https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1521

Githinji v St Andrew’s School-Turi (Cause E084 of 2024) [2026] KEELRC 1521 (KLR) (4 June 2026) (Judgment) Neutral citation: [2026] KEELRC 1521 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nakuru Cause E084 of 2024 AN Mwaure, J June 4, 2026 Between John Maina Githinji Claimant and St Andrew’S School-Turi Respondent Judgment Introduction 1.The Claimant commenced this suit via Memorandum of Claim dated 3rd October 2024, seeking the following orders:a.A declaration that the termination of employment was discriminative, malicious, unlawful, unfair, unprocedural and a fundamental violation of the rights of the Claimant.b.An order be issued directing the Respondent to pay the Claimant as follows:i.One month pay in lieu of notice - Kshs.110,007.70/=ii.Compensation for unfair Termination gross pay x 12 months Kshs. 110,007.70 x 12 - Kshs.1,320,092.40/=iii.Service paySalary for one day x 15 days no. of years worked Kshs.110,007.70/30 days x 15 x 26 days3,666.92 x15x 26 - Kshs.1,430,098.80Total Kshs.2,860, 198.90c.A certificate of service as per section 51 of the Employment Act.d.Costs and interest of this suit from the filing of this suit till payment in full. Claimant’s case 2.The Claimant avers that he was an employee in the Respondent’s institution from 1997 until his termination in September 2023. He began as a workshop attendant and rose through various ranks, becoming a Supervisor at the Preparatory School around 2008 and later transferring to the Senior School in 2013. Despite repeated requests, he was never issued a copy of his employment contract. 3.As Senior School Supervisor, the Claimant avers that he oversaw approximately 37 staff members, 21 women and 16 men, ensuring proper cleaning and general maintenance of assigned areas. 4.The Claimant avers that he performed his duties diligently, without fear or favour, and regularly communicated work plans to management via school email for approval. The Claimant further avers that staff work allocations were rotational weekly and that he collaborated closely with the school Matron. 5.The Claimant states that female staff under his supervision were required to clean between 7:00 a.m. and 8:00 a.m. before proceeding to the boarding section. He explains that his duties demanded strict supervision to ensure work met required standards, which caused dissatisfaction among some cleaners. 6.On 4th July 2023, the Claimant avers that he received a suspension/Show Cause letter alleging sexual harassment complaints from the school suggestion box. He was suspended for fourteen days and barred from visiting the workplace unless summoned. 7.Subsequently, on 28th August 2023, the Claimant avers that he was summarily dismissed after a disciplinary hearing, with the Respondent citing allegations of sexual offences, mistreatment, and stalking of one MW. 8.The Claimant contends that the termination was biased, lacked tangible evidence, and failed to meet the legal threshold for sexual harassment claims. He therefore avers that the summary dismissal was unlawful, unprocedural, and unjustified. 9.The Claimant contends that due to the unfair procedure and substandard conduct of the Committee during the disciplinary hearing, he suffered emotional and psychological distress and seeks compensation. 10.The Claimant avers that the Respondent failed to issue a termination notice or pay one month’s salary in lieu of notice, and unfairly dismissed him without observing the principles of natural justice and fairness. The termination was allegedly based on unproven allegations, and the Respondent further failed to pay twelve months’ wages for loss of employment, issue a certificate of service, or remit terminal benefits as required under the Employment Act. 11.The Claimant avers that the unlawful and premature termination caused him physical, emotional, and psychological torture, thereby infringing his constitutional rights. Respondent’s reply to the memorandum of claim 12.In opposition, the Respondent filed a reply to the Memorandum of Claim dated 16th January 2025. 13.The Respondent, through the law firm of M/s Mukite Musangi & Company Advocates, traverses the Claimant’s Memorandum of Claim seriatim, denying all allegations of unfair termination and asserting that the dismissal was lawful, fair, and procedurally sound. 14.The Respondent admitted that the Claimant was employed on 1st January 1997 and summarily dismissed on 28th August 2023, but the Respondent emphasizes that the dismissal followed an elaborate disciplinary process. 15.The Respondent avers that numerous complaints of sexual harassment were lodged against the Claimant through the school’s suggestion box, prompting the engagement of the Agricultural Employers Association (AEA) to conduct independent investigations. The investigators interviewed victims, witnesses, and the Claimant himself, and ultimately concluded that allegations of sexual harassment, assault, and abuse, including acts amounting to rape, were substantiated, describing the Claimant as a sexual predator. 