https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1531

Nyambu v Fanaka (Cause E005 of 2025) [2026] KEELRC 1531 (KLR) (5 June 2026) (Judgment) Neutral citation: [2026] KEELRC 1531 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Voi Cause E005 of 2025 M Mbarũ, J June 5, 2026 Between Belinda Mkanjala Nyambu Claimant and Elimu Fanaka Respondent Judgment 1.The claimant is seeking the followinga.A declaration that the respondent employed unfair labour practices in its disposition towards the claimant and consequently breached the claimant’s right to fair labour practices as conferred by article 41(1) of the Constitution.b.A declaration that the respondent discriminated against the claimant on account of her pregnancy in its disposition towards the claimant and consequently breached the claimant’s protection against discrimination as conferred under section 5(3) of the Employment Act.c.A declaration that the respondent’s termination of the claimant’s employment was manifestly unfair and unlawful.d.An order that the respondent pay the claimant the equivalent of the annual salary while in the former employment at Ksh. 772,000 as damage compensation for unfair labour practices.e.An order that the respondent pay the claimant's annual salary of Ksh. 672,000 compensation for unfair and unlawful termination. An order that the respondent pay the claimant 3 months' salary, Ksh. 180,000 for a maternity leave payment.f.Costs of the suit and interests on the awards. 2.The claim is that the claimant is an adult female. The Respondent is a non-profit organisation working with rural public primary schools in Kenya to improve the quality of education. 3.The respondent employed the claimant on 5 October 2022 as a senior programme associate under a one-year contract, with effect from 15 October 2022 to 15 June 2023, at a salary of Ksh. 35,000. 4.From 16 October 2023 to 26 June 2024, the claimant was retained under indefinite terms. Later on, 26 June 2024, the claimant was promoted to programme manager under a one-year contract, effective from 26 June 2024 to 30 June 2025. Salary increased to Ksh 56,000 per month. 5.During the employment period, the respondent did not subject the claimant to any performance appraisal or disciplinary process. Save for several reprimands for minor omissions and inadvertence, the claimant was highly regarded in her work. 6.The claim is that on 28 March 2025, the claimant wrote to the chief operating officer (COO), copying the chief executive officer (CEO), that she would be taking maternity leave in August 2025. However, this communication led to events that resulted in the termination of employment. The salary scheduled for review in 2025 was not affected. A performance appraisal was instituted, leading to termination of employment. She was required to report to the COO instead of the CEO, as before. 7.The claim is that, following the maternity leave notice, the CEO became interested in the claimant’s work duties by assuming direct supervision of them. To the claimant, this was actuated by malice and intent to terminate her employment. The ante-natal clinic days would not be considered as sick leave, contrary to fair labour practices. The respondent considered taking antenatal clinic days as part of the annual leave. The respondent had no policy framework for maternity leave, hence the claimant was discriminated against. 8.On 2 May 2025, the respondent placed the claimant on a performance improvement plan (PIP). This was for a month ending on 2 June 2025, but there were no policy guidelines for the PIP, nor was it an administrative measure to help the employee improve their work performance. The PIP issued did not include any support mechanism to help the claimant perform or improve on her duties. During the PIP, the CEO introduced new tasks, and despite the claimant's protests, no fair procedures were in place to address them. This was with malice and was intended to terminate employment. 9.On 24 June 2025, the claimant was issued with a PIP evaluation report. As expected, the return was poor. The respondent, through the CEO, recommended that the claimant be reassigned to a programme associate position. This demotion was not reasonably an outcome of an objective PIP and evaluation process. This was aggravated by the claimant's announcement of her pregnancy and maternity leave. 10.On 30 June 2025, the claimant was presented with a new contract for the position of programme associate. Despite her reservations about the demotion due to her pregnancy and her awareness that she would not be able to secure new employment, the claimant opted to accept the contract and demotion, which commenced on 1 July 2025 and ended on 30 June 2026. The reporting line changed to the programme fellow instead of the CEO. 11.On 7 July 2025, the claimant submitted her 3 leave application forms to the CEO. The applications include a doctor’s appointment leave application, a vacation leave application, and a maternity leave application. The CEO approved the maternity leave from 4 August 2025 to 4 November 2025. By this date, the claimant had 3 accrued annual leave days and 7 sick leave days. In total, there were 12.75 leave days available. However, the sick leave was reviewed upon the claimant's demotion and the program's announcement, to the claimant's disadvantage. 