Nyakundi v Marfa Construction Company Ltd (Constitutional Petition E006 of 2025) [2026] KEELRC 1564 (KLR) (4 June 2026) (Judgment)

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT MERU** **CONSTITUTIONAL PETITION NO. E006 OF 2025** **IN THE MATTER OF: ARTICLES 2, 10,19,20,22,23,27,28,41,43 AND 47 OF THE CONSTITUTION OF KENYA, 2010.** **AND** **IN THE MATTER OF THE ALLEGED CONTRAVENTION AND VIOLATION OF FUNDAMENTAL RIGHTS AND FREEDOMS UNDER THE CONSTITUTION OF KENYA 2010.** **AND** **IN THE MATTER OF SECTIONS 5,9,10,35,41,43,45,49 AND 51 OF THE EMPLOYMENT ACT, 2007.** **AND** **IN THE MATTER OF THE EMPLOYMENT ACT AND LABOUR RELATIONS COURT ACT, 2011.** **BETWEEN** **RUTH MORAA NYAKUNDI…………....………………………….…...PETITIONER** **VERSUS** **MARFA CONSTRUCTION COMPANY LIMITED…………………RESPONDENT** **JUDGMENT** 1. The Petitioner avers that she was employed by the Respondent on 17th August 2020 as a leveler in the construction of the Keria–Kathwana Road project, earning a gross monthly salary of Kshs. 50,984/=, subject to statutory deductions. She further avers that a house allowance of Kshs. 15,000/= was paid separately through the Resident Engineer, ***Reymond Marete.*** 2. The Petitioner further states that she served the Respondent diligently until March 2024, when the Respondent granted employees a break during the Ramadhan period. She contends that although the other employees were subsequently recalled to work, she was excluded from the recall and thereby unlawfully terminated from employment. 3. The Petitioner further alleges that the employees who were recalled were relatives and neighbours of the Resident Engineer and the Assistant Resident Engineer, and that her exclusion amounted to discrimination on the basis of ethnicity and social origin. 4. The Petitioner further contends that, despite deductions being made from her salary in respect of the National Hospital Insurance Fund (NHIF) and the National Social Security Fund (NSSF) contributions, the Respondent failed to remit the said deductions to the relevant statutory bodies, thereby depriving her of the attendant social security benefits. 5. It is the Petitioner’s further contention that her employment was terminated without being accorded a hearing and without payment of salary in lieu of notice. 6. It is against this background that the Petitioner seeks the reliefs set out in the Petition: 7. ***A declaration that the Petitioner's termination from employment was unlawful, unprocedural, and in breach of her fundamental rights and freedoms;*** 8. ***A declaration that the Respondent's conduct towards the Petitioner amounted to discrimination in employment;*** 9. ***An award of one (1) month's salary in lieu of notice in the sum of Kenya Shillings Fifty Thousand Nine Hundred and Eighty-Four (Kshs. 50,984/=);*** 10. ***An award for unpaid housing allowance arrears in the sum of Kenya Shillings Four Hundred and Sixty-Five Thousand (Kshs. 465,000/=);*** 11. ***An award for unremitted statutory deductions, being NSSF and NHIF contributions, in the sum of Kenya Shillings Seventy-Two Thousand Five Hundred and Forty (Kshs. 72,540/=);*** 12. ***Compensation for unfair and unlawful termination of employment equivalent to twelve (12) months' gross salary, being Kenya Shillings Six Hundred and Eleven Thousand Eight Hundred and Eight (Kshs. 611,808/=);*** 13. ***General damages for the indignity, psychological harm, and distress caused by discriminatory treatment and breach of constitutional and labour rights;*** 14. ***An order directing the Respondent to issue the Petitioner with a Certificate of Service forthwith upon delivery of judgment;*** 15. ***Costs of this suit and interest thereon at court rates from the date of filing until payment in full;*** 16. ***Any other relief or remedy that this Honourable Court shall deem just, equitable, and expedient in the circumstances of this case.*** 17. The Respondent did not file any response to oppose the Petition despite being served. In proof of service, the Petitioner relied on the Affidavits of Service sworn by Susan Nyakundi on 2nd February 2026 and 3rd March 2026, wherein she deposes that she duly served the Petition and the accompanying summons upon the Respondent both physically and through electronic means. **Submissions** 1. The Petition was disposed of by way of written submissions. On behalf of the Petitioner, it was submitted that the termination of her employment was both substantively and procedurally unfair. In support of this position, reliance was placed on the decisions in ***Kenfreight (E.A.) Ltd v Benson K. Nguti (2016) eKLR and Walter Ogal Anuro v Teachers Service Commission (2013) eKLR.*** 2. It was further submitted that the Respondent's decision to recall to work the relatives and associates of the Resident Engineer while excluding the Petitioner amounted to differential treatment which lacked any objective justification and therefore constituted unlawful discrimination. To support this position, reliance was placed on the case of ***GMV v Bank of Africa Kenya Limited (2013) eKLR.