Automated Summary
Key Facts
The claimant, Emma Carol Wanjiru, was terminated from her employment on 20th September 2007. The court found that her dismissal was unlawful and unfair, based on her pregnancy, and ruled that the respondent (Airworks) was obligated to reassign her to ground duties during her pregnancy and maternity leave. The claimant was awarded USD 4000 for unpaid September 2007 salary and an additional USD 4000 in lieu of one month's notice, as her employment was terminated without notice. The respondent filed an application for review on 30th October 2015, arguing the court incorrectly applied the Employment Act 2007 retroactively to a case governed by the repealed Employment Act Cap 226. The court dismissed the review application with costs, concluding the application lacked merit as it did not address the factual findings that the claimant was not paid for September 2007 and her termination was unlawful.
Issues
- The second issue assessed the merits of the review application, focusing on two key points: (1) whether the claimant was unlawfully dismissed due to pregnancy, and (2) whether the court erred in awarding USD 4000 instead of Kshs 295,200 for September 2007 salary and notice period. The court found no grounds for review on these factual and legal determinations.
- The court determined whether it has jurisdiction to consider an application for review where a notice of appeal has been filed but the appeal itself has not been instituted. This involved analyzing Order 45 Rule 1(b) of the Civil Procedure Rules and Section 80 of the Civil Procedure Act, as well as Rule 32(1) of the Employment and Labour Relations Court (Procedure) Rules 2010. The court concluded that jurisdiction exists in such cases.
Holdings
- The court determined that it has jurisdiction to entertain an application for review even if a notice of appeal has been filed but the actual appeal has not been filed. This conclusion was based on the interpretation of legal provisions and conflicting precedents, with the court adopting the view that a notice of appeal does not equate to an instituted appeal until formal steps are completed.
- The court found the application for review lacked merit. The factual determination that the claimant was unlawfully dismissed due to pregnancy could only be challenged via appeal, not review. The legal error in applying the Employment Act 2007 retroactively was acknowledged but deemed immaterial to the outcome. The award of USD 4000 in lieu of notice was upheld as a factual finding tied to the employment contract.
Remedies
- The court dismissed the application for review and awarded costs to the claimant, as the application lacked merit and no valid grounds for review were established.
- The court awarded costs to the claimant following the dismissal of the respondent's application for review, which failed to meet the required legal standards under the Employment and Labour Relations Court (Procedure) Rules 2010.
Monetary Damages
8000.00
Legal Principles
The court determined that a party may apply for judicial review even after filing a notice of appeal, as the notice of appeal does not bar review unless the formal appeal has been instituted. The application for review was dismissed for lacking merit under Rule 32(1) of the Employment and Labour Relations Court (Procedure) Rules 2010, which requires grounds such as new evidence, procedural errors, or breaches of law.
Precedent Name
- Exparte Applicant Surgipharm Ltd Vs the Anti-Counterfeit Agency & 2 Others
- The Chairman Board of Governors Highway Secondary School Vs William Mmosi Moi
- Kisya Vs Attorney General
- Yani Haryanto Vs E.D F. man (sugar) Limited
- Orero Vs Seko
Cited Statute
- Civil Procedure Act cap 21 laws of Kenya
- Employment Act cap 226 of the Laws of Kenya (repealed)
- Employment Act No 11 of 2007
Judge Name
Mathews N. Nduma
Passage Text
- The respondent realizing that the claimant was pregnant and could not secure a pilot licence for the period of advanced pregnancy simply abandoned her to her own devices. The claimant lost her job for an unlawful and unfair reason being her pregnancy.
- Therefore despite the lodging of a notice of appeal the court has jurisdiction to entertain an application for review. ....An appeal is not instituted in the Court 1o Appeal until the record of appeal is lodged in its registry, fees paid and security lodged as provided in rule 58 and the inclusion of a memorandum of appeal
- Whereas it is correct that the court erroneously referred to the provisions of the Employment Act, 2007 in paragraphs 60 to 62 at this point, the court had already made factual findings. It was wrong for the respondent to terminate the employment of the claimant on the basis of her pregnancy.