12.On 15 July 2025, the claimant woke up feeling unwell and was unable to go to work. She wrote an email to the CEO about the illness. In reply, the CEO stated that if the claimant did not wish to work professionally, she should tender her resignation rather than frustrate and disrupt programme work. The claim is that this amounted to harassment, intimidation and unfair labour practices. This took a toll on the claimant's health and well-being, and during the scheduled antenatal clinic on 21 July 2025, the doctor recommended 14 days of bed rest. The claimant served the respondent with the sick note, Certificate of Incapacity. 13.Despite submitting the certificate, the CEO, the COO, and the administrative manager sent emails and held phone calls directing the claimant to show up at work. 14.The claim is that, despite the claimant being on sick leave and bed rest due to her pregnancy, the respondent issued her a notice of summary dismissal on 23 July 2025. The claim is that she became a victim of unfair labour practices. This was discriminatory due to pregnancy. This was apparent from the issuance of the PIP and the failure to review the salary. The demotion was discriminatory treatment and harassment. This was in breach of section 10(5) of the Act. The demand to report to work while on sick leave was inhumane and showed the respondent was biased and acted out of malice. 15.The respondent was in breach of section 46(b) of the Act, which protects an employee who is pregnant and seeks to take maternity leave. The unfair labour practices are apparent, the unlawful conduct and discriminatory treatment warrant the award of the remedies sought. 16.The claimant testified in support of her case that upon employment with the respondent, she worked diligently until March 2025, when she announced that she was pregnant and would be taking maternity leave in August 2025. This announcement initiated a series of events that led to the termination of employment. The respondent, through the CEO, started harassing her and accused her of poor performance, which was not in issue before. She was issued a PIP with no support. The CEO arbitrarily added new tasks to the PIP without providing the claimant with any support. When she applied for sick leave, it was not well received, and despite the doctor recommending bed rest due to her pregnancy, the CEO summoned her back to work. 17.The claimant testified that her contract ended on 30 June 2025. The respondent used this as a pretext to issue a new contract with a demotion. Her reporting lines were changed as an additional form of harassment and intimidation. Before the claimant could start her maternity leave on 4 August 2025, she fell ill and reported it to the CEO. Instead of being approved for sick leave, she was summoned to work on 21 July 2025. She was directed to hand over her duties since she would be away for over 3 months. However, the respondent took sick leave, which was treated as an absence from duty, and a notice of summary dismissal was issued. 18.The claimant testified that, since she announced her pregnancy to the CEO, a series of events had frustrated her employment. The PIP, the demotion, and the eventual summary dismissal were all applied in a discriminatory manner; they constituted an unlawful and unfair labour practice. Response 19.In response, the respondent admitted that, under a contract dated 5 October 2022, the claimant was employed as a senior programme associate for a one-year term at Ksh. 35,000 per month. The contract was renewed on similar terms. In the contract dated 26 June 2023, the claimant was promoted to programme manager and paid Ksh. 56,000 per month. The contract expired on 30 June 2025. The claimant was reporting to the CEO. 20.Following a PIP and management recommendation, the claimant was reassigned to the position of programme associate under a new contract dated 30 June 2025. It was a fixed-term contract from 1 July 2025 to 30 June 2027. On the same salary as Ksh. 56,000 per month. 21.Under the initial contract, the claimant's duties were defined, including programme execution, stakeholder engagement, capacity building, monitoring and evaluation, and fundraising. Upon her promotion, the claimant’s duties shifted to high-level management and strategic oversight with key performance indicators (KPI) focused on programme coordination at 85% and strategic design at 40%. These included strategic leadership, operational oversight, curriculum development, high-level stakeholder engagement and specific programme milestones. 