https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1713

Mutuota v Besco Import & Export Trading Company Ltd (Constitutional Petition E109 of 2025) [2026] KEELRC 1713 (KLR) (19 June 2026) (Judgment) Neutral citation: [2026] KEELRC 1713 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nairobi Constitutional Petition E109 of 2025 JW Keli, J June 19, 2026 IN THE MATTER OF THE ENFORCEMENT OF THE BILL OF RIGHTS UNDER ARTICLES 3, 10, 22, 23, 27, 28, 41, 47 AND 50 OF THE CONSTITUTION OF KENYA, 2010 AND IN THE MATTER OF THE ALLEGED VIOLATION OF ARTICLES 27,28 AND 41 OF THE CONSTITUTION OF KENYA, 2010 AND IN THE MATTER OF SECTIONS 5 (3), 29, 45 AND 46 OF THE EMPLOYMENT ACT 2007 AND IN THE MATTER OF CONSTRUCTIVE DISMISSAL AND DISCRIMINATION ON ACCOUNT OF PREGNANCY Between Nancy Nyaguthi Mutuota Petitioner and Besco Import & Export Trading Company Limited Respondent Judgment 1.The Petitioner commenced this suit vide a Petition dated 2nd June 2025 seeking the following orders:-a.A Declaration that the Respondent's actions, including unilateral salary reduction, pretextual disciplinary summons, coerced medical disclosure, and forced early maternity leave, violated the Petitioner's rights under Articles 27, 28, and 41 of the Constitution of Kenya, 2010.b.A Declaration that the Respondent's conduct constituted constructive dismissal under the Employment Act, 2007.c.An Order directing the Respondent to pay the Petitioner terminal dues (based on monthly salary for a cashier as per the Regulation of Wages (General) (Amendment)2024 (Legal Notice No. 164), plus house allowance) including:i.One month's salary in lieu of notice Kshs.41,815.06/-ii.May 2025 Salary Kshs.41,815.06/-iii.Compensation for unfair termination equivalent to 12 months' gross salary, pursuant to Section 49(1) (c) of the Employment Act,2007 Kshs.501,780.70/-iv.Underpayment(Nov 2024 to 31st May 2025) Kshs. 138,705.41/-(May to October 2024) Kshs.70,331.90/-v.Unpaid Leave Kshs.33,773.70 /-v.Unremitted NSSF deductions October 2023 to May 2025 Kshs. 47,768/-TOTAL. Kshs.875,989.83/-d.An Order for general damages to compensate the Petitioner for the violation of her constitutional rights under Articles 27, 28, and 41, including discrimination, degrading treatment, and unfair labour practices.e.An Order for exemplary damages to deter the Respondent from similar unconstitutional conduct in the future.f.An Order directing the Respondent to issue the Petitioner with a Certificate of Service as required under Section 51 of the Employment Act, 2007.g.Costs of this Petition, together with interest at court rates from the date of judgment until payment in full.h.Interest on c, d and e above at court rates from the date of judgment until payment in full.i.Any other or further relief that this Honourable Court deems just and equitable to grant. 2.The Petition was filed alongside the Supporting Affidavit of the Petitioner sworn on 2nd June 2025, and annexures thereto. 3.In response to the Petition the Respondent filed a Notice of Preliminary Objection dated 30th September 2025. They later filed a response to petition dated 2nd March 2026 with annexures thereto. The Petitioner’s case in summary 4.The Petitioners case is that she was employed by the Respondent as a cashier on 25th May 2024, at a monthly salary of Kshs.27,726.17 /-, her working hours being from 9:00 a.m. to 6:00 p.m. Monday to Saturday; and from 12:00 p.m. to 9:00 p.m. on public holidays, where she was paid Kshs. 800/- per day. In November 2024, the Respondent, without consultation or justification, transferred the Petitioner from the cashier desk to the shelves section as a line attendant and unilaterally reduced her net salary to Kshs.22,000/-, to be paid in equal weekly installments. The change was communicated to the Petitioner by the Manager, "Jay", a Chinese national, after she was directed to him by "Lin”, another Chinese national, to collect her final wages. The change was made without the Petitioner's consent, contrary to Section 10(5) of the Employment Act, 2007. 5.It is averred that on 20th May 2025, the Petitioner was summoned by the Respondent's accountant, Christine Nyaboke, under the instructions of the manager, under the pretext of collecting a warning letter. Upon arrival, the Petitioner states that she was photographed in the Respondent’s hallway to document her pregnancy, together with her other pregnant colleague one Grace Njambi Kamau. Both employees were taken to Avenue clinic for pregnancy/gestation period tests with reports to be submitted by 8:00 p.m. the same day. They waited until 8.00 pm for the Respondent to receive the reports, which is when they were released, after Christine Nyaboke confirmed that there were no warning letters in their personnel files. 6.The Petitioner’s case is that the demand for medical reports to confirm gestational age, which for the Petitioner was 34 weeks as at 20th May 2025 was invasive, degrading, and lacked any legal basis under the Employment Act or other applicable statutes. 7.The Petitioner states that on 21st May 2025, Christine Nyaboke instructed the Petitioner not to report to work from 22nd May 2025, and to sign a maternity leave form forthwith. She also asked her to return the new employment contract commencing lst June 2025 for the through which the Respondent negatively amended the terms of her maternity leave. On 22nd May 2025, Christine Nyaboke requested the Petitioner through a telephone call, to report to work on 24th May 2025. The following day, on 23rd May 2025, the Petitioner was moved from the jewelry section, where she worked while seated, to the shelves section where attendants stayed on their feet all day. On 24th May 2025, the Petitioner was issued with a new contract which contained an amended maternity leave clause, requiring her to proceed on maternity leave effective 22nd May 2025 without pay, and promising full pay only upon her resumption to work. On 26th May 2025, the Petitioner was returned to the jewelry section but reassigned to the customer service desk. Christine Nyaboke insisted that she signs the new contract and returns the previously signed one. 8.It is averred that the Respondent, by compelling the Petitioner to commence unpaid maternity leave prematurely on 22nd May 2025 at 34 weeks pregnant without her consent, violated Section 29 of the Employment Act 2007, which entitles the Petitioner to choose the timing of her maternity leave. The Respondent's letter dated 29th May 2025, requiring the Petitioner to return to work and expressly admitting the premature imposition of leave, constitutes an admission of constructive dismissal on account of pregnancy. Through their conduct, the Respondent unlawfully altered the Petitioner's employment terms, breaching her contract. 9.The Petitioner contends that the Respondent's actions-including the unilateral salary reduction, coercive and public medical disclosures, misleading disciplinary summons along with cooked up warning letters, and imposition of premature maternity leave, amount to constructive dismissal, as the Respondent created intolerable working conditions that forced the Petitioner to leave her employment. 10.It is the Petitioner’s case that the Respondent’s conduct as described violated her Article 27 right to equality and freedom from discrimination on grounds including sex, pregnancy, and health status. The particulars of discrimination are that: the Respondent targeted the Petitioner and her pregnant colleague for disciplinary action under the guise of phone use, solely due to their pregnancies; forced her to disclose/submit confidential medical reports to confirm her pregnancy, a requirement not imposed on non-pregnant employees; and imposed early maternity leave at 34 weeks, a prejudicial action based on the Petitioner’s pregnant status. The Respondent also violated the Petitioner’s Article 28 right to human dignity by: subjecting her to degrading treatment through the supervisor's actions of photographing her pregnancy in the hallway and frog marching her to Avenue Clinic for gestational tests; and forcing her to proceed on early maternity leave without her consent, undermining her autonomy and dignity as a pregnant employee. Finally, the Petitioner avers that her Article 41 right to fair labour practices was violated when the Respondent: unilaterally reduced the Petitioner's salary in November 2024 without consultation, contrary to Section 10(5) of the Employment Act, 2007; imposed a pretextual disciplinary process that targeted pregnant employees, violating their right to fair administrative action under Article 47; and constructively dismissed the Petitioner through forced early maternity leave, contrary to Section 46 of the Employment Act, 2007, which prohibits dismissal on grounds of pregnancy. In summary, the Petitioner states that she was denied fair remuneration, reasonable working conditions, and protection from unfair dismissal. Respondent's case in brief 11.The Respondent challenges the jurisdiction of the Court to hear and determine this matter on the premise that Section 7 (1) of the Magistrates’ Court Act 2015 confers jurisdiction on a magistrate's court to exercise jurisdiction and powers in proceedings of a civil nature in which the value of the subject matter does not exceed—(e) five million shillings, where the court is presided over by a resident magistrate; while Section 8 (1) of the same Act provides that a magistrate's court shall have jurisdiction to hear and determine applications for redress of a denial, violation or infringement of, or threat to, a right or fundamental freedom in the Bill of Rights. 