[2024] KEELRC 13444 (KLR)

Kirui v Lynn Ngugi Media Network Limited (Employment and Labour Relations Cause E664 of 2022) [2024] KEELRC 13444 (KLR) (18 December 2024) (Judgment)

Neutral citation: [2024] KEELRC 13444 (KLR)

Republic of Kenya

In the Employment and Labour Relations Court at Nairobi

Employment and Labour Relations Cause E664 of 2022

HS Wasilwa, J

December 18, 2024

Between

Mercy Chebet Kirui

Claimant

and

Lynn Ngugi Media Network Limited

Respondent

Judgment

1. The Claimant instituted this suit by a statement of claim dated 1st August 2022, alleging to have been unlawfully terminated from employment by the Respondent. She sought the following reliefs: -a.Claimed dues for unlawful termination as listed below;Compensation for unfair termination Ksh. 1,200,000/- (12 months' salary) Service pay (8 months) Ksh. 33,000/- (1. 25*8*3333)Leave pay (8 months) Ksh. 81,658. 5/- (1. 75*14*3333)General Damages for being terminated due to pregnancy related issues Ksh. 2,000,000/-b)Costs of this suit.c)Interest on (b); andd)Any other relief.

2. The Claimant states that she was employed by the Respondent and worked on diverse dates between November 2021 and June 2022 as per her stipulated employment contract. She was covered by all Employment Laws in Kenya. On the 17th of June 2022, the Respondent terminated her employment without any justifiable reason. The Claimant contends that the dismissal was done unlawfully, illegally, maliciously, and without due process and procedures. The claimant avers that the Respondent terminated her contract without following the right procedures making the termination illegal as the she was not accorded an opportunity to be heard.

Respondent’s Case 3. The Respondent, in a Memorandum of Response dated 22nd November 2022, denied most of the claims in the Claimant’s statement of claim. The Respondent asserted that no employment contract existed between the parties and averred that the Claimant was engaged on a piecework basis to provide video editing services as needed. The Respondent contended that the Claimant received instructions for specific tasks and was paid based on the work completed, rather than being employed on a salaried contract.

4. The Respondent stated that the Claimant never reported to their Kilimani offices as her presence was not required for video editing services. She argued that the Claimant was dishonest in claiming employment since November 2021, as she was a full-time employee at Tuko Media Limited during the same period until her termination in December 2021. The Respondent further alleged that the Claimant often failed to meet work expectations, responded defensively to corrections, and made demeaning remarks towards the CEO. This conduct led to delays in meeting investor demands, and her services were terminated for gross misconduct and insubordination.

5. The Respondent avers that there was no employment contract by conduct, implication or in writing. Further, the Respondent avers that due process for termination of her provision of video editing services was followed. She was often called to account and give an explanation on mistakes in her work and without course she was not available or was not ready for correction.

6. The Respondent stated that the Claimant was invited to respond to her mistakes but failed to avail herself. In an email dated 11th July 2022 at 5:14 pm, the Claimant admitted to being defensive and acknowledged making rookie mistakes, stating,“I apologise for being defensive and having rookie mistakes on this story. I am now ready for corrections."The Respondent asserted that the defensiveness referenced in the email arose when the Claimant was called to account for her actions but failed to provide a satisfactory explanation.

7. The Respondent denied allegations that the Claimant’s termination was based on pregnancy, terming them as hearsay without merit. She argued that the Claimant's pregnancy did not affect her work and asserted that her termination was lawful and based on valid reasons. The Respondent denied the court's jurisdiction, stating that the matter concerned a breach of service contract rather than employment. She further contended that the Claimant had not approached the court in good faith and that her claim was baseless, misplaced, and an abuse of court process. The Respondent prayed for the dismissal of the suit with costs.

Claimant’s written submissionsThe Claimant raised four issues for determination: Whether the Claimant was employed by the Respondent 8. The Claimant submits that she was employed by the Respondent as a video editor between November 2021 and June 2022, as evidenced by WhatsApp communications, Mpesa salary payments, and meeting minutes attached to the bundle of documents. She provided viva voce evidence to establish the employment relationship, fulfilling her burden of proof under the Employment Act and precedent set in Zarika Adoyo Obondo v. Tai Shujun & Another (2020) eKLR.

Whether the termination of the Claimant’s employment was wrongful and unlawful 9. The Claimant argues that her termination contravened Sections 41, 43, and 45 of the Employment Act, as no valid reason or disciplinary procedure was provided. Instead, the Respondent alluded to pregnancy-related discrimination, contrary to Section 46 of the Act, which deems such termination automatically unfair. Citing Walter Ogal Anuro v. TSC (2013) eKLR, the Claimant submits that her termination lacked both substantive justification and procedural fairness, making it unlawful.