22.Following the contract and reassignment of role on 30 June 2025, the claimant’s role was focused on the Imarisha Teacher Professional Development and Leadership programme. The core duties included programme implementation, volunteer coordination, curriculum rollout, quality assurance and reporting. 23.During her employment, the claimant was regulated under various policies. There were the standard operating procedures, institutional policies, and the code of conduct. The claimant was also subject to the Talent Policy, which governed professional transactions, leave procedures and performance expectations. Under the policy, the claimant was subject to annual leave, public holidays, sick leave, bereavement leave and study leave benefits. There were the following:a.21 leave days.b.7 sick leave days.c.3 months maternity leave. 24.Under the policies, the claimant was apprised with briefings and a PIP was initiated. During the claimant’s tenure as the programme manager, a consistent decline in work quality and failure to meet critical deliverables were noted. These shortcomings were communicated, and instead of terminating her employment, the option taken was a reassignment of duties to a programme associate to align with her capacities. The claimant accepted the reassignment and executed her contract. The new contract took effect on 1 July 2025 on the same salary. The claimant was given a chance to discuss the new contract with her lawyers before execution. The claim that there was an unfair demotion due to an alleged pregnancy is without merit since it followed due process and assessment. 25.The Respondent first became aware of the Claimant's pregnancy on 28 March 2025, through an email in which the Claimant expressed her intention to proceed with maternity leave in August 2025. The Respondent immediately acknowledged the news with congratulations and, by a response dated the same day, provided clear instructions for the Claimant to begin a transition plan to ensure continuity and zero disruption of workflow, specifically mentioning critical programmes such as the Teacher Convening, Innovated, Tech Boost, and Kuza Lab Training. Notwithstanding the Respondent's early and supportive intervention, the Claimant demonstrated a persistent and unexplained reluctance to engage in a formal handover process. 26.Despite repeated reminders between March and July 2025 for the Claimant to delegate tasks to her peers, namely Beryl, Rernmy, and Liz, she failed to produce a comprehensive handover report or train her colleagues in the technical aspects of her portfolio. In July 2025, the Claimant's handling of her leave and professional obligations became increasingly disruptive. 27.On 7 July 2025, the claimant simultaneously submitted multiple leave requests for doctor's appointments, vacation, and maternity leave. 28.While the Respondent approved the medical and maternity leave components, the Claimant's subsequent conduct severely frustrated the Respondent’s operations:a.Failure to Notify: In early July, she informed the team of her inability to attend a high-stakes Kuza Labs session only twelve minutes before the meeting was scheduled to commence, leaving the Respondent without an alternative facilitator.b.Refusal to Hand Over: Following a period of absence on medical grounds dated 6 July 2025, the Respondent requested the Claimant to finalise her handover notes to prevent the collapse of programs scheduled for August through November 2025.c.Breach of Professional Conduct: Despite the availability of communicating via digital platforms, the Claimant refused to provide the necessary handover data or report to the office to facilitate a professional exit, even after several follow-ups via email and Slack. 29.As a direct result of the Claimant's unplanned and poorly communicated absences, critical programs, including the Imarisha TPLD rollout and Kuza Curriculum Design, suffered significant delays. Other team members were forced to assume the Claimant's workload without adequate briefing or documentation, thereby jeopardizing the Respondent's reputation with its stakeholders and partner schools. While it respected the Claimant's right to maternity and sick leave, she used her condition as a shield for professional negligence and a total abandonment of her contractual duties. 