12.It is the Respondent’s case that the proper court which should entertain the present dispute is the Resident Magistrates court. 13.While the Respondent admits that it employed the Petitioner on or about October, 2023, it states that her employment was on casual basis and she earned a salary of Kshs. 5000/- payable weekly. She was employed when the company beginning to operate a shop/store at Garden City Mall, Nairobi. Sometime in 2024, the Respondent and Petitioner entered into a verbal agreement for the Petitioner to work under successive six-month contracts in the position of line attendant. The Petitioner's terms of engagement were converted from casual to contractual as the store/shop was now operational. The Petitioner and Respondent executed an employment agreement on 13th May 2025 and 14th May 2025. 14.It is admitted that the Petitioner earned a gross salary of Kshs. 23, 777.12 subject to statutory deductions, leaving her with a net salary of Kshs. 22,000/-. It is also admitted that Clause 8 of the employment contract provided that the Petitioner was entitled to a fully paid maternity leave in the event the employee fell pregnant. 15.The Respondent states that it was unaware that the Petitioner was pregnant as she did not notify it of this position until May, 2025 when she deserted her duties without leave. She certainly did not apply for maternity leave. The Respondent company sent out messages and calls to the Petitioner to return to work until the time when she wished to proceed for maternity leave. The communication went unanswered and the Petitioner never reported back to work. The Respondent categorically denies that it dismissed the Petitioner from employment on account of being pregnant; and that it forced, coerced and /or threatened her to provide a medical report to prove her gestational status. It insists that the Petitioner went to Avenue Healthcare to get tested of her own volition. It points out that the name of the 'Supervisor' who demanded that she provides a medical report has not been indicated. It also queries why the Respondent would wait until the Petitioner was almost giving birth so as to dismiss her from employment, or execute a contract of employment outlining payment of maternity leave yet under the same breath dismiss her from employment. 16.The Respondent points out that the Petitioner has not produced any evidence of her purported dismissal from employment nor provided any witnesses to corroborate the fact that she was dismissed from employment on 21st May 2025. Further, they state that her averments are contradictory in that she states that she was terminated from employment on 21st May 2025 and instructed not to report to work from 22nd May 2025, and at the same time she was requested to sign a new contract to commence work from 1st June 2025. The claims of dismissal from work, according to the Respondent, are an afterthought meant to justify the Petitioner’s desertion from work. The Respondent denies that they provided the Petitioner with a new contract contained an amended maternity clause dated 24th May 2025, and state that this contract has not been produced before the Court by the Petitioner. 17.On the claim that the Petitioner was forced to remain on her feet at 34 weeks pregnant, the Respondent avers that the Petitioner was employed as a Line attendant as evidenced from the contract and the payroll, which means that she had to stay on her feet attending to customers and arranging merchandise from time to time, a fact that was well known to her. The Respondent insists that the contract that is valid between it and the Petitioner is dated 13th May 2025 and 14th May 2025, and not the non-existent contract allegedly signed on 24th May 2025. which has not been brought before this court. 18.It is the Respondent’s case that the Petitioner was fully paid her salary up to the month of May 2025 when she deserted duties. On the claim that the Petitioner was underpaid by the Respondent and should be paid a minimum wage of Kshs. 41,815.06 as a cashier, the Respondent denies that the Petitioner was ever employed as a cashier or issued with duties commensurate with that position, and states that the Petitioner never possessed the necessary qualifications for this position. It reiterates that the Petitioner was only ever employed as a line attendant as evidenced by her employment contract. 19.The claim of non-remittance of NSSF and NHIF/SHA by the Respondent is denied. The Respondent draws the Court’s attention to an NSSF statement produced by the Petitioner which they state clearly shows that the Respondent remitted those statutory dues from July 2023 up to May 2025. 20.The Respondent categorises the Petitioner's claim as a false narrative meant to paint the Respondent in a bad light and to support the Petitioner’s narrative that she was dismissed from employment. It states that the Petitioner owed a duty to the Respondent to inform it that she was expectant and was proceeding on maternity leave, as provided for by the contract of employment executed by both parties. Determination 21.Following directions by the court that parties should file written submissions, both parties complied. Issues for determination 22.In her submissions dated 2nd December 2025, the Petitioner identified the following issues for determination: -i.Whether the Preliminary Objection dated 30th September 2025 is merited;ii.Whether the Respondent discriminated against and unlawfully terminated the Petitioner on account of her pregnancy;iii.Whether the Petitioner was constructively dismissed by the Respondent; andiv.Whether the Petitioner is entitled to the reliefs sought, including terminal dues, damages, and costs. 23.On their part, the Respondents identified a single issue for determination in their submissions dated 13th November 2025, namely:i.Whether this Honourable Court has jurisdiction to hear and determine the present Petition in view of Sections 7(1) and 8(1) of the Magistrates’ Court Act, 2015;And the following issues for determination in their submissions dated 2nd March 2026:i.Whether the Petition meets the constitutional threshold required for enforcement of fundamental rights and freedoms.ii.Whether the dispute before the Court is properly a constitutional matter or an ordinary employment dispute governed by the Employment Act.iii.Whether the Petitioner has established discrimination on account of pregnancy.iv.Whether the Petitioner has established constructive dismissal.v.Whether the Petitioner’s constitutional rights were violated.vi.Whether the Petitioner is entitled to the reliefs sought. 24.The court discerned the issues for determination in the petition to be-i.Whether the notice of preliminary objection by the respondent had meritii.Whether the Petition meets the constitutional threshold required for the enforcement of fundamental rights and freedoms.iii.Whether the Respondent discriminated against and unlawfully terminated the Petitioner on account of her pregnancy;iv.Whether the Petitioner was constructively dismissed by the Respondent; andv.Whether the Petitioner is entitled to the reliefs sought, including terminal dues, damages, and costs. Whether the notice of preliminary objection by the respondent had merit 25.The respondent filed a Notice of Preliminary Objection dated 30th September 2025 raising the following points of law-a.That by dint of Section 7 (1) of the Magistrates’ Court Act 2015, this Honorable Court lacks the jurisdiction to handle this civil suit by which the Petitioner suit herein is founded on. 2. Section 7 (1) and 8 (1) of the Magistrates’ Court Act Section 7(1) provides that a magistrate's court shall have and exercise such jurisdiction and powers in proceedings of a civil nature in which the value of the subject matter does not exceed— (e) five million shillings, where the court is presided over by a resident magistrate.b.Section 8 (1) provides Subject to Article 165(3)(b) of the Constitution and the pecuniary limitations set out in section 7(1), a magistrate's court shall have jurisdiction to hear and determine applications for redress of a denial, violation or infringement of, or threat to, a right or fundamental freedom in the Bill of Rights. 3. The effect of Section 7(1) and 8(1) of the Act is that judicial authority is already conferred upon a specific court, namely the Resident Magistrates court and not this Honorable Court. 