Wambui v Hallmark Marketing Limited (Petition E097 of 2022) [2026] KEELRC 138 (KLR) (28 January 2026) (Judgment)

Wambui v Hallmark Marketing Limited (Petition E097 of 2022) [2026] KEELRC 138 (KLR) (28 January 2026) (Judgment) Neutral citation: [2026] KEELRC 138 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nairobi Petition E097 of 2022 DKN Marete, J January 28, 2026 Between Fidelis Wambui Petitioner and Hallmark Marketing Limited Respondent Judgment 1.This matter is brought to court vide by way of a Petition dated 25th April 2022. It is supported by a Supporting Affidavit sworn on even date, a Further Affidavit sworn on 10th October 2022, and a Supplementary Affidavit sworn on 22nd March 2023. 2.The Respondent opposes the petition in a Respondent’s Answer to Petition dated 25th July 2022, a Replying Affidavit of Heri Nyaki Gathuru sworn on 25th July 2022, and numerous other affidavits filed by their staff, including: Heri Nyaki Gathuru, Lawrence Mungai, Rebecca Akumu,Evans Straighware, Rosemary Shibelenje,Edward Ochanda, Rose Wagathu, Alex Lomosi, Ann Kinyanjui, Eva Muratha, Leah Kikuyu,Theresa Mutuku, Jane Omare, Tabitha Nyambura and Caren Amoit 3.The Petitioner’s case and submissions come out that she was employed by the Respondent from March 2016 as a Customer Service Officer earning a basic salary of Kshs. 50,000.00. She was not issued with a letter of appointment nor provided with an itemized pay advise slip. She was not paid a house allowance, or at all. 4.The Petitioners further case is that i in March 2021, the she developed pregnancy-related complications and was placed on medically recommended bed rest. She duly informed the Respondent. Upon informing the Respondent’s Chief Executive Officer, one, Mr. Phillip Muchimuti of a further required 28-day bed rest on 13th April 2021, she was met with hostility and castigation. Barely two days later, on 15th April 2021, she received a letter placing her on indefinite unpaid leave, citing the COVID-19 pandemic. On 19th April 2021, before the unpaid leave was to commence, she was removed from all 21 work-related WhatsApp groups and her work email was blocked. She contends this amounted to constructive dismissal predicated on her pregnancy, in violation of her constitutional rights under Articles 27, 28, 29, and 41 of [the Constitution](/akn/ke/act/2010/constitution) and Sections 5, 41, 43, 45, and 46 of the [Employment Act](/akn/ke/act/2007/11), 2007. The Petitioner seeks to rely on the authority of Coca Cola East & Central Africa Limited v Maria Kagai Ligaga [2015] eKLR, where the Court of Appeal, adopting the contractual test, defined constructive dismissal as occurring when the employer's conduct constitutes a repudiatory breach of the contract of employment, entitling the employee to treat themselves as discharged. 5.The Petitioner further seeks to rely on the authority of Mabil v Direct Channel Simbatech [K] Limited [2023] KEELRC 823 (KLR), the court, citing the Black's Law Dictionary defined discrimination and emphasized that pregnancy is a prohibited ground for termination under Section 46 of the [Employment Act](/akn/ke/act/2007/11), 2007. 6.The Respondent’s case and submissions is that the Respondent is an agency whose staff engagements are pegged on contracts with its principal clients. The Petitioner’s employment was intermittent and dependent on these contracts. The Respondent denies any discrimination, asserting it has a strong policy of supporting women, as evidenced by its female-majority management and workforce. The decision to place the Petitioner on unpaid leave was a result of financial restructuring necessitated by the COVID-19 pandemic and the termination of client contracts, notably with Githunguri Dairy Farmers Co-operative Society Limited (GDFCS). It is their case that the principle of force majeure applies. 7.It is their further case that the Petitioner was not a diligent employee and had prior performance issues, for which she received warnings. The Respondent challenges the veracity of the Petitioner's medical documentation presented to support her claim for extended sick leave. 8.The Respondent further seeks to rely on the provisions of Section 43, 45, and 47(5) of the [Employment Act](/akn/ke/act/2007/11), 2007, to foment her case. Section 47 (5) of the [Employment Act](/akn/ke/act/2007/11), 2007 particularly comes out thus;(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. 9.It is the Respondent’s case that through and through, the Petitioner has not tendered evidence to establish or demonstrate a case of unlawful termination of employment predicated on discrimination and therefore this Petition must fall by the wayside. 10.I have carefully considered the pleadings, the affidavits, the voluminous exhibits and the written submissions filed by both parties. The issues for determination are:1.What were the terms of the Petitioner’s employment?2.Whether the Petitioner was constructively and unfairly dismissed on account of her pregnancy?3.Whether the Petitioner’s Constitutional rights were violated?4.What remedies, if any, are available to the Petitioner? 