30.On July 23, 2025, following a protracted period of performance and conduct issues that remained unresolved despite extensive management support and the provision of a PIP, a notice terminating employment was issued. The documented grounds of Persistent Underperformance necessitated the decision to terminate. Despite the reassignment on July 1 2025, intended to assist the Claimant in managing her workload, she continued to fail in her core deliverables, particularly regarding the Imarisha TPLD rollout and the Kuza Curriculum Design. There was Professional Negligence: The Claimant's failure to attend the high-stakes Kuza Labs session in early July that directly jeopardized the Respondent's relationship with its stakeholders. Abandonment of Handover Responsibilities: Throughout the month of July 2025, the Claimant ignored repeated requests to finalize her transition notes and train her peers. Her refusal to provide technical data for programs scheduled for the latter half of 2025 was viewed as an act of bad faith and professional sabotage. 31.The termination of employment was conducted in accordance with Section 44 of the Employment Act due to the Claimant's fundamental breach of contract. The Respondent, as a gesture of goodwill, offered and paid the Claimant three months' salary in lieu of notice. This offer significantly exceeded the one-month notice period stipulated in her employment contract. 32.The termination of employment was a direct result of the Claimant's conduct and performance failures. It was entirely unrelated to her pregnancy, as evidenced by the months of prior documentation and the Respondent's early attempts to plan for her maternity leave. The claims are without merit and should be dismissed. 33.In evidence, the Respondent called Kazi Mghendi, the Founder and Team Leader of Elimu Fanaka. She testified that in her capacity, she is responsible for the overall strategic direction of the organisation, the oversight of all program implementations, and the management of our senior staff. She was therefore conversant with the facts of this case. 34.Mghendi testified that the claimant was under a term contract for the duration of her employment with the respondent. Under the Contract dated 5 October 2022, the Claimant was initially employed by the Respondent as a Senior Program Associate for a one-year term ending on 15 October 2023. Under the contract dated 26 June 2024, the Claimant was promoted to the rank of Programs Manager, with the contract expiring on 30 June 2025. 35.However, as her responsibilities grew, her performance began to falter significantly. Following a structured PIP, the respondent and the respondent's manager collectively decided not to terminate her but to offer her a more suitable role. Effective 1 July 2025, the Claimant was reassigned to the position of Imarisha Program Associate pursuant to a new contract of employment dated 30 June 2025. 36.Mghendi testified that the Claimant’s duties and responsibilities were progressively defined by her successive contracts of employment and the specific job descriptions. In the course of her employment, the Claimant was contractually bound by the Respondent’s standard operating procedures and institutional policies. She was required to comply with the Respondent’s policies, Code of Conduct and act in accordance with its core values and mission, and was subject to the Respondent’s Talent Policy, which governed professional transitions, leave procedures, and performance expectations. 37.Due to noted poor work performance, the respondent placed the claimant on a PIP. This was to provide the Claimant with a structured framework for improvement. She received extensive support during the PIP period, including frequent one-on-one check-ins with the Founder and Team Lead, clear evaluation criteria, and specific task-based guidance. The Claimant was offered coaching and training during the duration of the PIP. She was constantly reviewed by the Respondent and had constant check-ins with her line manager. Despite this institutional support, the PIP Evaluation Report dated 11 June 2025, detailed significant and unresolved performance failures. 38.Rather than terminating her employment at that stage, the Respondent exercised leniency by reassigning her to the role with her demonstrated capacity. The Claimant’s transition from the role of Programs Manager to that of Program Associate was a consensual contractual variation and not a unilateral demotion as alleged. The Claimant voluntarily entered into a new contract of employment dated 30 June 2025. 39.Mghendi testified that the Respondent first became aware of the Claimant’s pregnancy on 28 March 2025, through an email communication in which the Claimant expressed her intention to proceed on maternity leave in August 2025. This was the first time a female employee had taken maternity leave, and the entire team supported her. To begin the process, a transition plan to ensure continuity and zero disruption of workflow, specifically mentioning critical programs such as the Teacher Convening, Innovated, Tech Boost, and Kuza Lab Training, was put in place. However, the claimant frustrated the process and refused to hand over or train her team members. Despite reminders, she refused to cooperate. Instead, she made multiple applications for leave. On 7 July 2025, she submitted multiple leave requests simultaneously for doctor’s appointments, vacation, and maternity leave. The Respondent approved the medical and maternity leave. 