State loses first round of paternity leave lawsuit

In their objection against the petition, the AG and the ministry stated that Dr Gikenyi had no capacity to sue and that the petition had been lodged in the wrong forum since it is challenging constitutionality of a provision of the law.

“The petitioner is a stranger, busy body and lacks locus standi to file and prosecute this petition against the respondents (AG and the ministry). He has no sufficient interest in law to commence these proceedings,” they said in the preliminary objection.

They explained that Dr Gikenyi had no capacity to file the petition because under section 12(2) of the Employment and Labour Relations Act, he was neither an employee, an employer, a trade union nor was he an employers’ organisation.

In addition, that the petitioner was not a federation, the registrar of trade unions, the Cabinet secretary nor any office established under any written law for such purpose. 

However, Justice Stella Rutto declined the request and said the objection did not meet the threshold of law. The judge explained that the preliminary objection was not on pure law as required.

“The issues touching on the capacity of the petitioner in terms of section 12 (2) of the Act, is a question of fact that can only be determined upon examination of facts before the court. Evidently, and going by the petitioner’s replying affidavit, this is a contested fact,” said Justice Rutto.

The gist of the petition is the constitutionality of Section 29 of the Employment Act, 2007, which makes provision for maternity leave. 

The legal provision allows women to take a paid leave of up to three months for maternity. The woman is only required to give a seven-day notice to the employer.

The petitioner says the law is only clear on maternity leave for women but is ambiguous for men wishing to go on paternity leave.

He wants the court to extend the paternity leave to three months, same as maternity leave.
According to him, the law assumes that a father has no role or has a very limited role in a child’s development, an assumption he notes has no scientific, moral or societal proof.

He wants court to declare the legal provision unconstitutional, null and void for being discriminative by giving women longer parental leave than men.

Dr Gikenyi adds that the legal provision violates the Constitution, which prohibits any form of discrimination based on sex, colour, language, religion, nationality, ethnic, pregnancy or other opinions.

On claims that the petition does not disclose a course of action or dispute, the judge said that could only be determined upon the court examining the facts of the case alongside the evidentiary material on record.

“The court cannot make a conclusive finding from the face of the preliminary objection as to whether the petition has disclosed a course of action. The preliminary objection as couched, is not confined to issues of law. It does not meet the legal threshold of a preliminary objection,” said Justice Rutto.

Regarding a claim that the petition concerned issues reserved for the High Court Constitutional division and that the Labour Relations Court does not have authority to handle it, the judge stated that her court has the powers address the case.

“Given the fact that the dispute has its basis within the context of an employment relationship, it is my view that this court is vested with the primary jurisdiction to determine the dispute, hence it can determine any ancillary matters arising, including the constitutionality of a provision concerning employee rights,” said Justice Rutto.

Finding that the court has authority to determine the petition, the judge noted that maternity leave is a right granted to female employees to take time off work following child birth. 

This is one of the rights granted to employees under the Employment Act, she said. As such, it is a right that accrues within an employment relationship.

“In my view, the drafters of the Employment and Labour Relations Court Act, did not intend to limit the (Labour and Relations) court’s powers to matters arising within an employment relationship or put in another way, where there is an employer-employee contract.  I believe that it is for this reason that the rider “… and for connected purposes” was incorporated into the preamble of the Act,” said Justice Rutto. 

In the petition, Dr Gikenyi argues that the disputed law has also disadvantaged women at their places of work since some employers decide to use the long period of maternity leave to replace them.
According to him, some employers choose to hire more men compared to women who have a longer parental leave, hence making them less productive to the company.