Senator Kindiki ordered to pay Sh2.2m for terminating pregnant staff

Tharaka-Nithi Senator Kithure Kindiki is in a legal storm for sacking his pregnant employee upon her refusal to take unpaid three-month maternity leave. 

The Labour Relations Court has ordered Prof Kindiki to compensate Yasmin Josephine Mokaya, a lawyer who worked at his law firm, Sh2.2 million for unlawfully terminating her employment. 

Justice Mathews Nduma ruled that Prof Kindiki's decision to fire the lawyer after she refused to take an unpaid maternity leave violated her constitutional right against discrimination on grounds of pregnancy. 

Prof Kindiki will pay the young advocate Sh1.5 million as damages for violation of her rights, Sh552,894 (equivalent to six months compensation for unlawful and unfair termination of employment), Sh129,008 (compensation for unspent leave days) and Sh92,149 (her one month salary in lieu of notice).

"The court finds and declares that Prof Kindiki violated Section 5(3) (a) of the Employment Act (2007) read with Article 27(4) of the Constitution for terminating the employment of Ms Mokaya on account of her pregnancy. The conduct by Prof Kindiki was discriminatory, unfair, and unlawful," said the judge, adding that the Ms Mokaya did not contribute to her termination. 

Ms Mokaya joined Prof Kindiki's law firm, Kithure Kindiki & Associates, as a trainee in June 2015 and upon being admitted to the Bar, she was retained by the firm in January 2016.

She worked on contractual basis until January 2018 when she informed the professor that she was pregnant, and that she intended to proceed on her statutory three-month maternity leave from March 5 to June 5, 2018. 

The lawyer told court that the said leave was duly approved but the chairman and founder of the law firm, Prof Kindiki, rescinded the paid leave offered to her. 

Entitled to compensation

He cajoled her to accept unpaid leave and when she refused, Prof Kindiki hinted to her that her employment would be terminated unless she changed her mind.

When she persisted that she was entitled to all payments and benefits due to her while on maternity leave, she received a notice of termination of her employment written by Prof Kindiki dated March 1, 2018 to take effect on March 31.

"It is opportune to note that the notice of termination was made and dated a few days to the date the petitioner was due to leave for her maternity leave," stated Justice Nderi in his judgment. 

The letter stated that the reason for the termination was due to “a long spell of financial constraints.”  

It was therefore declaring her redundant, which reason was without basis since the firm had just renewed the contract up to December 2018. 

Justice Nderi declined Prof Kindiki's defence that the termination of the employment was due to financial constraints. 

The judge said this defence is clearly untenable and devoid of any merit because when Ms Mokaya left she was immediately replaced with another advocate named Lilian Nyaga.

In addition, no letter was produced by the firm regarding financial constraints in the period 2017-2018 when Ms Mokaya worked for the law firm. 

In finding that Ms Mokaya is entitled to compensation for the job loss, the judge noted that she lost nine months of employment and means of livelihood on account of pregnancy and at her hour of need, when she needed those finances most, for prenatal and postnatal care.

"She suffered psychological torture and framed up accusations during this trial. The conduct by the law firm is egregious.  She was not paid terminal benefits nor was she compensated for the job loss.  She lost prospects of career progression in a good law firm on unjust grounds," said Justice Nderi.

Termination on account of pregnancy

Mr Moses Mpuria, the Director of Finance, Administration and Strategy at the law firm, told court that Ms Mokaya was retained by the firm not on account of her exemplary performance but actually the retention was on ex-gratia basis.

Mr Mpuria said Ms Mokaya failed her Bar examinations whilst serving as a trainee on three different occasions and advocate Duncan Oketch, who worked for the firm, pleaded for her to be retained until she completed her tests.

Although she passed her exams on third attempt and was admitted as an advocate in December, 2016, he said, her performance was slightly below average.

Mr Mpuria further said it is not true that the employment of Ms Mokaya was not terminated on account of her pregnancy but because the firm could no longer afford to pay her and other employees due to financial constraints.

He told the court that the firm closed its Mombasa branch in February 2016 and laid off three employees due to the financial crunch. 

Nine employees were later laid off due to these financial difficulties while one resigned.

But the judge noted that all the financial difficulties discussed by Mr Mpuria occurred in the year 2016 before the firm employed Ms Mokaya. 

"There is no single evidence presented by the firm regarding financial constraints at the time of her termination in the year 2018," said the judge.

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