40.As a direct result of the Claimant’s unplanned and poorly communicated absences, critical programs, including the Imarisha TPLD rollout and Kuza Curriculum Design, suffered significant delays. 41.Mghendi testified that the Claimant’s employment was terminated on 23 July 2025, following a protracted period of performance and conduct issues that remained unresolved despite extensive management support and the provision of a PIP. Reasons given were valid and justified. Terminal dues were paid, including 3 months' notice. Determination 42.The issues to be determined are the nature of the employment relationship and its terms; whether there was discrimination against the claimant based on her pregnancy; whether there was unfair termination of employment; and whether the remedies sought should be granted. 43.By notice dated 23 July 2025, the respondent terminated the Claimant's employment with immediate effect, save for payment in lieu of 3 months' notice. The reasons for termination were that, after she was placed on a PIP, her performance did not improve. She was reassigned duties under a new contract, but there was still no improvement. Other reasons included that she had failed to communicate about crucial programme activities necessary to the organisation, failed to meet key responsibilities in her programmes, and refused to hand over her duties or to prepare her team for her forthcoming prolonged maternity leave. 44.Cumulatively, the respondent found the claimant to have Persistent underperformance, Professional Negligence, and Abandonment of Handover Responsibilities. This was found to be gross misconduct necessitating summary action and termination of employment. 45.The claimant does not fundamentally contest the PIP report or the results thereof, which indicate her declining performance. Equally, there is no contest about the lapses in the duties and responsibilities assigned under her programme work or that she failed to undertake the handover of duties following notice to proceed on maternity leave from August 2025. The case is that since announcing her pregnancy in March 2025, the respondent officers, including the CEO, started frustrating her work, she was denied deserved time off to attend antenatal clinics and ultimately placed on PIP, demoted, and her employment was terminated. 46.Without contesting the core reasons for the termination of employment, the reason leading to termination of employment are valid. save to make a case that the given reasons were not correct, but due to pregnancy. 47.However, for a termination of employment to pass the fairness test, it must be shown that there was not only substantive justification for the termination but also procedural fairness, as held in Postal Corporation of Kenya v Tanui [2019] KECA 489 (KLR) and Kabura (As the Administrator of the Estate of Ishak AF) v Board of Trustees National Social Security Fund [2025] KECA 733 (KLR). Each case must be examined on its facts and merits. The court emphasised that the procedures undertaken by the employer must be assessed in accordance with Section 43 of the Employment Act, which provides as follows: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 the explanation.2.Notwithstanding any other provision of this Part, an employer shall, before terminating the employment of an employee or summarily dismissing an employee under section 44(3) or (4), hear and consider any representations which the employee may, on the grounds of misconduct or poor performance, and the person, if any, chosen by the employee within subsection (1) make. 48.It is not contested that, upon being placed on a PIP and the resulting report, the claimant was found to be performing poorly. She was issued a new contract with fewer duties. Although the new contract had a new role and different reporting lines, the salary remained unchanged. The respondent gave the claimant time to study the new contract and make consultations before executing it. She did and returned it signed. 49.It was a new employment as agreed, commencing on 1 July 2025. It was a one-year contract. 50.Under section 10(3) of the Act, the employer may issue a fixed-term contract with start and end dates. This is legitimate and valid. The claimant accepted and signed her contract. This is lawful, as held in Transparency International - Kenya v Omondi [2023] KECA 174 (KLR). The court emphasised that in a fixed-term contract, the employer has no duty to give notice at the end of the term. It terminates automatically. See Keen Kleeners Limited v Kenya Plantation and Agricultural Workers’ Union [2021] KECA 352 (KLR). 