Whether the Claimant is entitled to the prayers sought 10. The Claimant seeks:i.Compensation for unfair termination (Kshs. 1,200,000/-) under Section 49 of the Employment Act.ii.Service pay and leave pay for the 8 months worked, as no evidence of compliance by the Respondent was provided.iii.General damages (Kshs. 2,000,000/-) for pregnancy-based discrimination under Section 5(3) of the Act.iv.Costs and interest of the suit.The Claimant submits that the principle of restitutio integrum and rulings such as Joseph Mwaniki Ng’ang’a vs United Millers Limited (2022) eKLR and DK Njagi Marete v. TSC (2013) eKLR support her claim for fair redress proportionate to her economic loss.

Who should bear the costs of the suit? 11. The Claimant contends that she was unfairly terminated and has since been unable to secure alternative employment. Citing Jasbir Singh Rai v. Tarlochan Singh Rai (2014) eKLR, the Claimant submits that costs should be awarded to compensate her for the expenses incurred in seeking justice.The Claimant concludes by praying for judgment in her favor as outlined in her submissions, with costs of the suit awarded to her.

Respondent’s Written SubmissionsThe Respondent raised three issues for determination: Whether there was an employment relationship between the Claimant and the Respondent. 12. The Claimant alleged an employment relationship with the Respondent, which the Respondent vehemently denies. The Claimant relied on unsigned minutes, an unsigned termination letter dated 17th June 2022, emails dated 11th July 2022, and screenshots of alleged money transactions and WhatsApp conversations. The Respondent highlighted:i.The screenshots lacked proof of origin or nexus with the Respondent.ii.The Claimant admitted during cross-examination that she worked to earn shares in the company, disqualifying her as an employee.iii.Contradictions emerged regarding her alleged constant payment of Kshs. 100,000 per month.iv.Section 120 of the Evidence Act prohibits judicial estoppel, precluding the Claimant from asserting inconsistent positions.

13. In Carol Construction Engineers Ltd & another v National Bank of Kenya [2020] eKLR, the court upheld the principle that one cannot contradict their prior statements or actions. Similarly, in Serah Njeri Mwobi v John Kimani Njoroge [2013] eKLR, the Court of Appeal confirmed the doctrine of estoppel.The Claimant's reliance on WhatsApp communication was insufficient, as the identities of alleged colleagues were unverifiable. Further, the minutes and termination letter were unsigned and inadmissible under Section 35(1) of the Evidence Act, which requires the maker to be called as a witness.

14. The Respondent cited Hezekiah Oira v Patrick Quarcoo [2017] eKLR, which emphasizes that documents without a maker lack evidentiary value. The Respondent concluded that this was a contract for services, not an employment contract, and therefore falls outside the Employment Act's purview.

Whether there was wrongful termination 15. Article 41 of the Constitution guarantees fair labor practices, further elaborated under the Employment Act, 2007. The Respondent submitted that:i.Termination must meet the standards of fairness under Section 45(2) of the Employment Act, which requires a valid reason and fair procedure.ii.Section 47(5) places the burden on the employee to prove unfair termination and on the employer to justify the reasons for termination.

16. The Respondent argued that:i.The Claimant failed to attend meetings or adhere to work expectations, causing dissatisfaction among clients. These constituted valid reasons for termination.ii.Invitations for performance reviews were extended to the Claimant, fulfilling the procedural fairness requirement.

17. The Respondent cited Josephine M. Ndungu & others v Plan International Inc [2019] eKLR, where the court held that employers must prove fair reason and procedure. The Respondent asserted that the Claimant’s conduct, capacity, and compatibility justified the termination, which was procedurally fair and legally compliant.

Whether the Claimant is entitled to the reliefs sought 18. The Claimant sought compensation of Kshs. 1,200,000 and other reliefs. The Respondent countered:i.The Claimant’s role was intermittent and project-based, with no fixed salary or long-term engagement.ii.The prayer for 12 months’ salary is unsupported by evidence and contravenes principles in Kadenge Karisa Konde v Coast Clay Works Ltd [2016] eKLR.

19. The Respondent noted that: the Claimant worked less than five months and was not entitled to leave pay or other reliefs due to the short, intermittent engagement. Section 28(1) of the Employment Act grants leave only after 12 months of service.

20. On the prayer for general damages for alleged pregnancy discrimination, the Respondent submitted that:i.The Claimant failed to prove that the termination was related to pregnancy.ii.The Respondent was unaware of the Claimant’s pregnancy, and Section 107(1) of the Evidence Act places the burden on the party asserting a fact to prove it.

21. The Respondent cited GMV v Bank of Africa Kenya Ltd [2013] eKLR, where the court held that the employee must prove adverse action due to pregnancy. Additionally, the Respondent referred to SWM v Hardware Trading Store Ltd & another [2021] eKLR, where the court stated that general damages are not due without proof of unfair termination.