16.Consequently, the Respondent avers that it issued a show cause letter dated 28th July 2023, invited the Claimant to a disciplinary hearing on 4th August 2023, and ensured compliance with statutory requirements by allowing him to be accompanied by colleagues of his choice. At the hearing, charges were read, complainants testified, and the Claimant cross‑examined them. The disciplinary committee, after deliberation, found the allegations proved and issued a summary dismissal letter on 28th August 2023. The Claimant’s appeal was heard on 12th September 2023 but was dismissed, and the decision was communicated on 19th September 2023. 17.The Respondent therefore contends that the dismissal was justified and procedurally compliant, and that the Claimant’s assertions of unfair termination are misrepresentations. It further argues that the claim for severance pay is legally untenable, denies receipt of any demand letter or notice of intention to sue, and raises a preliminary objection on jurisdiction, citing the pecuniary nature of the reliefs sought. 18.The Respondent prays that the entire claim be dismissed or struck out with costs. Claimant’s evidence in court 19.CW1, John Maina Githinji, the Claimant, adopted his written statement dated 3rd October 2024 together with his list of documents dated even date as his evidence in chief. 20.CW1 testified that he did not make MW’s life difficult for refusing to be his girlfriend and denied allegations of rape and harassment. He stated that his defence was captured in the AEA investigation report on page 14, which nevertheless, recommended disciplinary action and summary dismissal. He confirmed receiving a show cause letter dated 13th July 2023 and another dated 28th July 202, both citing sexual‑harassment allegations, followed by an invitation dated 2nd August 2023 to attend a disciplinary hearing on 4th August 2023, where he was advised to bring witnesses. 21.CW1 stated that he attended the hearing with Tom Gatheri and Teresa Nyakeri, during which Monica Odhiambo and Mary Wambui gave evidence against him, including allegations of rape and stalking, which he denied. He claimed that the Respondent’s minutes did not record witness statements, that he defended himself, and that allegations of bribery and sexual assault of other women were false. He emphasised that no medical evidence was produced, denied breaking MW’s marriage, and reiterated that he did not rape her. 22.In cross‑examination, CW1 confirmed that his summary dismissal letter dated 28th August 2023 accused him of making sexual advances toward MW, whom he had supervised since 2013. He stated that investigators informed him of the charges during their inquiry. He added that his witnesses, Tom Gatheri, Teresia Nyakeri, Loice Muriithi, Joyce Mumbi, Eunice Opicha, and William Kimani were aware of MW’s complaints, including text messages asking him to stop bothering her, but their evidence was not fully considered. 23.CW1 stated that the disciplinary proceedings ran between July and August 2023, during which MW accused him of destroying her marriage. He maintained that he had only issued her verbal warnings for poor performance and reported this to Human Resource. He claimed he did not receive a fair hearing, noting that an email dated 4th August 2023 announced his dismissal before the formal termination letter of 28th August 2023. He appealed by a letter dated 4th September 2023, but despite calling witnesses, the appeal panel upheld his dismissal. He confirmed receiving pension benefits under NSSF but sought service pay of Kshs. 1,430,000/=. He reiterated that he did not rape MW in 2013. 24.In re-examination, CW1 stated that the responses attributed to his witnesses, Tom Gatheri and Teresia Nyakeri, in the minutes were biased in favour of the school. He explained that they did not attend court out of fear of losing their jobs. He clarified that he did not know William as a colleague and denied any involvement in MW’s divorce. He further stated that he wrote a letter after lodging his appeal and maintained that he was not paid his pension. CW1 reiterated that MW falsely alleged rape without producing supporting documents, noting that CCTV cameras installed in the buildings would have shown if they were together. 25.CW2, WKM, adopted his witness statement dated 12th June 2025 as his evidence in chief. 