51.On 7 July 2025, the claimant applied for maternity leave. This was to commence on 4 August 2025 and continue to 4 November 2025. 52.The CEO approved the maternity leave application on 7 July 2025. 53.The claimant also applied for sick leave and antenatal clinic days. This followed a long exchange of emails with the COO, discussing how leave was accrued. 54.On 10 July 2025, the COO indicated as follows:The leave balance will come to 3.75 days. Here is the breakdown: As of 30 June, Belinda had 4 accrued leave days remaining. She took 4 July off and plans to take another day off on 18 July for her clinic visit. By the end of July, she will have accrued an additional 1.75 days for the month. 55.The claimant did not take this kindly. She protested that the clinic days were deducted from her annual leave. The clinic's monthly visits were also not counted as sick leave and were treated as part of her annual leave days. 56.A schedule was shared to this effect.What comes out clearly to the court is that, despite the new contract phase starting on 1 July 2025, there was no closure of the employment relationship ending on 30 June 2025. Leave days, accrued benefits, and the contract's lapse seem to have been carried forward into the next employment relationship. 57.This was an error on the part of the respondent. 58.Closure of one relationship was necessary before commencing a new employment relationship and contract. 59.The back-and-forth on the claimant's leave applications seems to have taken a toll on her. She became unwell, and upon visiting the doctor, she was given time off. A sick off note was issued. She presented it to the respondent on 21 July 2025. 60.In the meantime, the CEO required the claimant to be at the office to sign some documents and complete the handover report on her docket and pending assignments. This was not done. 61.The claimant was summoned to the office on 23 July 2023. She attended but did not complete the handover. 62.The meeting with the COO and CEO is recorded, yet the claimant made no responses. She claims that she was already on sick leave based on the medical note. The CEO was adamant that the claimant was taking a long leave until November 2025; she had failed to undertake the handover since May 2025, and the least that was required of her was to issue the handover report. 63.The employer may terminate employment under sections 44 and 41 of the Act on short notice. This arises where the employee is guilty of gross misconduct or breaches the employment contract. 64.The claimant was recalled to the office for a meeting following a summons, prior to the termination of employment. The claimant defended herself by stating that she was on sick leave. 65.An employer is allowed the sanction of summary dismissal under section 44 of the Act where the employee fails to adhere to lawful instructions and directions as held in Kavithe v Miller t/a Miller and Company Advocates [2026] KEELRC 578 (KLR). This is emphasized in Hosea Akunga Ombwori v Bidco Oil Refineries Limited [2017] KEELRC 1599 (KLR). However, the employee must be secured under section 41(2) of the Act. There must be notice of the allegations against the employee, allowing her to respond in the presence of another employee of her choice. This simple procedure is mandatory. See Barclays Bank of Kenya Limited v Banking Insurance & Finance Union [2026] KECA 851 (KLR), where the court held that the right to a hearing before termination of employment, whether with notice or short notice, is mandatory. Thus, under sections 44 and 41 of the Act, the employee must be allowed, upon notice, to attend the shop floor with another employee of her choice to tender her responses to any matter likely to result in termination of employment. 66.In this case, the claimant was recalled from her sick leave days allowed by her doctor. This had been brought to the attention of the respondent as the employer. Despite the fact that the claimant had refused to follow reasonable and proper instruction of the employer from May to July 2025 to do a handover of her duties before proceeding on maternity leave due in August 2025, the burden was on the respondent as the employer to ensure that before the meeting that was held on 23 July 2025 leading to termination of employment, the mandatory provisions requiring notice and attendance with another employee was adhered to. 67.I find that the Respondent had a genuine reason for terminating the Claimant's employment as required under Section 43 of the Act. However, there was a lapse in the due process, particularly procedural fairness. 68.I find the termination of the Claimant's employment by way of summary dismissal unfair for want of due procedure. 69.The summary dismissal, communicated by notice dated 23 July 2025, resulted from the disciplinary hearing held on 22 July 2025 and was devoid of protections under section 41 of the Act. 70.Under sections 45 and 49 of the Act, the claimant is entitled to notice pay and compensation. 