26.The respondent submitted as follows on the objection- This Honourable Court has consistently held that the High Court Employment and Labour Relations Court should only entertain employment disputes where the employee’s monthly salary exceeds Kshs. 80,000, or where the value of the claim otherwise exceeds the pecuniary limit of subordinate courts. For instance, in Peter Nyamai & 7 Others v M.J Clarke Limited [2013] eKLR, where the Court held that employment disputes involving lower-income employees fall within the Magistrates’ Court’s jurisdiction. This case also affirmed that the Magistrates’ Court has concurrent jurisdiction to handle employment matters below the pecuniary threshold and that filing such cases in the ELRC amounts to forum shopping. Given that the Petitioner earned Kshs. 27,726, her claim is clearly within the Magistrates’ Court’s pecuniary jurisdiction. It is also worth noting that the Petitioner has styled her claim as a constitutional petition, invoking Articles 27, 28, and 41 of the Constitution. However, the mere invocation of constitutional provisions does not transform a standard employment dispute into a constitutional cause. In Gabriel Mutava & 2 Others v Managing Director, Kenya Ports Authority & Another [2016] eKLR, the Court of Appeal cautioned that not every grievance should be constitutionalised. Similarly, in Nick Githinji Ndichu v Clerk, Kiambu County Assembly & Another [2014] eKLR, (Petition 11/2014) the Court held that employment disputes which can be effectively addressed under the Employment Act should not be disguised as constitutional petitions. The substance of this claim is a straightforward employment dispute alleging unfair treatment and constructive dismissal. Such matters fall squarely within the jurisdiction of the Magistrates’ Court, not the ELRC sitting as a constitutional court. Jurisdictional limits are not technical barriers; they are the guardrails of justice. They ensure that disputes are handled efficiently, proportionately, and affordably, principles that ultimately protect both litigants and the integrity of the judicial process. The Petitioner stands to benefit from pursuing her case in the Magistrates’ Court, which is accessible, minimal backlog, and equally empowered to grant appropriate remedies under the Employment Act and the Constitution. We emphasise that ELRC courts have consistently upheld jurisdictional limits in similar situations. For example, they have struck out employment claims that fell Page 3 of 5 within the jurisdiction of the Magistrates cour. The court has also transferred cases to the Magistrates Court where the claim value were within the lower court’s pecuniary limits and lastly the ELRC has reiterated that the decentralisation of jurisdiction to magistrates under Gazette Notice No. 6024 of 2018 was intended to prevent parties from overburdening the superior court with matters properly within subordinate jurisdiction. These approaches demonstrate a consistent judicial approach that the Employment and Labour Relations Court will not assume jurisdiction where the statutory and pecuniary limits clearly place the matter before the Magistrates’ Court. Jurisdiction is not a procedural nicety, it is the very foundation of judicial power. Once found wanting, a court must immediately decline to proceed. The Petitioner’s monthly salary of Kshs. 27,726 places her case firmly within the pecuniary jurisdiction of the Magistrates’ Court, as recognised in both statute and precedent. The Respondent therefore respectfully urges this Honourable Court to: Find that it lacks jurisdiction to entertain this Petition; and Strike out the Petition with costs to the Respondent. 27.Conversely, the respondent submitted as follows- The Employment and Labour Relations Court has exclusive original jurisdiction over this dispute irrespective of salary level 162(2) (a) of the Constitution and Section 12(1) of the Employment and Labour Relations Court Act, 2011 confer exclusive original jurisdiction on this Court over all disputes relating to employment and labour relations and over the enforcement of constitutional rights in the employment context. This Court's jurisdiction to entertain constitutional petitions alleging violations of fundamental rights in the employment context was affirmed by the High Court of Kenya (Mwita, J) in Charles Oyoo Kanyangi & 41 others v Judicial Service Commission of Kenya [20181 eKLR (Petition No. 529 of 2017) while transferring an employment-related constitutional petition to the Employment and Labour Relations Court, thus:"30. In that regard, ELRC has jurisdiction to hear disputes that, though touching on human rights and fundamental freedoms, arise from the nature of the relationship between the parties. In the case of United States International University v Attorney General (supra)……Gazette Notice No. 6024 of 2018, which the Respondent indirectly refers to. confers jurisdiction on Senior Resident Magistrates and above to hear and determine labor disputes, excluding trade disputes, where an employee's gross monthly salary does not exceed Kshs.80,000/-. However, this does not oust the ELRC's constitutional and statutory jurisdiction over employment disputes related to discrimination, or other constitutional violations arising within the employment context. Accordingly, this Court has exclusive jurisdiction over the present Petition, and the Preliminary Objection is wholly misconceived and must be dismissed with costs. Decision on the Notice of preliminary objection 28.Fortunately, the court did not have to determine the question of law as the Supreme Court, whose decision is binding, determined the question of the jurisdiction of the Magistrates’ court under sections 7 and 8 of the Magistrates court in Khalid & 16 others v Attorney General & 2 others (Petition21 of 2017) [2019] KESC 93 (KLR) (18 October 2019) (Judgment) Hussein Khalid And 16 others v Attorney General & 2 others [2019] eKLR Neutral citation: [2019] KESC 93 (KLR) . The Supreme court held as follows- ‘118…..the Magistrates Court Act No.26 of 2015 has since been enacted to give effect to articles 23(2) and 169(1)(a) & (2) of the Constitution; to confer jurisdiction, functions and powers on the magistrates' courts; to provide for the procedure of the magistrates' courts, and for connected purposes. Section 8 of the said Act vests jurisdiction in the magistrate court to hear and determine applications for enforcement of constitutional rights, but limited only to claims on freedom from torture and cruel, inhuman or degrading treatment or punishment, and freedom from slavery or servitude as guaranteed in article 25(a) and (b) of the Constitution. The jurisdiction of the Magistrates’ court does not also extend to determination of claims for compensation for loss or damage suffered in consequence of a violation, infringement, denial of a right or fundamental freedom in the Bill of Rights. The section 8 provides:“Claims relating to violation of human rights 8(1) Subject to article 165(3)(b) of the Constitution and pecuniary limitations set out in section 7(1), a magistrate’s court shall have jurisdiction to hear and determine applications for redress of a denial, violation or infringement of, or threat to, a right or fundamental freedom in the Bill of Rights.(2)The applications contemplated in subsection (1) shall only relate to the rights guaranteed in article 25(a) and (b) of the Constitution.(3)Nothing in this Act may be construed as conferring jurisdiction on a magistrate’s Court to hear and determine claims for compensation for loss or damage suffered in consequence of a violation, infringement, denial of a right or fundamental freedom in the Bill of Rights.(4)The Chief Justice shall make rules for the better exercise of jurisdiction of the magistrate’s courts under this section.”119.It consequently follows that the position in which the appellants sought to clarify regarding the jurisdiction of the Magistrate’s Courts in dealing with the enforcement of the Bill of Rights has since been addressed by section 8 of the Magistrates’ Court Act. However, that legislation was not in force when the Appellants were first before the Magistrate’s Court and the Magistrate’s Court at that time rightly applied the applicable law. Parliament has granted to the Magistrates Courts power to consider applications on alleged violations of the Bill of Rights but has limited that power to only two rights under article 25(a) and (b): freedom from torture and cruel, inhuman or degrading treatment or punishment; and freedom from slavery or servitude. This limitation is constitutional as Parliament does not bar a person from bringing a case alleging violation of his right but only limits the forum where that cause can be done. This was captured by the High Court of Australia in the case of Plaintiff S157 of 2002 v The Commonwealth of Australia [2003] HCA 2 211 CLR 476; 77 ALJR 454; 195 ALR 24 (which decision was cited by this court in Judges & Magistrates Vetting Board & 2 others v Centre for Human Rights & Democracy & 11 others [2014] eKLR) thus: “ The Parliament cannot abrogate or curtail the Court's constitutional function of protecting the subject against any violation of the Constitution, or of any law made under the Constitution. However, in relation to the second aspect of that function, the powers given to Parliament by the Constitution to make laws with respect to certain topics, and subject to certain limitations, enable Parliament to determine the content of the law to be enforced by the Court”120.We therefore find and hold that there is now a legislation that provides on how Magistrates courts may determine allegations of infringement of fundamental rights. Though limited, the same is constitutional as an aggrieved person, while he might not on all allegations approach the Magistrate courts, still has recourse to the High Court, which is the court constitutionally empowered to address allegations of violations of the Bill of Rights.’’ In the upshot, It is held that the jurisdiction of the Magistrates’ court under section 8 of the Magistrates Court does not extend to the determination of claims for compensation for loss or damage suffered in consequence of a violation, infringement, denial of a right or fundamental freedom in the Bill of Rights. The instant petition seeks compensation for the violation of the right not to be discriminated against on the grounds of pregnancy. The Magistrate's court has no jurisdiction to determine the issue. The Notice of Preliminary Objection is disallowed. Whether the Petition meets the constitutional threshold required for enforcement of fundamental rights and freedoms. 29.The petitioner submitted that- Section 12(3) (c) of the ELRC Act gives this Court jurisdiction to hear applications for the enforcement of rights under Articles 27, 28, 41 and 47 of the Constitution in the context of employment and labour relations. 13. The Petitioner's claim is not a disguised employment dispute as alleged by the Respondent. It is a direct constitutional petition alleging pregnancy discrimination (Article 27(4) & (5), violation of dignity (Article 28) and denial of fair labour practices (Article 41). These are core Bill of Rights violations that this Court is specially mandated to protect 30.Conversely, the respondent submitted as follows- . It is trite law that a party alleging violation of constitutional rights must plead the alleged violations with reasonable precision. The legal standard governing constitutional pleadings was established in the seminal decision of Anarita Karimi Njeru v Republic, where the Court held that a petitioner must clearly state: a) the constitutional provisions alleged to have been violated; b) the manner of violation; and c) the specific acts or omissions complained of. This principle was reaffirmed by the Court of Appeal in Mumo Matemu v Trusted Society of Human Rights Alliance, where the Court emphasized that constitutional litigation requires precision, clarity and factual specificity. In the present case, the Petitioner merely cites several constitutional provisions without demonstrating with precision how the Respondent violated those provisions. The Petition therefore falls short of the established constitutional pleading standard. Moreover, the Supreme Court has consistently cautioned against the unnecessary invocation of constitutional provisions where disputes can be resolved through ordinary statutory mechanisms. In Communications Commission of Kenya v Royal Media Services Ltd, the Supreme Court held that constitutional interpretation should only be invoked where it is necessary for the determination of the dispute. 15. Where legislation provides a sufficient legal framework to resolve a dispute, courts should rely on the statutory regime rather than constitutional litigation. Decision 31.The petition is hinged on allegation of discrimination on ground of pregnancy (Article 27(4) & (5)), violation of dignity (Article 28) and denial of fair labour practices (Article 41). Whereas the petitioner could still have filed a claim before the court, that did not limit her right to file the constitutional petition as she pleaded discrimination on account of pregnancy contrary to specific constitutional provisions. I find the petition meets the threshold in Anarita Karimi Njeru v Republic, where the Court held that a petitioner must clearly state: a) the constitutional provisions alleged to have been violated; b) the manner of violation; and c) the specific acts or omissions complained of. Whether the Respondent discriminated against and unlawfully terminated the Petitioner on account of her pregnancy; The petitioner’s submissions 32.Whether the Respondent discriminated against and unlawfully terminated the Petitioner on account of her pregnancy. The Petitioner's uncontroverted evidence, per her Supporting Affidavit exhibits, establishes that: -a.She was employed as a cashier by the Respondent from 25th May 2024, earning Kshs.27,726.17/- monthly (see the Supporting Affidavit at paragraph 2; and Exhibit marked NNM-1);b.In November 2024, the Respondent unilaterally reduced her salary to Kshs.22,000/- without consent, breaching Section 10(5) of the Employment Act, 2007(see the Supporting Affidavit, at paragraph 3): On 20th May 2025, her supervisor, Christine Nyaboke, photographed her pregnancy and demanded medical reports, targeting her and another pregnant colleague, Grace Njambi Mwangi, without lawful basis. medical report confirmed that she was 34 weeks pregnant at the time; (see the Supporting Affidavit, at paragraph 4; and Exhibit marked NNM-2); 33.On 22nd May 2025, the Respondent forced her to commence maternity leave at 34 weeks pregnant, issued a new contract with an amended maternity clause, and reassigned her roles, rendering her working conditions intolerable (see the Supporting Affidavit, at paragraph 7-9 and Exhibit marked NNM-3); and The Respondent's letter of 29th May to 2025 (Exhibit NNM-4) admits compelling premature leave and demanding her return, constituting an express admission of constructive dismissal. International Labour Organisation Convention Number 111 [1958] - Convention Concerning Discrimination in Respect of Employment and Occupation, has been domesticated in Kenya through the provisions of Articles 2(5) and (6) of Constitution which provides a window for the application of international law principles, treaties and conventions Kenya has ratified. Article 1 of Convention defines discrimination thus; "For the purpose of this Convention the term discrimination includes; Any sex, distinction, exclusion or preference made on the basis of race, colour, religion, political opinion, national extraction or social origin, which has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation" [Emphasis ours] The ILO Maternity Protection Convention Number 183 [2000] guarantees pregnant employees maternity leave, and the right to return to the same or equivalent job at the end of such leave. It further obliges the employer to prove that the dismissal of the employee is not related to pregnancy discrimination, when the employee has laid the basis to show that she suffered the adverse employment decision based on such discrimination. 34.There are several constitutional and statutory safeguards to protect pregnant employees and other vulnerable persons against discrimination on basis of pregnancy, health status or any other ground. Constitutional Safeguards and Violations by the Respondent. 35.Article 27 (4) & (5) of the Constitution of Kenya, 2010 provides that no person shall discriminate directly or indirectly against another person on any ground, including race, sex, pregnancy, marital status, health status, ethnic or socializing, colour, age, disability, religion, conscience, belief, culture, dress, language or birth. The Respondent by targeting the Petitioner for disciplinary summons, medical disclosures, and forcing her to proceed on premature maternity leave due to her pregnancy violated Article 27(4), which prohibits discrimination on grounds of pregnancy. 36.In Petition 62 of 2019: Yasmin Josephine Mokaya v Professor Kithure Kindiki t/a Kithure Kindiki & Associates [2021] eKLR at paragraphs 45-46 and 64, the court held that termination based on pregnancy violated Article 27(4) and Section 5(3) (a) of the Employment Act and emphasized that such discrimination was unconstitutional and unlawful. 37.Article 28 of the Constitution protects every person's right to inherent dignity and respect. The Respondent subjected the Petitioner to degrading treatment through the supervisor's photographing of her pregnancy and demanding her medical reports, actions that humiliated and demeaned her. She was further forced to proceed on early maternity leave without consent, undermining her autonomy and dignity as a pregnant employee. These actions stripped the Petitioner of her dignity, causing emotional distress and psychological harm in violation of Article 28. In G M V vs Bank of Africa Kenya Limited [2013] eKLR at paragraph 98, the court recognized that pregnancy discrimination undermines the fundamental right to dignity and family under Article 45 of the Constitution thus warrants redress. 