11.The 1st issue for determination seeks an answer as to what were the terms the Respondent’s employment. The Respondent contention that the Petitioner was employed on fixed-term contracts dependent on specific clients is not convincing. No evidence of such a fixed-term contracts were produced in evidence. Section 10(7) of the [Employment Act](/akn/ke/act/2007/11), 2007 places the burden of proving the terms of employment on the employer who fails to produce a written contract. The Respondent has not discharged this burden. The consistent payment of salary over five years points to a continuous employment relationship. 12.The 2nd for determination is whether there was a constructive dismissal based on pregnancy, this tilt in favour of the Petitioner’s case. The chronology of events is compelling. The Petitioner’s request for additional medically sanctioned bed rest on 13th April 2021 was immediately met with a letter of indefinite unpaid leave on 15th April 2021, followed by her expulsion from critical work communication channels on 19th April 2021. This sequence, occurring within days and while the Petitioner was vulnerable due to pregnancy complications, signifies a reaction to her pregnancy and not a pre-planned restructuring due to COVID-19. 13.The Respondent’s claim of a widespread COVID-19 restructuring is not substantiated by credible evidence. No redundancy notices, meeting minutes or universal staff communications were presented. The act of removing an employee from all work platforms while on authorized sick leave is a repudiatory breach of the employment contract, demonstrating an intention to no longer be bound by it, as defined in the Coca Cola authority above cited. It rendered the working relationship intolerable and unbearable. 14.Further, Section 46(a) of the [Employment Act](/akn/ke/act/2007/11), 2007 explicitly states that an employee’s pregnancy "shall not constitute a fair reason for dismissal." The Respondent's actions, viewed objectively, were inextricably linked to the Petitioner's pregnancy and her need for medical accommodation. The purported reason of COVID-19 restructuring appears to be a pretext. Consequently, I find that the Petitioner has discharged the burden of proving unfair termination, and the Respondent has failed to justify the grounds for the said termination as required by Section 45 and 47(5) of the [Employment Act](/akn/ke/act/2007/11), 2007. 15.On the third issue, the actions of the Respondent violated the Petitioner’s constitutional rights. Placing her on indefinite unpaid leave and severing her from work communications due to her pregnancy constituted direct discrimination as per Article 27 of [the Constitution](/akn/ke/act/2010/constitution). Subjecting her to this treatment while she faced serious health challenges and the tragic loss of her child amounted to inhuman treatment and a violation of her dignity under Articles 28 and 29. This was also a clear violation of her right to fair labour practices under Article 41 of the said Constitution. 16.I am therefore inclined to allow the Petition and order as follows;i.A Declaration be and is hereby issued that the Petitioner was constructively and unfairly dismissed on account of her pregnancy and in violation of the [Employment Act](/akn/ke/act/2007/11), 2007 and her rights under Articles 27, 28, 29, and 41 of [the Constitution](/akn/ke/act/2010/constitution), 2010.ii.One (1) months salary in lieu of notice…….…………………………. Kshs. 50,000.00.iii.Un paid House Allowance at 15% of basic salary for 61 months……Kshs. 457,500.00.iv.Unpaid Leave for 5 years (21 days per year) =21/30x50,000.00x5.... Kshs. 175,000.00.v.Service Pay …15/30xKshs.50,000.00x5 …………………………… Kshs. 143,750.00.vi.Twelve (12) months’ gross salary as Compensation for Unfair Termination of employment………………………………………………………..…..Kshs600,000.00. 17.This is in consideration of the egregious nature of discrimination on account of pregnancy and the profound personal suffering endured by the Petitioner, including the loss of her child.vii.Compensation for Violation of Constitutional Rights……………… Kshs.3,000,000.00viii.The violations were serious and warrant significant redress under Article 23 of [the Constitution](/akn/ke/act/2010/constitution). I award Kshs.3,000,000.00 under this head, having considered the comparative jurisprudence as cited by the Petitioner in her submissions. I also note there has been no attempt by the Respondent to distinguish the authorities cited by the Petitioners.Total of award…………………………………………… Kshs. 4,426,250.00ix.This award shall attract interest at court rates from the date of this judgment until payment in full.x.The Cause of the Petition shall be borne by the Respondent. **DELIVERED, DATED AND SIGNED THIS 28 TH DAY OF JANUARY 2026.****D. K. NJAGI MARETE****JUDGE** Appearances:Mr. Amelemba instructed by Amalemba & Associates Advocates for the Petitioner.Mr. Mtange instructed by P. K. Mtange & Company Advocates for the Respondent.