Authored By: Ahmad Abdulrahim Parpia
Strathmore University
Case Name: LC v Sotik Tea Company Limited [2022] KEELRC 563 (KLR)
Court: Employment and Labour Relations Court at Kericho
Date: 10 March 2022
Citation: [2022] KEELRC 563 (KLR)
Parties Involved:
- Petitioner: Lucy Chepkemoi
- Respondent: Sotik Tea Company Limited
Nature of the Case: This was majorly an employment matter, but it also set aside some constitutional and human rights values that must be upheld in employment
Procedural History: The Petitioner, as a member of the National Council of Persons living with disability (NCPLWD), presented the Letter of notice of intended termination of employment on medical grounds to the NCPLWD, which in turn protested the intended termination through several letters addressed to the Respondents. Nevertheless, the Respondents terminated the employment, a result of which the petitioner filed the suit.
Facts of the Case:
Ms. Lucy Chepkemoi was employed as a secretary at the Sotik Tea Company Limited from 5th April 2006. She conducted all the duties required of her till 2014, when she fell ill and was diagnosed with eye complications. Even though she received treatment from many doctors, in 2016, unfortunately she lost her eyesight. In 2017, her services were terminated on medical grounds due to the visual impairment she suffered. By then, she had registered with the NCPWD and had even enrolled herself at the Kenya Institute of Special Education in 2017 to learn how to cope with her visual impairment.. While she was undergoing treatment for her visual impairment, the Employer continued paying her salary and even catered for her treatment.
Legal Issues
- Whether the termination of the Petitioner on the grounds her visual impairment violated her rights to non-discrimination, fair labour practices, and fair administrative action
- Whether termination of employment on the basis of the employee’s visual impairment could be considered reasonable and fair
- Whether the employer catering for her treatment and continuing to pay her a salary absolves it for liability of indirect discrimination
- Whether due process was followed in terminating the employment
Arguments
Petitioner’s Arguments:
The plaintiff contended that her constitutional rights to non-discrimination, her right to fair labour practices and fair administrative action (contrary to Articles 27, 41 and 47 of the Constitution of Kenya, respectively) had been violated through the termination of her employment. She also argued that the employer should provided her with reasonable accommodation to enable her to continue working instead of dismissing her from work.
Respondent’s Arguments:
The Respondent argued that it had already provided reasonable accommodation such as paying for the costs of her treatment, costs of training, and had even given her a fully paid sick-leave beyond the 7-day sick leave entitled under the Employment Act. The Respondent also submitted to the Court that the plaintiff had failed to provide the Court with any medical report showing that her visual impairment would not hinder the performance of her duties as a secretary of the firm. Additionally, they argued that she had also not proven to the court that she could use braille or other assistive technologies to allow her to carry out her duties without any difficulties.
They continued to inform the Court that at some point they tried to grant her other duties in the firm, but she seemed to be in danger of work-related injuries, with her accidentally falling down once due to her visual impairment. An accident that resulted in the Respondent allowing her a long sick-leave of 187 days with full pay. According to the Respondent, the petitioner would no longer be able to perform her duties, and in addition to the nature of the work carried out by the Respondent, there was ever-present danger that the petitioner might be the unfortunate victim of a workplace accident.
Relevant Laws:
Constitution of Kenya, 2010
Employment Act, 2007
Fair Administrative Action Act, 2015
Persons With Disabilities Act (now repealed), 2003
Universal Declaration of Human Rights, 1948
Court’s Analysis
The Court considered the laws relating to termination of employment, as stipulated under Section 45 of the Employment Act. This provision renders the termination of employment unfair if the employer is unable to prove that the reason for termination is related to the employee’s conduct, capacity or compatibility, or that the termination based on the operational requirements of the employer.