38.Article 41(1) of the Constitution guarantees every person the right to labour practices. The Respondent breached this right by: fair a. Reducing the Petitioner's salary without consent, contrary to Section 10(5) of the Employment Act, 2007; Imposing pretextual disciplinary measures and forced maternity leave, violating fair administrative action under Article 47 of the Constitution; and Constructively dismissing the Petitioner due to pregnancy, breaching Section 46 of the Employment Act. In GMV supra at paragraph 86, the court rejected the notion that contractual notice clauses override statutory protections, emphasizing that fair labour practices under Article 41 of the Constitution require procedural and substantive fairness which are absent in this case. Statutory Safeguards and Violations by the Respondent 39.Section 5 (3) (a) of the Employment Act provides that no employer shall discriminate directly or indirectly against an employee or prospective employee or harass an employee or prospective employee on grounds of race, colour, sex, language, religion, political or other opinion, nationality, ethnic or social origin, disability, pregnancy, mental status or HIV status. The Respondent's pregnancy-based actions, including targeting the Petitioner for discipline and forcing early leave, constituted discrimination and prohibited dismissal. 40.Section 29 of the Employment Act guarantees a pregnant employee 90 days of maternity leave with full pay, at the employee's discretion. The Respondent's unilateral imposition of maternity leave from 22nd May 2025, as admitted in their letter of 29th May 2025, violated Section 29 of the Act, which grants the Petitioner autonomy. 41.Procedural Farness and Prohibited Dismissal. Section 46 of the Employment Act, 2007 prohibits dismissal or adverse action due to pregnancy while Section 45 of the Act requires fair procedure and substantive reason for termination which was absent in the Petitioner's constructive dismissal. The Respondent's actions created intolerable working conditions, forcing the Petitioner to leave, thus constituting constructive dismissal without fair procedure or substantive reason, as required under Section 45 of the Employment Act. 42.In GMV supra at paragraph 85, the court found that failure to provide warnings or a hearing, as required by the employer's own policies, rendered the termination procedurally unfair, a principle applicable here given the Respondent's lack of due process. The court further found that failure to follow disciplinary procedures, such as issuing warnings or convening a hearing, violated Section 41 of the Employment Act. The Respondent's coercive actions and lack of any disciplinary process before forcing the Petitioner on premature maternity leave rendered the constructive dismissal procedurally unfair. Burden of Proof. 26. Section 5 (7) of the Employment Act provides that: "(7) In any proceedings where a contravention of this section is alleged, the employer shall bear the burden of proving that the discrimination did not take place as alleged, and that the discriminatory act or omission is not based on any of the grounds specified in this section." 43.Section 47 (5) of the Employment Act further requires that:(5) For any complaint of unfair termination of employment or wrongful dismissal the burden of proving that an unfair termination of employment or wrongful dismissal has occurred shall rest on the employee, while the burden of justifying the grounds for the termination of employment or wrongful dismissal shall rest on the employer." 44.It is well settled that where an employee, who alleges discrimination as a ground for unfair termination of employment has discharged the evidential burden, the burden shifts to the employer to prove that there was no discrimination and that the act complained of is not based on any of the grounds specified by the statutes and is therefore justified in terms of the law and the Constitution. 45.We are guided by the Industrial Court's decision in GM V supra wherein Rika analyzed the issue of evidential burden in cases of discrimination on account of pregnancy as follows: "68. The Court must make it clear that there is absolutely no requirement for ladies who claim to have been discriminated against by their employers on the ground of pregnancy, to strictly prove that they were indeed, discriminated against on such ground. The starting point is Section 5(6) of the Employment Act 2007, which states: "In any proceedings where a contravention of Section 5 (3) is alleged, the employer shall bear the burden of proving that the discrimination did not take place as alleged, and the discriminatory act or omission is not based on any grounds specified in this Section." This law places the burden of proof on the employer, not the employee. This position has adequate support in Section 43 of the Act, which requires the employer to prove the reason for termination. Section 5(3) states that no employer shall discriminate directly, or indirectly, against an employee, or prospective employee, on the ground of pregnancy, among other grounds. 46.All the ladies are required to do, is establish a prima facie case, through direct evidence or statistical proof, that they have been discriminated against at employment, on account of their pregnancies. Courts have stated that the employee needs to:-Establish she belongs to a protected class; Demonstrate she qualified for the job she lost: Show she suffered adverse employment action, directly as a result her pregnancy. of She must provide prima facie proof, that other explanations by the employer are pretextual, and the real reason for termination was the pregnancy; Lastly, the employee must as a minimum, establish that there is a nexus between the adverse employment decision, and her pregnancy. 47.Once the employee has established a prima facie case, the burden shifts to the employer, to show a legitimate explanation for termination. Where the employee has demonstrated a prima facie case, a presumption that the employer discriminated against the employee is raised. The employer must then articulate clear, specific, and non-discriminatory reason for termination. The employee's duty is to provide evidence, which would permit the Court fo conclude the explanation proffered by the employer, is pretextual. Pretext can be established by showing that the asserted neutral basis for termination was so ridden with error, that the employer would not honestly have relied on it. The obligation of the employee is not to establish that she has been discriminated against, on strict proof, as demanded by the Respondent in this case; the employee needs only to show that she has a prima facie case, and that the reasons advanced by the Respondent, are unworthy of credence. Under our law, specifically Section 5(6) of the Employment Act 2007, the burden rests on the shoulders of the Respondent, to show that discrimination did not take place." [Emphasis ours] 48.In this case the Petitioner was 34 weeks pregnant when she was forced to proceed on maternity leave as confirmed by the medical report, a fact not disputed by the Respondent. The Petitioner therefore belonged to a protected class of people under the law [pregnant employees], and she also qualified for the job she lost. This termination adversely affected her since she lost the job when she needed it most. Once the Petitioner proved her prima facie case the burden shifted to the Respondent to show a legitimate explanation for the termination. The Respondent ought to have proved or shown that the Petitioner was dismissed due to a valid reason and not her pregnancy. The Respondent miserably failed in this regard. We are thus led to the inescapable conclusion that the Respondent dismissed the Petitioner on account of her pregnancy and therefore discriminated against her. Furthermore, the Respondent's letter dated 29th May 2025, requiring the Petitioner to return to work and expressly admitting the premature imposition of maternity leave, constituted an admission of constructive dismissal on account of pregnancy. This action unlawfully altered the Petitioner's employment terms, breaching her contract and anti-discrimination protection provisions under the Constitution and the Employment Act. Besides, the Respondent's failure to file a response leaves these claims uncontroverted, reinforcing the presumption of discrimination, as held in G M V supra at paragraph 84, where the court inferred discrimination from the employer's pretextual justifications and lack of credible evidence. Respondent’s submissions 49.Whether the petitioner has established discrimination - The Petitioner alleges discrimination on account of pregnancy in violation of Article 27 of the Constitution and Section 5 of the Employment Act. The Respondent submits that these allegations are unsupported by evidence and therefore unsustainable. Article 27 of the Constitution guarantees equality and freedom from discrimination, while Section 5 of the Employment Act prohibits discrimination in employment on various grounds including pregnancy. However, the burden of proving discrimination lies with the party alleging it. The legal elements required to establish discrimination include: a) proof of differential treatment; b) identification of a prohibited ground for such treatment; and c) evidence that the differential treatment caused prejudice. In GMV v Bank of Africa Kenya Limited, the Court held that allegations of discrimination must be supported by clear and credible evidence demonstrating unequal treatment. Mere assertions or suspicions of discrimination are insufficient. In the present case, the Petitioner has not demonstrated that: a) she was treated differently from other employees; b) the alleged treatment was linked to pregnancy; or c) the Respondent maintained any discriminatory policy or practice. The Petitioner’s allegations are therefore speculative and unsupported by factual evidence. Courts have consistently held that discrimination must be proven through tangible and objective evidence. In the absence of such evidence, the claim of discrimination cannot stand. Decision 50.The petitioner alleged her right not to be discriminated against on account of pregnancy was violated in contravention of the provisions of articles 27,28 and 41 of the Constitution. It was not in dispute that the petitioner was in the employment of the respondent. Both parties produced the contact of employment dated 13th May 2025. The petitioner signed the contract on the 13th May 2025. The contract indicated it was for the period 1st June 2025 to 30th November 2025 as a line attendant. 