETERMINATION 49. The court has carefully and dutifully gone through the pleadings filed, the oral and documentary evidence tendered from both parties, and the written submissions by their respective Counsel. The following issues commend themselves to the court for determination a) What was the nature of the employment relationship between the Claimant and the Respondent? ELRC BUNGOMA CAUSE NO. E004 OF 2025 JUDGMENT 15 | P A G E

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b) Was the Claimant wrongfully, unfairly, and unlawfully dismissed? c) Whether the claimant is entitled to the reliefs sought; and, d) Who should bear the costs of the cause? VI.THE EMPLOYMENT 50. I have not enjoyed writing this judgment. As I write this paragraph, it is 0300hrs (3am) and yet what I am reading from the file is a story of two parties in a dispute giving two diametrically opposed positions and accounts over the same transaction and subject matter. Surely, one or both of the parties must have lied to the court in the pleadings and the evidence. Am not complaining about the task ahead of me in the matter as that is precisely why courts are established to adjudicate disputes, and more specifically for this Court (ELRC) disputes in employment and labour relations. What concerns me though, is the temerity and audacity for a party to lie to or mislead the court in an attempt to justify serious infractions and violations of the law. 51. The evidence in court, and both sides agree on this, is that as at the time of her dismissal or termination, the Claimant had served the Respondent for a period of over two years. It was also not in dispute that her last known gross salary was Kshs33,300/=. It was also not in dispute that this salary was paid monthly. 52. Further, it was not disputed that during the entire period of employment, the Respondent failed, refused, and or neglected to ELRC BUNGOMA CAUSE NO. E004 OF 2025 JUDGMENT 16 | P A G E

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reduce the relationship into writing. The court must add that no explanation has been offered by the Respondent for this blatant violation of Sections 9 & 10 of the Employment Act. 53. In furtherance of the breach and violation of the law, the Respondent offered no explanation as to why no pay-slips were ever issued to the Claimant during the entire period of her employment. 54. The Claimant’s case was that she was a month to month employee otherwise known as permanent employment. As the custodian of the employment records, as demanded under Sections 10 & 74 of the Employment Act, it was upon the Respondent to avail and produce documents to rebut that position and help the Court in arriving at the correct legal interpretation of the employment relationship. 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. It was upon the Respondent to dislodge the claim by the Claimant that she was on permanent terms of employment, not on casual or locum as alleged by the Respondent. The work attendance list availed by the Respondent did not dislodge or rebut the Claimant’s case. If indeed the Respondent was genuine, why did it not avail the document signed, if any, after the Claimant was interviewed for the job that she held as a clinical officer? ELRC BUNGOMA CAUSE NO. E004 OF 2025 JUDGMENT 17 | P A G E

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55. The casual approach to very serious issues by the Respondent concerns this Court. Employment, in a poor economy like ours, is a serious matter at times of life and death. It is about bread and butter. There should be no room for casual and lukewarm approach from either the employer or the employee as it is a duty for all citizens to build this nation at all levels. 56. In any event, even if the Claimant started off as a casual or on locum, which is however not the case, the evidence before the court is that the she was on a fixed salary of Kshs33,000/= as at the time of her dismissal, which could not have been the case if she was on locum. Further, under Section 38 of the Employment Act, this Court has the jurisdiction to interpret the terms of employment between the parties and classify the same in any of the categories recognized by the law. 57. 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. 58. It was also not denied by both sides that the Respondent operated an online leave application platform. It was conceded by the Respondent that as at the time of the dismissal of the Claimant the system (SANITAS) was down. The folly and ridicule is in the Respondent’s claim that there was no other way for an employee to apply for leave, even when that system was either down or ELRC BUNGOMA CAUSE NO. E004 OF 2025 JUDGMENT 18 | P A G E

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broken. The Respondent’s position is that if the Claimant submitted her maternity leave application in any other manner, the same was purportedly unacceptable. This is notwithstanding that RW1 admitted that the Claimant was visibly heavily pregnant at the time. 59. This is a classic case for employers on how not to treat an employee. It is the Claimant’s case, and this can only be so, as no evidence to the contrary was adduced, that when she delivered her manual application for maternity leave, she was informed that her services were no longer required after the maternity leave. And just like that, the Claimant, heavily expectant, was without a job. The evidence on record confirms that one day after her dismissal the Claimant delivered her baby on 15th June 2024. 60. 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. And yet, the Respondent wants the Court to conclude that the dismissal was okay because it was allegedly experiencing financial difficulties and was downgrading. This blatantly shocking, illogical, unreasonable, and inhumane treatment of an employee in the 21st century is wrongful, unfair, unjust, illegal, and unlawful. It can only be attributed to either lack of professional human resources managers or untamed and reckless appetite for the violation of the law on the part of the ELRC BUNGOMA CAUSE NO. E004 OF 2025 JUDGMENT 19 | P A G E

