A young city lawyer is smiling all the way to the bank after the Labour Court ordered a law firm associated with Tharaka Nithi Senator Kindiki Kithure to pay her over ksh2.2 million for unlawfully sacking her on allegations she was pregnant.
In a one-of-a-kind judgement, Justice Mathews Nduma, sitting at Employment and Labour Relations court in Nairobi compensated lawyer Yasmin Josephine Mokaya Ksh2,274,051 saying that the law firm violated her constitutional rights by unlawfully terminating her employment.
“Kindiki’s decision to fire the lawyer after she refused to take a three months unpaid maternity leave violated her constitutional right against discrimination on grounds of pregnancy,” Nduma ruled.
Kindiki will now pay the young advocate Ksh1.5 million as damages for violation of her rights, Ksh552,894 (equivalent to six months compensation for unlawful and unfair termination of employment), Ksh129,008 (compensation for unspent leave days) and Ksh92,149 (her one month salary in lieu of notice).
The judge while passing his decision noted that the lawyer suffered psychological torture and framed up accusations during the trial, adding that the conduct by Kindiki was egregious.
“The court finds and declares that Kindiki violated Section 5(3) (a) of the Employment Act (2007) read with Article 27(4) of the Constitution for terminating the employment of Mokaya on account of her pregnancy. The conduct by Kindiki was discriminatory, unfair, and unlawful,” said the judge.
Justice Nduma noted that Mokaya lost nine months of employment and means of livelihood on account of pregnancy and at her hour of need and was entitled to compensation for the job loss.
“The petitioner was not paid terminal benefits nor was she compensated for the job loss. The petitioner lost prospects of career progression in a good law firm on unjust grounds,” Nduma said.
In her court papers, the lawyer informed the court that she joined Kindikii’s law firm, Kithure Kindiki & Associates, as a trainee in June 2015 and upon being admitted to the bar, she was retained by the firm in January 2016.
Mogaka said she worked on a contractual basis until January 2018 when she informed Kindiki that she was pregnant and that she intended to proceed on her statutory three-month maternity leave from March 5 to June 5, 2018.
She informed the court that the said leave was duly approved but the chairman and founder of the law firm, Kindiki, rescinded the paid leave offered to her.
The Senator cajoled the lawyer to accept unpaid leave and when she refused, he hinted to her that her employment would be terminated unless she changed her mind.
The lawyer said that when she persisted that she was entitled to all payments and benefits due to her while on maternity leave, she received a notice of termination of her employment written by Senator Kindiki dated March 1, 2018, to take effect on March 31.
The termination letter it stated that the reason for the termination was due to “a long spell of financial constraints.”
Following the termination without sufficient grounds, Mokaya on February 14, 2019, petitioned the Labour court seeking declaration her termination of service by the Kindiki’s law firm was based on her pregnancy, and therefore discriminatory, unfair, unlawful, and in violation of the Employment Act, 2007, the Contract of Employment, and the Constitution.
On his side, Kindiki through Moses Mpuria, the Director of Finance, Administration and Strategy at the law firm, told court that Mokaya was retained by the firm not on account of her exemplary performance but actually the retention was on an ex-gratia basis.
Mpuria said lawyer Mokaya failed her bar examinations whilst serving as a trainee on three different occasions and advocate Duncan Oketch, who worked for the firm, pleaded for her to be retained until she completed her tests.
Although she passed her exams on third attempt and was admitted as an advocate in December 2016, he said, her performance was slightly below average.
Mpuria further said it is not true that the employment of Mokaya was not terminated on account of her pregnancy but because the firm could no longer afford to pay her and other employees due to financial constraints.
However, the Judge further dismissed Kindiki’s law firm’s argument that termination of the employment of Mokaya was due to financial constraints.
“l dismissed claims that the dismissal was due to financial constraints because, after the termination, she was replaced with another advocate named Lilian Nyaga,” he stated.
Justice Nduma said the law firm did not give a one-month notice of redundancy to the petitioner and the Labour Officer.
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