51.The petitioner stated that the employer issued her with a new contract on the 24th May 2025, which amended the maternity clause, but before the court was only the contract she signed on the 13th May 2025. The court finds that the only evidence of contract terms was the contract dated 13th May 2025 produced by both parties. The petitioner alleged to have been subjected to pregnancy tests by the employer and asked to take early maternity leave effective 22nd may 2025 at 34 weeks pregnancy. In support of the allegation the petitioner produced as NNM2 the obstetric scan from Avenue Heath care dated 20th may 2025 and a letter dated 29th May 2025 by the employer to her which read as follows- ‘Subject: Return to Work Notification.I hope this letter finds you well. We are writing to address an administrative error that occurred regarding your recent placement on maternity leave.Upon review, it has come to our attention that you were sent home and placed on maternity leave earlier than your eligible start date. We sincerely apologize for this oversight and any inconvenience it may have caused you.In light of this, we kindly request that you return to work, effective 30th May 2025, to continue your regular duties until your maternity leave is due to officially begin. We are happy to work with you to ensure a smooth transition and to accommodate any needs you may have during this period.If you have any medical updates or documentation that should be considered in relation to your return or the timing of your leave, please feel free to share them with us at your earliest convenience.Thank you for your understanding and cooperation. Should you have any questions or concerns, please do not hesitate to contact Christine directly on 0713350480.’ 52.The employer vide affidavit of Christine Nyaboke dated 2nd March 2026, averred as follows: ' 7. Clause 8 of the employment provided that the Petitioner was entitled to a fully paid maternity leave in the event the employee was pregnant.8.The Respondent was unaware that the Petitioner was pregnant nor the Petitioner did not notify the Respondent in any way of this position until on or about May, 2025 when she deserted her duties without leave. The company through myself sent out messages and calls to the Petitioner to return to work until when the Petitioner deems fit to proceed for maternity leave. The communication went unanswered and the Petitioner never reported back to work. (herewith annexed is a copy of the WhatsApp message marked CN3).9.That the Petitioner has not brought forth any form of evidence to prove that she was dismissed from employment nor provided any witnesses to corroborate the fact that she was dismissed from employment on 21 May, 2025.’ 53.The court found no denial of the said medical tests of pregnancy. The court finds that the respondent vide letter dated 29th May 2025 admitted to having erroneously placed the petitioner on forced maternity leave. I find the admission supports the claim for discrimination. The right to maternity leave is provided for under the Employment Act under section 29 as follows-‘29. Maternity leave(1)A female employee shall be entitled to three months maternity leave with full pay.(2)On expiry of a female employee's maternity leave as provided in subsections (1) and (3), the female employee shall have the right to return to the job which she held immediately prior to her maternity leave or to a reasonably suitable job on terms and conditions not less favourable than those which would have applied had she not been on maternity leave.(3)Where—(a)the maternity leave has been extended with the consent of employer; or(b)immediately on expiry of maternity leave before resuming her duties a female employee proceeds on sick leave or with the consent of the employer on annual leave; compassionate leave; or any other leave, the three months maternity leave under subsection (1) shall be deemed to expire on the last day of such extended leave.(4)A female employee shall only be entitled to the rights mentioned in subsections (1), (2) and (3) if she gives not less than seven days notice in advance or a shorter period as may be reasonable in the circumstances of her intention to proceed on maternity leave on a specific date and to return to work thereafter.(5)The notice referred to in subsection (4) shall be in writing.(6)A female employee who seeks to exercise any of the rights mentioned in this section shall, if required by the employer, produce a certificate as to her medical condition from a qualified medical practitioner or midwife.(7)No female employee shall forfeit her annual leave entitlement under section 28 on account of having taken her maternity leave.’ 54.The court finds that it is the employee who has to issue notice to proceed on maternity leave. The employer cannot force an employee to commence maternity leave as doing so amounts to removal of the employee from the shop floor involuntary and this being on basis of pregnancy would amount to discrimination. Article 27 of the constitution provides as follows- ‘27. Equality and freedom from discrimination.(1)Every person is equal before the law and has the right to equal protection and equal benefit of the law.(2)Equality includes the full and equal enjoyment of all rights and fundamental freedoms.(3)Women and men have the right to equal treatment, including the right to equal opportunities in political, economic, cultural and social spheres.(4)The State shall not discriminate directly or indirectly against any person on any ground, including race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth.(5)A person shall not discriminate directly or indirectly against another person on any of the grounds specified or contemplated in clause (4).’’ The respondent, being a private company, falls under Article 27(4) and is bound not to discriminate against employees on the grounds of pregnancy. The act of removal of the petitioner from the shop floor and placing her on forced maternity leave the respondent violated her right not to be discriminated against on account of pregnancy. It is so held. Whether the Petitioner was constructively dismissed by the Respondent; The petitioner's submissions 55.The Petitioner was constructively dismissed by the Respondent on 22nd May 2025. This is evident from the Respondent's letter of 29th May 2025 wherein the Respondent expressly admitted to compelling the Petitioner to proceed on premature leave and demanded her return. The Respondent forced her to commence maternity leave at 34 weeks pregnant, issued a new contract with an amended maternity clause, and reassigned her roles, rendering her working conditions intolerable. The term constructive dismissal is defined by the Black's Law Dictionary Edition) as follows: (10th "An employer's creation of working conditions that leave a particular employee or group of employees little or no choice but to resign, as by fundamentally changing the working conditions or terms of employment; an employer's course of action that, being detrimental to an employee, leaves the employee almost no option but to quit. "[Emphasis ours] 56.To determine whether an employee has been constructively dismissed the Court Appeal in Coca Cola East & Central Africa Limited v Maria Kagai Ligaga [2015] eKLR set out the following guiding principles: What are the fundamental or essential terms of the contract of employment? Is there a repudiatory breach of the fundamental terms of the contract through conduct of the employer? The conduct of the employer must be a fundamental or significant breach going to the root of the contract of employment or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract. An objective test is to be applied in evaluating the employer's conduct. There must be a causal link between the employer's conduct and the reason for the employee terminating the contract, i.e. causation must be proved. An employee may leave with or without notice so long as the employer's conduct is the effective reason for termination. . The employee must not have accepted, waived, acquiesced or conducted himself to be estopped from asserting the repudiatory breach; the employee must within a reasonable time terminate the employment relationship pursuant to the breach. h. The burden to prove repudiatory breach or constructive dismissal is on the employee." I am running a few minutes late; my previous meeting is running over. Facts giving rise to repudiatory breach or constructive dismissal are varied.’ 