71.At the end of the employment, the respondent paid the claimant 3 months' pay in lieu of notice. Under the contract commencing on 1 July 2025, the claimant was only entitled to 1 months’ notice. Hence, the notice pay awarded was in excess of the contractual threshold. 72.In this regard, having taken into account the two months' extra payment, which was paid immediately and employment terminated under section 45(5) of the Act, the court is required to take such payments into account. Accordingly, one month's payment in compensation will result in 3 months' compensation to the claimant. 73.The respondent shall pay one month's salary compensation to the claimant in addition to the generous notice pay. 74.With regard to the claim that there was discriminatory treatment due to pregnancy, as outlined above, pregnancy is not a sickness or illness. However, the court recognises that with pregnancy, one is prone to illness or sickness. 75.The respondent had a workplace policy that allowed maternity leave. This was approved for the claimant from 4 August 2025. From May 2025, the respondent was aware of this fact and thus took steps to ensure the claimant completed her duties well before the leave date. Her performance declined, and she refused to undertake handover. 76.In this case, the claimant treated her antenatal and pregnancy clinic attendances as sickness or illness. This is not the case. The ultimate allocation of sick leave days following a doctor’s visit on 21 July to 4 August 2025, when the maternity leave was to commence, came at a time when the respondent had issued directions on 17 July 2025, directing the claimant to delegate her duties to the team members without compliance. 77.On the claim that there was discriminatory treatment due to pregnancy, the claimant was under a fixed-term contract at the time her employment was terminated. The contract commenced on 1 July 2025. She signed the contract to accept its terms and conditions. Her case was that this was a demotion after an unfair PIP appraisal report that was applied to her in a discriminatory manner. Her justification for such an assertion was that she had signed the contract while she was pregnant, was due for maternity leave on 4 August 2025, and had no chance of securing a new job, which she needed to support herself. 78.The respondent maintained that the claimant was placed on a PIP following poor performance, and upon appraisal, she had not achieved her target. Her contract lapsed, and upon renewal, it was found necessary to allocate her non-administrative duties. She accepted the new contract and signed it. 79.A term contract is an acceptable mode of employment pursuant to section 10(3) of the Act. The employee who is issued a term contract must read the terms and conditions before executing and accepting it. 80.In this case, the claimant was aware of various matters ongoing between her and the respondent by 1 July 2025 when she signed and accepted her term contract. Before the contract ended on 30 June 2025, she was on a PIP. She was apprised. The results were poor. She does not contest the results, save to urge the court that this result stems from a series of discriminatory assessments due to her pregnancy. However, the items identified as contributing to her non-performance are not discussed. 81.Under the new contract, the role had changed. The new contract did not change the salary from the previous position. The respondent explained that the change in position was intended to give the claimant fewer duties so she could cope, but her performance still did not improve. 82.As outlined above, a term contract is a legitimate mode of employment as held in Transparency International – Kenya v Omondi [2023] KECA 174 (KLR). Section 10(5) of the Act permits changes to employment terms with the employee's consent. The claimant signed her employment contract. The assertion that this was discriminatory treatment, despite her not protesting the contract's signing, has no basis. 83.The term contract between the parties at the time of termination of employment was lawful. 84.Under paragraph 10 of the Memorandum of Claim, the claimant asserts that her antenatal clinic visits would not be considered as sick leave by the respondent, which was an unfair labour practice. However, pregnancy and maternity leave are not classified as sickness under the law and therefore do not justify taking sick leave. They are treated differently and separately under sections 29, 30 and 34 of the Act. The motions to take maternity leave and sick leave are fundamentally different. 85.Under paragraphs 20 and 21 of the Memorandum of Claim, the claimant asserts that by 7 July 2025, she had 3 accrued leave days and 7 sick leave days. She was thus entitled to claim 12.75 days of leave. 