In the case, the learned judge opined his belief that disability is not an inability, in finding that the disability of the Petitioner, in and of itself, could not amount to an inability to perform her duties. Therefore, what is required, in terms of the burden and standard of proof, is for the employer, not only to cite the disability as a reason for termination, but to prove that indeed the employee lacks the capacity to perform his/her duties. In this case, since the petitioner demonstrated that she had put in an effort to learn braille and use white cane, the burden then shifted to the employer to prove that it in turn invested in assistive technologies to be able to aid her perform her duties to the best of her abilities. This obligation would be to the extent that the employer would reasonably be expected to invest in such obligations. As a result, the Court found the termination to be substantively unfair.
On the issue of procedural fairness of the termination, the Court considered Sections 41 and 42 of the Employment Act which mandates that prior to the termination of an employee, the employee ought to have an opportunity to be heard and have a representative present during the termination hearing. The Court found this process to have been duly followed and as such found the termination to be procedurally fair.
The Court then moved on to the issue on whether the rights of the Petitioner had been violated by virtue of the termination. The Court found the termination to be discriminatory contrary to Article 27 of the Constitution of Kenya 2010, section 5 of the Employment Act and section 15 of the then PWD Act, since the Respondents had terminated the employment on medical grounds, while not investing in any assistive technologies that would allow the Petitioner to conduct her daily tasks. The Court also found a violation of the employee’s right to fair labour practices and fair administrative action.
Finally, on the issue on whether the Respondents had absolved themselves from any liability, through the payment of the Petitioner’s treatment fees, and fully paid sick-leave in excess of the statutory requirements, the Court was of the opinion that such efforts are immaterial. What should count are the efforts that the Respondent should have taken towards accommodating the Petitioner to her facilitate the performance of her duties with her ailment.
Decision
The Court found that the Respondent had failed to demonstrate that the petitioner lacked the capacity to perform her duties as the factory secretary, and that even though she had learnt braille and the use of white cane, the Respondent had not provided her with assistive technologies to further facilitate the performance of her duties. Had the Respondent worked towards ensuring that certain assistive infrastructure would be installed at the workplace for the benefit of the Petitioner, it would have absolved itself from any liability. As a result, the Court found the termination on medical grounds to be substantively unfair, as well as discriminatory. As such, the Court awarded the Petitioner Ksh. 2,156,000 as general damages.
Significance
At the time of this case, Kenya was still applying the Persons with Disabilities Act of 2003. However, after this decision, as well as several others where PWDs were not taken due care of in their employment, Parliament decided to enact the new PWD Act, which was assented to by the President and subsequently passed into law on the 8th of May 2025. The new Act places more obligations on employers in relation to treating PWDs within their workforce, and not to discriminate, even when recruiting them. Such provisions allow the Country to move in the forward direction in terms of the promotion of human rights, in terms of inclusivity of all, regardless of the decease a person may be inflicted with.
Conclusion
This case emphasized the obligations of employers in relation to members of their staff who qualify as PWDs. Employers are to ensure that they implement assistive and adaptive infrastructure to aid employees conduct the duties required of them. In the instant case, a woman’s employment was terminated on medical grounds for the reason that she no longer had the capacity to work at the Respondent’s factory. The Court stipulated that an employer is still required to ensure that assistive technologies are set in motion, with the proper training, to allow PWDs to continue their tasks. Even though they might have contributed towards the treatment of the employee, that in and of itself, does not absolve them from performing their obligations to make the workplace more accessible for their own employees.
Cases cited by the Court
- Chitavi, Anthony Mkala v Malindi Water & Sewerage Company Ltd (Cause 64 of 2012 (Originally Nairobi Cause 754(N) of 2009); [2013] eKLR)
- Gichuru v Package Insurance Brokers Ltd (Petition 36 of 2019; [2021] KESC 12 (KLR))
- Masinde, Joy Brenda v Law Society of Kenya & Attorney General (Petition 54 of 2015; [2015] KEHC 507 (KLR))
- Muema, Juliet Mwongeli v Smollan Kenya Limited (Cause 104 of 2017; [2019] KEELRC 281 (KLR))
- Sang v Attorney General (Cause 2408 of 2012; [2014] KEELRC 752 (KLR))
International instruments cited by the Court
- Universal Declaration of Human Rights (UDHR), 1948