57.The Respondent's actions, including forcing the Petitioner to proceed on premature maternity leave at only 34 weeks pregnant, as admitted in their letter dated 29th May 2025, unilateral salary reduction, coercive medical disclosures, and pretextual disciplinary measures, breached her constitutional and statutory rights, rendering her working conditions intolerable. There was a causal link between the Respondent's conduct and the reason for the Petitioner terminating the contract. Respondent’s submissions 58.Conversely, the respondent submitted as follows- The Petitioner further alleges that she was constructively dismissed. The Respondent submits that the Petitioner has failed to establish the legal elements required to sustain such a claim. The law governing constructive dismissal was clearly articulated by the Court of Appeal in Coca Cola East & Central Africa Limited v Maria Kagai Ligaga. In that case, the Court held that constructive dismissal arises where: a) the employer commits a fundamental breach of the employment contract; b) the breach goes to the root of the contract; c) the employee resigns as a direct consequence of that breach. The Court further emphasized that the breach must be serious, fundamental and repudiatory. The Petitioner has not demonstrated any conduct by the Respondent that amounts to a fundamental breach of the employment contract. The Petition does not identify any contractual obligation that the Respondent allegedly breached. Nor has the Petitioner demonstrated that the working environment became intolerable due to the Respondent’s conduct. In the absence of such proof, the allegation of constructive dismissal is legally untenable. Decision 59.The parties are agreeable on the applicable case authority on the issue of constructive dismissal being Coca Cola East & Central Africa Limited v Maria Kagai Ligaga [2015] eKLR which set out the following guiding principles:a.What are the fundamental or essential terms of the contract of employment?b.Is there a repudiatory breach of the fundamental terms of the contract through conduct of the employer?c.The conduct of the employer must be a fundamental or significant breach going to the root of the contract of employment or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract.d.An objective test is to be applied in evaluating the employer's conduct. 9e.There must be a causal link between the employer's conduct and the reason for employee terminating the contract i.e. causation must be proved.f.An employee may leave with or without notice so long as the employer's conduct is the effective reason for termination.g.The employee must not have accepted, waived, acquiesced or conducted himself to be estopped from asserting the repudiatory breach; the employee must within a reasonable time terminate the employment relationship pursuant to the breach.h.The burden to prove repudiatory breach or constructive dismissal is on the employee."i.Facts giving rise to repudiatory breach or constructive dismissal are varied.’ 60.The court having held the act of involuntary medical tests and involuntary placement on maternity leave amounted to discrimination, that finding is tantamount to a finding of repudiation of the term of the contract of right to maternity leave as per statute. The court found evidence of the petitioner having been a cashier as of December 2024, then a line attendant in January 2025. The respondent placed before the court evidence of the salary payments to the petitioner, which supported her assertion that she was earlier ben engaged as a cashier and then moved to line attendant with a lower salary. There was no evidence of co-relations between the change of salary and the pregnancy. The reduction of salary amounts to a negative term in the employee contract. Section 10(5) of the Employment Act requires the concurrence of the employee on a change of contract terms, and a contract can either be oral or written. It reads- ‘Where any matter stipulated in subsection (1) changes, the employer shall, in consultation with the employee, revise the contract to reflect the change and notify the employee of the change in writing.’ There apparent violation of the law in change of the terms of contract of the petitioner from cashier to line attendant with less salary . The petitioner proved constructive dismissal. Whether the Petitioner is entitled to the reliefs sought, including terminal dues, damages, and costs. 61.The Petitioner submitted as follows- the mode of assessment of remedies for unlawful and unfair termination was set out by the Court of Appeal in Co-operative Bank of Kenya Ltd v Banking Insurance & Finance Union CA No. 188 of 2014 as follows: "Our understanding of the Act is that the prescribed remedies...are discretionary rather than mandatory remedies, to be granted on the basis of the peculiar facts of each case. This is made absolutely clear by the use one word "may", which in the context of the provision imports a discretionary rather than a mandatory meaning. That the remedies are not a mandatory remedies, is made even clearer by section 49(4) which sets out some 13 considerations which the count must take into account before determining what remedy is appropriate in each case. Those considerations include the wishes of the employee, the circumstances of the termination and the extent to which the employee caused or contributed to it, the practicability of reinstatement or re- engagement, the common law principle that an order for specific performance of a contract for service should not be made save in exceptional cases, the employee's length of service with the employer, the employee's reasonable expectation of the length of time the employment was to last but for the termination, the employee's opportunities for securing comparable or suitable employment, any conduct of the employee that may have caused or contributed to the termination, any action on the part of the employee to mitigate his loses, etc. What all the above means, is that before exercising the discretion to determine which remedy to award, the court must be guided by the above comprehensive list of considerations." The remedies for wrongful dismissal and unfair termination are provided for in section 49 as read with section 50 of the Employment Act. Among them is an award of the equivalent of a number of month's wages or salary not exceeding twelve months based on the gross monthly wage or salary of the employee at the time of dismissal. Section 49(4) (a) to (m) sets out 14 considerations which should be taken into account in deciding the appropriate remedy under 49(1) of the Act. Terminal Dues -The Petitioner claims Kshs.875,989.83/- as particularized in paragraph 26(c) of the Petition, comprising: One month's salary in lieu of notice, May 2025 salary, Compensation for unfair termination, Underpayment, Unpaid leave and unremitted NSSF deductions. These calculations, based on the Regulation of Wages (General) (Amendment) Order, 2024, are uncontroverted and align with Section 49(1)(c) of the Employment Act. In G M V supra at paragraph 99, the court upheld similar terminal dues, including notice pay and outstanding leave. The award of damages is an exercise of judicial discretion, and it is trite law that an appellate court will not disturb an award of damages the word "may", which in the context of the provision imports a discretionary rather than a mandatory meaning. That the remedies....are not a mandatory remedies, is made even clearer by section 49(4) which sets out some 13 considerations which the count must take into account before determining what remedy is appropriate in each case. Those considerations include the wishes of the employee, the circumstances of the termination and the extent to which the employee caused or contributed to it, the practicability of reinstatement or re- engagement, the common law principle that an order for specific performance of a contract for service should not be made save in exceptional cases, the employee's length of service with the employer, the employee's reasonable expectation of the length of time the employment was to last but for the termination, the employee's opportunities for securing comparable or suitable employment, any conduct of the employee that may have caused or contributed to the termination, any action on the part of the employee to mitigate his loses, etc. What all the above means, is that before exercising the discretion to determine which remedy to award, the court must be guided by the above comprehensive list of considerations." The remedies for wrongful dismissal and unfair termination are provided for in section 49 as read with section 50 of the Employment Act. Among them is an award of the