22. The Respondent concluded by submitting that the Claimant failed to prove an employment relationship or unfair termination. The claim lacked legal merit and bordered on self-enrichment. The Respondent urged the court to dismiss the claim in its entirety.

23. I have examined all the evidence and submissions of the parties herein. In determining this claim I set down the flowing issues for consideration; -1. Whether the claimant was an employee of the Respondent and if yes.2. Whether the termination of the claimant was affair and Justified.3. What remedies if at all the claimant is entitled to.

Issue No 1 24. The claimant has submitted that she was an employee of the Respondent having been employed between November 2021 and June 2022. She was either never issued with an appointment letter nor has any been submitted before this court, Other than this, the claimant sought to rely on WhatsApp screen shots which show her attendance of staff meetings and discussions on staff matters There is also evidence that she was consistently paid kshs 100,000 monthly as per the Mpesa messages provided.

25. The Respondent denied employing the claimant but on record the claimant submitted a termination letter dated 17th June 2022 signed by the Respondent indicating that her services had been terminated with effect form that day giving one month’s notice with pay.

26. The respondent also indicated that the claimant was an employee of another organization during the same period as so was not their employee. Evidence of the employment with the other firm has however not been submitted by the respondent due to the fact that the responded terminated the employment of the Claimant, this is an indication that the claimant was in their employment. It is therefore my finding that the claimant was an employee of the respondent and that is why the respondent terminated her services

Issue No 2 27. As to whether the termination was affair and justified or not, the claimant only received a notice to terminate her services from the Respondent giving her one month’s salary in lieu. There is no indication that there were valid reasons for the termination nor was the claimant subjected to a fair hearing. The process envisaged under the law is found at section 41 of the Employment Act 2007 which states as follows;-41. (1).Subject to section 42 (1), an employer shall, before terminating the employment of an employee, on the grounds of misconduct, poor performance or physical incapacity explain to the employee, in a language the employee understands, the reason for which the employer is considering termination and the employee shall be entitled to have another employee or a shop floor union representative of his choice present during this explanation.

28. Section 45(2) of the Employment Act 2007 also states as follows;-(2)A termination of employment by an employer is unfair if the employer fails to prove―a.that the reason for the termination is valid;b.that the reason for the termination is a fair reason―i.related to the employees conduct, capacity or compatibility; orii.based on the operational requirements of the employer; and(c)that the employment was terminated in accordance with fair procedure.

29. In view of the fact that the respondent didn’t establish the existence of valid reasons and adherence to fair procedures, it is my finding that the claimant’s termination was unfair and unjustified.

Issue no 3 30. As concerns remedies, the claimant sought to be paid compensation for the unfair termination, service pay for the 8 months worked, leave pay and damages for termination due to pregnancy related issues. On issue of damages, the claimant didn’t produce an iota of evidence that she was pregnant during the time of termination and didn’t demonstrate that the termination was due to pregnancy related issues. Damages are accordingly not payable.

31. As concerns compensation for the unfair termination, the finding of this Court is that the termination was unfair and unjustified. However, given the length of time the claimant had served the Respondent, I find that she is entitled to modest compensation of 4 months’ salary which I grant at 4 x 100,000= Kshs 400,000.

32. I also award her prorated leave pay which is 8 months of 12 months of her salary = Kshs 66,000.

33. The claimant is also entitled to prorated service pay of 15 days’ pay of the 8months= Kshs 33000. Total Awarded = Kshs 499,000 less statutory deductions.

34. The respondent will pay costs of this suit plus interest at Court rates with effect from the date of this judgment.

DATED, SIGNED AND DELIVERED VIRTUALLY IN NAIROBI THIS 18TH DAY OF DECEMBER, 2024. HELLEN WASILWAJUDGEORDERIn view of the declaration of measures restricting Court operations due to the COVID-19 pandemic and in light of the directions issued by His Lordship, the Chief Justice on 15th March 2020 and subsequent directions of 21st April 2020 that judgments and rulings shall be delivered through video conferencing or via email. They have waived compliance with Order 21 Rule 1 of the Civil Procedure Rules, which requires that all judgments and rulings be pronounced in open Court. In permitting this course, this Court has been guided by Article 159(2)(d) of the Constitution which requires the Court to eschew undue technicalities in delivering justice, the right of access to justice guaranteed to every person under Article 48 of the Constitution and the provisions of Section 1B of the Procedure Act (Chapter 21 of the Laws of Kenya) which impose on this Court the duty of the Court, inter alia, to use suitable technology to enhance the overriding objective which is to facilitate just, expeditious, proportionate and affordable resolution of civil disputes.A signed copy will be availed to each party upon payment of Court fees.HELLEN WASILWAJUDGE