86.It does not work like that.Whereas annual leave is a right under section 28 of the Act, sick leave is not automatic. It does not accrue as of right. It is reserved for deserving cases only. It arises upon sickness or illness and cannot be tabulated as accrued leave days unless there is certification of illness under section 34 of the Act. The claimant’s assertion that she was entitled to 12.75 leave days at the time she applied for maternity leave was a gross miscalculation. 87.Such benefit did not arise at all.Despite the employment contract stipulating a 30-day sick leave provision, such leave was available only upon sickness. 88.In Simon Gitau Gichuru v Package Insurance Brokers Ltd [2017] KEELRC 566 (KLR), the court recognised that in determining the question of discriminatory treatment at the workplace, the court must look at the totality of the case at the shop floor. The court held that Section 5(3) (a) of the Act was a normative derivative of Article 27 of the Constitution with regard to discriminatory treatment at the workplace. Thus, Article 27 of the Constitution was not a mere reference to the generality of a Constitutional provision, disentitling the employee to seek damages for a violation of her constitutional right to non-discrimination. See Aviation and Allied Workers Union of Kenya v Kenya Airway Ltd & 3 Others [2017] eKLR. 89.Where there is a claim requiring Constitutional interpretation and application of the Constitution, including non-discrimination under Article 27, the court must make a determination, as held in Okiya Omtata Okoiti vs The Central Bank of Kenya & others, Applic. No 32 of 2018 and Kenya Ports Authority v Munyao & 4 others [2023] KESC 112 (KLR). 90.In this case, the claimant relies on the non-discriminatory provision under the constitution and the Act to assert that since she announced her pregnancy, the respondent started a wave of discriminatory treatment against her. However, the claimant completed her term contract in June 2025; she was found to be performing poorly, and a report was issued, which is not contested. 91.The claimant applied for maternity leave, and this was approved to commence on 4 August 2025. Toward this end, she was required to prepare her team to take over her duties in her long absence from August to November 2025. The claimant did not comply. Instead, she took her antenatal and maternity clinic days as sick leave, thereby failing to perform her duties professionally. 92.Despite being directed to hand over on 17 July 2025, the claimant did not. Instead, she secured sick leave to coincide with the maternity leave. 93.In the interim, the respondent issued a notice to show cause and the claimant attended on 22 July 2025. She opted to be silent at the hearing. 94.On the one hand, the respondent felt aggrieved that despite the maternity leave approval, the claimant had refused to hand over her duties. An important project was being implemented but the leader, the claimant had not performed her duties well, yet she refused to delegate and get assistance from the team. On her part, the claimant felt aggrieved that the COO and CEO were targeting her for termination of employment due to her pregnancy. 95.However, when invited to show cause, the claimant's silence resulted in her forfeiting the opportunity to present her case. Although already on sick leave per the Medical Sheet dated 21 July 2025, the claimant went back to the office on 22 July 2025. Opting not to respond to the issues raised by the respondent did not aid her case at all. 96.This is aptly captured in Ndimu v Rising Communications Limited [2026] KEELRC 1320 (KLR) and in Mohamed v National Bank of Kenya Limited [2026] KEELRC 515 (KLR), where the courts have held that once the employee is invited to the shop floor for a hearing, this opportunity must be seized and addressed accordingly. Where the claimant needed to address the fact that she was already on sick leave or was being distressed by the decisions to undertake the handing over of her docket, such should have been addressed instantly on 22 July 2025. She squandered the moment. 97.Silence led to the termination of employment.This had nothing to do with being pregnant. The respondent had already approved the maternity leave. The claimant had a duty under her employment contract to undertake her duties professionally and diligently. 98.The court finds no matter of discriminatory treatment against the claim on the allegations of being pregnant. No damages are due. 99.As to the claim for costs, the claims addressed above, each party shall bear its costs. 100.Accordingly, save for compensation at one month's gross pay less statutory deductions, the other claims are dismissed. Each party shall bear its costs. DELIVERED AT VOI IN OPEN COURT THIS 5TH DAY OF JUNE 2026M. MBARUJUDGECourt Assistant: SamuelPresent:………………………… and …………………