Kindiki firm told to pay Sh2.2m for dismissing pregnant lawyer

Justice Mathews Nduma. [Fidelis Kabunyi, Standard]

A court has ordered a law firm associated with Tharaka Nithi Senator Kindiki Kithure to compensate a lawyer Sh2.2 million for sacking her on claims that she was pregnant.

Justice Mathews Nduma, sitting at the Employment and Labour Relations Court in Nairobi, ruled on September 30 that the firm violated Yasmin Josephine Mokaya’s constitutional right.

According to Justice Nduma, Mokaya suffered psychological torture and framed up accusations during the trial, adding that the conduct by the Kindiki was shocking.

“Mokaya was not paid terminal benefits, nor was she compensated for the job loss. The petitioner lost prospects of career progression in a good law firm on unjust grounds,” read the judgment.

The court ordered the firm to pay Mokaya Sh2,274,051.60

Mokaya, in a petition filed on March 19, 2019, sued Professor Kindiki T/A Kithure Kindiki and Associates, saying she joined the law firm as a pupil on June 2, 2015.

In her case, Mokaya said she was admitted to the bar and became an advocate and was retained by the law firm on January 1, 2016.

She added that she continued working diligently and in an exemplary manner until her employment was unlawfully and unprocedural terminated.

Mokaya served the firm on a contractual basis, and her last contract was renewed on December 29, 2017, for one year, commencing on January 1, 2018, and was to end on December 31, 2018.

On January 26, 2018, she said she informed the law firm that she was pregnant and intended to proceed with her maternity leave from March 5, 2018, to June 5, that same year. The maternity leave was approved.

But to her utter surprise, the firm withdrew the leave approval with no sufficient reason or explanation.

Yasmin Mokaya said she was informed that she should forfeit any payment and benefits while on maternity leave. [Courtesy]

Mokaya says she was informed that she should forfeit any payment and benefits while on maternity leave.

She refused the request and informed the law firm that she was entitled to all benefits while on maternity leave.

Mokaya further said she had several meetings with Prof Kindiki on the issue of her maternity leave and benefits while on leave, and he contemplated termination of her contract if she did not write a letter forfeiting her pay during the period.

On March 1, 2018, she says she received a letter of termination. The reason for the termination was due to financial constraints.

She noted that there had been no prior notice that the law firm was facing financial constraints and that some of its employees would be declared redundant.

Mokaya sought a declaration that the termination of her employment was based on her pregnancy, and therefore discriminatory, unfair, unlawful and in violation of the Employment Act. The law firm opposed the suit.

Moses Mpuria, the Director of Finance, Administration and Strategy at the law firm, said Mokaya was not retained because her performance was not exemplary.

He said Mokaya failed her bar examinations whilst serving as a pupil on three different occasions, and Duncan Oketch, an advocate who worked in the law firm, pleaded for her retention until she completed her bar exams.

Mr Mpuria said Mokaya passed the exams on her third attempt and was admitted as an advocate. In December 2016, subsequently, she was offered employment as an associate II in January 2017.

“The petitioner’s performance has never been exemplary. She is slightly below average. It is not true that the employment of the petitioner was terminated on account of her pregnancy. The termination was because the firm could no longer afford to pay her and other employees due to financial constraints,” said Mpuria.

Justice Mathews Nduma dismissed claims that the dismissal was due to financial constraints. [Courtesy]

He said, in a letter dated October 31, 2016, that Kindiki, being the chairperson of the law firm, informed all advocates that the company was experiencing financial difficulties.

Deponent by a letter dated November 7, 2016, the chairman revealed that the firm was in the red to the tune of Sh9 million.

He issued a memorandum dated November 11, 2016, to all staff, indicating new austerity measures to ensure the respondent did not collapse.

Mpuria said Mokaya never applied for maternity leave as required under the law.

The court said Mokaya had proved her case. “The petitioner has proved that the respondent terminated her employment on account of her pregnancy and persistence that she was to take a statutory three months paid maternity leave,” read the judgment.

Justice Nduma said the law firm did not give a one-month notice of redundancy to the petitioner and the Labour Officer.

The judge dismissed claims that the dismissal was due to financial constraints because, after the termination, she was replaced.

“The evidence by the respondent that the termination of the employment of the petitioner was due to financial constraints is untenable.”

“The Court declares that the respondent violated Section 5(3) (a) of the Employment Act, 2007, read with Article 27(4) of the Constitution of Kenya, 2010. The conduct by the respondent was discriminatory, unfair, and unlawful,” ruled the judge.

The court noted that Mokaya lost nine months of employment and means of livelihood on account of pregnancy and at her hour of need and was entitled to compensation for the job loss.