*** 3. The Petitioner further submitted that the Respondent violated her right to fair labour practices under Article 41 of the Constitution by unlawfully terminating her employment, failing to remit statutory deductions, and failing to pay her house allowance. 4. It was further contended that the Petitioner was subjected to degrading treatment through her exclusion from workplace communication, the withholding of her lawful benefits, and the abrupt termination of her employment without any explanation. According to the Petitioner, such conduct infringed her right to human dignity as guaranteed under Article 28 of the Constitution. **Analysis and Determination** 1. Arising from the pleadings, evidence, and submissions on record, the following issues fall for determination: 2. ***Whether the termination of the Petitioner's employment was unfair and unlawful;*** 3. ***Whether the Respondent violated the Petitioner's constitutional rights; and*** 4. ***Whether the Petitioner is entitled to the reliefs sought in the Petition.*** **Unfair and unlawful termination of employment?** 1. The Petitioner contends that her employment was unlawfully terminated when the Respondent failed to recall her to work following the Ramadhan break in March 2024. 2. Pursuant to **Section 43(1) of the Employment Act,** an employer is required to prove the reasons for the termination of an employee’s contract of employment. In addition to this, **Section 45(2)** provides that a termination of employment is unfair where the employer fails to prove that the reason for the termination was valid and fair, and related to the employee’s conduct, capacity, compatibility, or based on the employer’s operational requirements, and that the termination was carried out in accordance with a fair procedure. 3. In essence, the law requires an employer to establish both substantive and procedural fairness. Substantive fairness concerns the justification for the termination, whereas procedural fairness relates to the process applied in effecting the termination. 4. In the present case, the record does not contain a letter of termination. Consequently, the reasons informing the termination of the Petitioner’s employment remain undisclosed. This position is further exacerbated by the Respondent’s failure to file a response to the Petition or otherwise participate in these proceedings. 5. In the absence of any explanation from the Respondent regarding the termination, the Court is unable to assess the reasons against the standards prescribed under **Section 45(2)(a) and (b) of the Employment Act** so as to determine whether they were valid, fair, and related to the Petitioner’s conduct, capacity, compatibility, or the Respondent’s operational requirements. 6. It therefore follows that the Respondent failed to discharge the evidential burden imposed upon it under **Sections 43(1) and 45(2)(a) and (b) of the Employment Act.** Accordingly, the Court finds that the termination of the Petitioner’s employment was substantively unfair. 7. As regards procedural fairness, **Section 45(2)(c) of the Employment Act** obligates an employer to demonstrate that the termination was effected in accordance with a fair procedure. 8. The requirements of a fair procedure are set out **under Section 41 of the Employment Act,** which requires an employer to inform the employee of the grounds upon which termination is contemplated and to afford the employee an opportunity to render his or her explanation in the presence of a fellow employee of her choice or a union representative. 9. Owing to the Respondent’s failure to defend the Petition or participate in these proceedings, there is no evidence before the Court to suggest that the Respondent complied with the procedural safeguards stipulated under Section 41 of the Employment Act prior to terminating the Petitioner’s employment. 10. Consequently, the Court is persuaded that the termination of the Petitioner’s employment was procedurally unfair and therefore unlawful. 11. In the final analysis, the Court finds that the termination of the Petitioner’s employment was unfair and unlawful for want of compliance with the provisions of **Sections 41, 43, and 45 of the Employment Act.** **Constitutional violation?** 1. The Petitioner further alleges that the Respondent discriminated against her on the grounds of ethnicity and social origin. In particular, she contends that following the Ramadhan break in March 2024, the Respondent recalled all employees to work except her. She asserts that the employees who were recalled were relatives and neighbours of the Resident Engineer and the Assistant Resident Engineer. 2. According to **Black’s Law Dictionary (10th Edition),** **“discrimination”** is defined as follows: ***“Differential treatment; a failure to treat all persons equally when no reasonable distinction can be found between those favoured and those not favoured.”*** 3. As was held by the Court of Appeal in the case of **Barclays Bank of Kenya LTD & Another VS Gladys Muthoni & 20 Others [2018] eKLR,**arbitrary discrimination in the workplace is outlawed at the highest level of the Constitution and has always been. Therefore, a claim of discrimination is a serious claim that must be supported by evidence. 