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Respondent, or simply careless and inconsiderate attitude towards its employees. 61. 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. 62. Let me end the lamentations by declaring and holding that the dismissal was wrongful, unfair, and unlawful. There is no way for justifying the same in law for the following reasons. There is no allegation or charges of misconduct preferred against the Claimant, no disciplinary hearing was held, and no notice of dismissal or redundancy was issued upon the Claimant. Further, no terminal dues were paid to the Claimant. 63. For the reasons above, the Respondent blatantly violated Sections 35, 41, 43, 45, & 47 of the Employment Act. Further, the Respondent subjected the Claimant to unfair labour practices prohibited under Article 41(1) of the Constitution. 64. Cumulatively, the court finds and holds that the dismissal of the Claimant by the Respondent was wrongful, unfair, unjust, and unlawful, both in substance and form (procedure). VII. RELIEFS 65. Prayer (a) is for a declaration that the termination of the Claimant was unfair, unlawful, and discriminatory. The court has found and ELRC BUNGOMA CAUSE NO. E004 OF 2025 JUDGMENT 20 | P A G E

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held above that the dismissal was wrongful, unfair, and unlawful and it is hereby so declared. 66. Prayer (b) is for maximum compensation for the wrongful and unlawful dismissal. As noted elsewhere in this judgment, the Respondent was grossly unfair to the Claimant. She was abandoned by the employer in her hour of need. Heavily pregnant and almost due for delivery, she was dismissed for no lawful reason and thrown into the deep end, so to say. This is not a court of mercy but of law. However, empathy compels me to think of the agony and suffering that was visited upon the Claimant through this blatantly unfair and unlawful dismissal. The baby came on the following day after the dismissal. 67. 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. The parties have not expressed the desire to re-engage and, in any event, the Respondent was so brutal, unfair, and unreasonable that the relationship was fatally fractured. The compensation shall be awarded as prayed – Kshs33,000/= * 12 months = Kshs396,000/=. 68. Prayer (c) is for general damages for discrimination on account of pregnancy and violation of rights. Counsel for the Respondent committed a considerable number of pages in his written submissions demonstrating what constitutes discrimination. ELRC BUNGOMA CAUSE NO. E004 OF 2025 JUDGMENT 21 | P A G E

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Counsel also cited numerous decisions on the subject. Simply put, discrimination connotes different treatment to different persons or entities based on the variety of characteristics prescribed in the law. It may be race, colour, religion, sex, pregnancy, sexual orientation, disability, or indeed any other attribute recognized in the law – see Article 27(4) of the Constitution and Section 5 of the Employment Act. 69. In Gichuru V Package Insurance Brokers Ltd (supra) and Reuben Wamukota Sikulu V Director of Human Resource Management, Ministry of Devolution & Planning & 2 Others (supra), it was emphasized that an employer or litigant claiming discrimination shall prima facie plead and prove on a balance of probabilities that he/she was treated differently based on any of characteristics, conditions, circumstances, or situations stated above. 70. The decision in Rose Wangui Mambo & 2 Others V Limuru Country Club & 15 Others (supra) provided a classic definition of discrimination as follows – “……………… Discrimination means according different treatment to different persons attributed wholly or mainly to their description whereby persons of one such description are subjected to ….. restrictions to which persons of another description are not made subject or are accorded privileges or advantages which are not accorded to persons of another such ELRC BUNGOMA CAUSE NO. E004 OF 2025 JUDGMENT 22 | P A G E

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description ….. Discrimination also means unfair treatment or denial of normal privileges to persons because of their race, age, sex …… a failure to treat all persons equally where no reasonable distinction can be found between those favoured and those not favoured.” 71. The question then becomes whether the Claimant, through her oral and documentary evidence, prima facie established and proved, on a balance of probabilities, that she was indeed accorded a differentiated treatment on the basis of her pregnancy. In my understanding of the authorities cited and the constitutional and statutory provisions cited above, the Claimant ought to have demonstrated and proved that other persons, being employees of the Respondent, were accorded different treatment under the same or similar circumstances. Or that she was dismissed on the basis of her pregnancy. In other words, that persons who were pregnant applied for leave, the same was approved, and that they were not dismissed or terminated on the basis of pregnancy. With respect, no such evidence was tendered. 72. The explanation for the dismissal given by the Respondent, as nauseating as it sounds, is that the Claimant failed to apply for leave in the online prescribed manner and that it was experiencing financial stress and hence the need to cut down on the workforce. There is no evidence that the reason for the dismissal was the pregnancy or the application for maternity leave. In any event, as ELRC BUNGOMA CAUSE NO. E004 OF 2025 JUDGMENT 23 | P A G E