equivalent of a number of month's wages or salary not exceeding twelve months based on the gross monthly wage or salary of the employee at the time of dismissal. Section 49(4) (a) to (m) sets out 14 considerations which should be taken into account in deciding the appropriate remedy under 49(1) of the Act. Terminal Dues -The Petitioner claims Kshs.875,989.83/- as particularized in paragraph 26(c) of the Petition, comprising: One month's salary in lieu of notice, May 2025 salary, Compensation for unfair termination, Underpayment, Unpaid leave and unremitted NSSF deductions. These calculations, based on the Regulation of Wages (General) (Amendment) Order, 2024, are uncontroverted and align with Section 49(1)(c) of the Employment Act. In G M V supra at paragraph 99, the court upheld similar terminal dues, including notice pay and outstanding leave. On compensation for discrimination against the Petitioner on grounds of pregnancy contrary to Article 27(5) of the Constitution and section 5(3) of the Employment Act we humbly submit that the court should award the Petitioner general and exemplary damages of Kshs.1,500,000/. The Respondent's egregious conduct, including targeting pregnant employees and admitting liability, warrants exemplary damages to deter future violations. The Respondent's failure to respond further underscores the need for deterrence. For this proposition we place reliance on the awards made for similar transgressions in GMV supra where the Court awarded Kshs.3,000,000/-; Peris Nyambura v Dalbit Petroleum Limited (2015) eKLR where the Court awarded Kshs.3,600,000/-; V MKvCUEA [2013] eKLR where the Court awarded Kshs.5,000,000/- and Petition 62 of 2019 where the Court awarded Kshs.1,500,000/-. Certificate of Service- the Petitioner is entitled to a Certificate of Service under Section 51 of the Employment Act, 2007, to facilitate future employment. 62.Conversely the respondent submitted as follows- The Petitioner seeks several constitutional declarations and damages. Constitutional remedies are discretionary and may only be granted where a constitutional violation has been established. In the present case, the Petitioner has failed to demonstrate any violation of constitutional rights. Consequently, the remedies sought are unavailable. Decision on remedies 63.The petitioner sought for the following reliefs-a.A Declaration that the Respondent's actions, including unilateral salary reduction, pretextual disciplinary summons, coerced medical disclosure, and forced early maternity leave, violated the Petitioner's rights under Articles 27, 28, and 41 of the Constitution of Kenya, 2010.b.A Declaration that the Respondent's conduct constituted constructive dismissal under the Employment Act, 2007.c.An Order directing the Respondent to pay the Petitioner terminal dues (based on monthly salary for a cashier as per the Regulation of Wages (General) (Amendment)2024 (Legal Notice No. 164), plus house allowance) including:i.One month's salary in lieu of notice Kshs.41,815.06/-ii.May 2025 Salary Kshs.41,815.06/-iii.Compensation for unfair termination equivalent to12 months' gross salary, pursuant to Section 49(1)(c)of the Employment Act,2007 Kshs.501,780.70/-iv.Underpayment(Nov 2024 to 31st May 2025) Kshs. 138,705.41/-(May to October 2024) Kshs.70,331.90/-v.Unpaid Leave Kshs.33,773.70 /-v.Unremitted NSSF deductions October 2023 to May 2025 Kshs. 47,768/-Total. Kshs.875,989.83/-d.An Order for general damages to compensate the Petitioner for the violation of her constitutional rights under Articles 27, 28, and 41, including discrimination, degrading treatment, and unfair labour practices.e.An Order for exemplary damages to deter the Respondent from similar unconstitutional conduct in the future.f.An Order directing the Respondent to issue the Petitioner with a Certificate of Service as required under Section 51 of the Employment Act, 2007.g.Costs of this Petition, together with interest at court rates from the date of judgment until payment in full.h.Interest on c, d and e above at court rates from the date of judgment until payment in full.i.Any other or further relief that this Honourable Court deems just and equitable to grant. 64.The court taking into account its decision above makes the following declarations.a.A Declaration that the Respondent's actions, including unilateral salary reduction, pretextual disciplinary summons, coerced medical disclosure, and forced early maternity leave, violated the Petitioner's rights under Articles 27, 28, and 41 of the Constitution of Kenya, 2010.b.A Declaration that the Respondent's conduct constituted constructive dismissal under the Employment Act, 2007. 65.On the terminal dues-The petitioner produced her contract which indicated she was a line manager. It was a fixed contract. That was her contract at time of termination. It was not alleged that she was coerced to sign the contract. Fixed contracts speak for themselves. The petitioner did not produce previous contracts for the court to compare the terms. He who alleges proves. The court can only award as per contract unless evidence of contrary is proved. The evidence was that the petitioner had been a line manager since January 2025 and worked as such and thus cannot only be remunerated as a line attendant and not cashier. The court will award damages for discrimination separately. 66.On compensation for discrimination- the petitioner submitted as follows- the general and exemplary damages as prayed for are reasonable in the circumstances of this case considering the numerous constitutional rights violations and fair labour practices breaches that the Respondent committed in terminating the Petitioner's employment. On compensation for discrimination against the Petitioner on grounds of pregnancy contrary to Article 27(5) of the Constitution and section 5(3) of the Employment Act she submitted that the court should award the Petitioner general and exemplary damages of Kshs.1,500,000/. The Respondent's egregious conduct, including targeting pregnant employees and admitting liability, warrants exemplary damages to deter future violations. The Respondent's failure to respond further underscores the need for deterrence. For this proposition we place reliance on the awards made for similar transgressions in GMV supra where the Court awarded Kshs.3,000,000/-; Peris Nyambura v Dalbit Petroleum Limited (2015) eKLR where the Court awarded Kshs.3,600,000/-; V MKvCUEA [2013] eKLR where the Court awarded Kshs.5,000,000/- and Petition 62 of 2019 where the Court awarded Kshs.1,500,000/-. 67.The court finds that compensation is a remedy under Article 23 of the Constitution –‘(3)In any proceedings brought under Article 22, a court may grant appropriate relief, including—(a)a declaration of rights;(b)an injunction;(c)a conservatory order;(d)a declaration of invalidity of any law that denies, violates, infringes, or threatens a right or fundamental freedom in the Bill of Rights and is not justified under Article 24;(e)an order for compensation; and(f)an order of judicial review. ‘The court found violation of the right to non-discrimination on account of pregnancy. The court found that the respondent had tried to salvage the violation vide letter of 29th may 2025 on own accord on admitting the violation. The petitioner was not under obligation to accept the recall and taking into account the violation had already occurred and was enhanced by the intrusive medical tests not denied by the respondent. I am persuaded compensation award of Kshs. 1,200,000 is adequate taking into account cited case law and the ask for Kshs. 1,500,000 by the petitioner. Terminal dues 68.On finding constructive dismissal, the court further awards notice pay of Kshs. 23,777.12 as per last payroll . 5 months compensation taking into account the period of service and the high probability of the petitioner getting similar or high job in the market on account of age and nature of the job Kshs, 118,885.60. There was no prove of remittance of the May 2025 salary and the same is awarded Kshs. 23,777.22. 69.On the issue of underpayment the same is awarded for the period when the petitioner worked as a cashier thus (May to October 2024) Kshs.70,331.90/-Unpaid Leave Kshs.33,773.70 /- This was undisputed and is allowed as prayed. 70.On claim of Unremitted NSSF deductions October 2023 to May 2025 Kshs. 47,768/--I hold that there statement produced by the petitioner had remittances for period worked andin case of any dispute the same lies with the NSSF board.Total terminal dues awarded Kshs. 270,545.44/= 71.On the exemplary damages. the court finds it has no power to make the award under section 12 of the Employment and Labour Relations Act. 72.Total judgment sum Kshs. 1,470,545.44 payable with interest at court rate from the date of judgment. 73.The petitioner is awarded costs of the petition. 74.The respondent to issue the petitioner with Certificate of service to issue under section 51 of the Employment Act. 75.It is so ordered DATED, SIGNED, AND DELIVERED IN OPEN COURT AT NAIROBI THIS 19TH DAY OF JUNE, 2026.JEMIMAH KELI,JUDGE.In The Presence Of:Court Assistant: OtienoPetitioner: MudaoRespondent: Absent