4. It is notable that in the present case, the Petitioner neither pleaded nor demonstrated that the employees who were recalled to work were similarly situated to her, particularly in terms of holding comparable positions as levelers. 5. Further, the Petitioner did not specify any of the employees who were allegedly recalled, nor did she demonstrate that they shared the same ethnic background or social origin as the Resident Engineer or the Assistant Resident Engineer, or that they were treated more favourably on that basis. 6. Whereas **Section 5(7) of the Employment Act** places the burden on an employer to prove that discrimination did not take place as alleged and that the discriminatory act is not based on any of the grounds specified within that section, it should be appreciated that the initial evidential burden lies on the employee to lay a factual basis establishing a *prima facie* case of discrimination, before the burden can shift. 7. Therefore, the Respondent’s failure to participate in these proceedings does not, by itself, amount to proof of discrimination. The Petitioner was still required to demonstrate, on a *prima facie* basis, that discrimination occurred. 8. To this end, the Court finds that the Petitioner failed to establish that she was treated less favourably than other employees who were similarly situated to her. **Reliefs?** 1. Having found that the Petitioner’s termination from employment was substantively and procedurally unfair, the Court awards her one (1) month’s salary in lieu of notice and compensation equivalent to five (5) months of her gross monthly salary. This award has been informed by the length of the employment relationship and the circumstances surrounding the termination of the Petitioner’s employment. 2. The Petitioner further contends that her monthly house allowance of Kshs 15,000/= was paid through the Resident Engineer, Reymond Marete, who allegedly failed to consistently remit the said amount. She asserts that at the time of termination, she had outstanding salary arrears amounting to Kshs 465,000/=. In support of this claim, the Petitioner produced bank statements reflecting certain cash deposits from Mr. Marete. 3. Since the claim for house allowance constitutes a specific claim, the Petitioner was required to specifically plead and particularise the same with clarity, including the specific months and years in respect of which payment was allegedly not made. 4. On the basis of the material placed before the Court, it is not possible to ascertain with precision the amount, if any, owed to the Petitioner as house allowance. For this reason, the claim for house allowance fails. 5. The Petitioner further seeks payment of unremitted NHIF and NSSF deductions allegedly withheld from her salary between August 2020 and March 2024. In this regard, she produced NSSF statements covering the period from January 2017 to December 2022. The said statements indicate that in some instances remittances of Kshs 2,160/= were made, which exceeds the sum of Kshs 1,080/=, which the Petitioner asserts was the applicable monthly contribution. 6. It was therefore incumbent upon the Petitioner to provide a clear breakdown of the specific months in which remittances were allegedly not made. Further, no statement was produced covering the period from 1st January 2023 to March 2024 to substantiate the allegation of non-remittance during that period. 7. As such, the Petitioner’s claim in this regard is unsupported by evidence. 8. In any event, NSSF contributions, being statutory deductions, are payable to the relevant statutory body and cannot be paid to an employee directly in the form of an award. 9. The claim for general damages is declined, there having been no finding of a violation of the Petitioner’s constitutional rights. **Orders** 1. In the final analysis, judgment is entered in favour of the Petitioner in the following terms: 2. **A declaration is hereby issued that the Petitioner’s termination from employment was unfair and unlawful.** 3. **The Petitioner is awarded one (1) month’s salary in lieu of notice in the sum of Kshs 50,984/=.** 4. **The Petitioner is further awarded compensation for unfair termination equivalent to five (5) months of her gross monthly salary, amounting to Kshs 254,920/=.** 5. **The total award amounts to Kshs 305,904/=.** 6. **Interest shall accrue on the above sums at court rates from the date of judgment until payment in full.** 7. **The Respondent shall bear the costs of the suit.** 8. **The Respondent is also directed to issue the Petitioner with a certificate of service within thirty (30) days hereof.** **DATED, SIGNED** and **DELIVERED** at **MERU** this **4th** dayof **June 2026**. ……………………………… **STELLA RUTTO** **JUDGE** **In the presence of**: Ms. Nyakundi for the Petitioner No appearance Respondent Qabale Court Assistant **ORDER** In 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 had 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 **Civil 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. **STELLA RUTTO** **JUDGE**