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shall be addressed hereunder, the Claimant was certainly entitled to the maternity leave of three months with full pay. 73. 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. 74. Prayer (d) is for a declaration that the salary paid to the Claimant was below the prescribed rate and that the shortfall be assessed and awarded by the Court. Litigants are bound by the pleadings filed and evidence tendered during trial. It was upon the Claimant, led by her Counsel, to indeed demonstrate and prove on a balance of probabilities, that she was underpaid. This simply called for her to avail notices that provided for the scale of salaries and wages for her services at the material times. It is not the duty of the courts to go out of their way to gather evidence or write submissions for the litigants. That is why litigants hire lawyers to give them professional advice, guidance, and counsel in conducting their cases. Counsel for the Claimant submitted nil on this issue and no evidence on underpayment was availed and tendered. The court has no duty aiding an indolent litigant and this prayer is thus denied. 75. Prayer (e) is for salary arrears for the period from March to June, 2024 at Kshs38,700/= per month. It was upon the Respondent, as ELRC BUNGOMA CAUSE NO. E004 OF 2025 JUDGMENT 24 | P A G E

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the lawful custodian of employment records, to rebut this claim by availing records confirming that indeed the Claimant was paid her salary in full as at the time of dismissal in June 2024. No such records were availed and as such the Court has no difficulties in awarding the salary arrears as prayed. However, as noted above, the rate applicable is Kshs33,000/= * 3 months = Kshs99,000/=. 76. Equally, the Claimant was entitled to monthly salary while on maternity leave for three months in the sum of Kshs99,000/= and the same is hereby awarded as prayed in (f). 77. Prayer (g) is payment of one month’s salary in lieu of notice and the same is hereby awarded at Kshs33,000/=. 78. Prayer (h) is for general damages for the emotional and psychological stress suffered by the Claimant and financial stress. It is important to note that Section 49 of the Employment Act provides for compensation for wrongful and unlawful dismissal. The list therein is not exhaustive. Section 12 of the Employment and Labour Relations Court Act provides that the Court may award damages at its discretion. 79. However, the discretion must be within the confines of the law and not at the fiat of the Court or based on whims or caprice. Counsel for the Claimant cited several decisions where damages were awarded as summarized in a preceding parts of this judgment. There is no denying that the Respondent subjected the Claimant to terribly bad situation and financial embarrassment. ELRC BUNGOMA CAUSE NO. E004 OF 2025 JUDGMENT 25 | P A G E

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The Claimant was abandoned in the hour of need and left to suffer with the pregnancy and thereafter with the new born. That conduct on the part of the Respondent was not only irresponsible but also inhumane. In fact, the Court is not able to discern why and how an employer could mistreat its own employee, who served with dedication for over two years, in such a manner. 80. In my considered view, this is an appropriate case for award of general damages. It is amazingly unpleasant that the Respondent even denied the Claimant the basic right to a certificate of service to enable her move on and search for a job. The dismissal was not only ill-timed but also malicious. The court has commented above that the Claimant was subjected to unfair labour practices. There is no wrong without a remedy and the Court cannot passively sit back and watch such transgressions and do nothing about the same. 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. 81. Considering the decisions cited by Counsel for the Claimant, and further considering the awards made under the other heads above, it is my considered opinion that an award of Kshs500,000/= in general damages, for the unfair labour practices visited upon the Claimant by the Respondent and the resultant emotional ELRC BUNGOMA CAUSE NO. E004 OF 2025 JUDGMENT 26 | P A G E

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psychological stress, shall be fair compensation in the entire circumstances of this case. 82. The Claimant’s case succeeds to the extent in the foregoing paragraphs and she is awarded costs and interest on the awards above from the date of this judgment till payment in full. XII. ORDERS 83. The court issues orders that a) A declaratory order be and hereby issued that the dismissal of the Claimant by the Respondent was wrongful, unfair, and unlawful. b) The Claimant is awarded the following – i. Compensation for unlawful dismissal…. Kshs396,000/= ii. Salary arrears …………………………. Kshs99,000/= iii. Maternity leave pay …………………… Kshs99,000/= iv. One month’s salary in lieu of notice …… Kshs33,000/= v. General damages for unfair Labour practices ……………………….. Kshs500,000/= Total …………………………………. Kshs1,127,000/= c) 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. ELRC BUNGOMA CAUSE NO. E004 OF 2025 JUDGMENT 27 | P A G E

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d) The Respondent is hereby ordered to issue and deliver a certificate of service to the Claimant within 30 days of this judgment. e) Costs of the cause to the Claimant. DELIVERED VIRTUALLY, DATED, AND SIGNED AT KAKAMEGA THIS 24TH DAY OF SEPTEMBER 2026. ……………………… DAVID NDERITU JUDGE ELRC BUNGOMA CAUSE NO. E004 OF 2025 JUDGMENT 28 | P A G E

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