26.CW2 testified that the breakdown of his marriage was occasioned solely by his wife, MW, and not by CW1. He stated that during the period when CW1 was undergoing disciplinary proceedings, he had changed his telephone numbers and was therefore unreachable to testify at the hearing. He further clarified that CW1 was not in any way involved in the dissolution of his marriage with MW, nor did the Claimant harass his former wife. CW2 confirmed that he is no longer married to MW. 27.In cross-examination, CW2 stated that he was married to MW for 8 years and parted ways in 2020. He stated that they were married in 2012. He stated that he knew CW1 when he used to get work at the Respondent. He stated that he changed his telephone number after he parted ways with his former wife. He stated that he knew Ben Nyandayo at the Respondent’s institution, but would only see him therein. He stated that he was not his friend. He stated that he had no complaints against Ben Nyandoya. He reiterated that he parted ways with his wife because of a lack of trust, as she had an affair with Ben Nyandayo. 28.In re-examination, CW1 stated that he signed his statement, and he wrote that he suspected Nyandoya had an affair with his former wife, but he never met him. Respondent’s evidence in court 29.RW1, Margaret Mbuthia, Human Resources officer with the Agricultural Employers Association, prepared a report for investigation that was done at the Respondent’s institution and wishes to produce it as Exhibit 1 as her evidence in chief. 30.RW1 testified that the Agricultural Employers Association (AEA) received complaints of sexual harassment at the Respondent’s school and undertook investigations into the matter. She stated that the investigators interviewed ten witnesses, eight of whom identified the Claimant either as a direct perpetrator or as implicated in incidents of sexual harassment. Among the witnesses was MW, who was initially reluctant to come forward but later disclosed that she had been a victim of sexual harassment by the Claimant. RW1 recounted that MW broke down in tears during the interview, alleging that the Claimant had forced himself upon her and that his conduct contributed to the breakdown of her marriage. 31.RW1 further testified that other female employees, namely Monica and Judy, also reported being victims of sexual harassment. Monica stated that she was transferred to the Preparatory School after resisting the Claimant’s advances, while Judy’s employment was not confirmed owing to her alleged relationship with the Claimant. MW clarified that she was never in a consensual relationship with the Claimant but had been raped by him. 32.RW1 added that she personally interviewed the Claimant in Nakuru using a structured set of questions, during which he denied all allegations, including those relating to the stalking of MW. Following the investigations, she stated that the AEA recommended that the Respondent subject the Claimant to a disciplinary process culminating in summary dismissal. RW1 emphasized that the investigators believed MW’s account, noting her emotional demeanour and that she had ulcers and was taking medicine for such, which reinforced the credibility of her testimony. 33.In cross-examination, RW1 testified that MW did not herself volunteer her name as a victim of sexual harassment; rather, her name was anonymously fronted by a third party. She clarified that the cause of MW’s ulcers was not medically indicated, though MW was given space to express herself beyond the structured “yes or no” questions posed. RW1 confirmed that MW’s statement was annexed to the report submitted to the school. She further stated that other male employees, approximately five in number, were also accused of sexual harassment, but the recommendation for summary dismissal was directed solely at the Claimant due to the gravity of the allegations against him. RW1 added that there were allegations of the Claimant impregnating four other women, though the investigators did not manage to interview them and could not verify the pregnancies. Judy, another witness, stated that she was never promoted to supervisor nor recommended for promotion. RW1 emphasized that issues of staff management were left to the school administration, and salary tabulations were verified only by the school accountant. 34.RW1 further testified that MW’s estranged husband was not interviewed during the investigations. She stated that MW alleged she was raped in 2020, while another complainant, M, alleged rape in 2013. RW1 clarified that she was not aware of any consensual relationship between MW and the Claimant, nor of any desire by MW to pursue such a relationship. MW alleged that during the assault, she requested the Claimant not to ejaculate inside her. RW1 confirmed that MW did not state she sought medical attention after the alleged rape, and she was not aware that MW had four children by four other men. RW1 explained that the report noted these matters as allegations and recommended that the Claimant be subjected to a fair disciplinary hearing. She concluded that the final decision to summarily dismiss the Claimant was made by the school. 35.In re-examination, RW1 clarified that the investigators administered a structured set of questions to the Claimant, affording him an opportunity to explain himself, but he chose to respond in simple “yes” or “no” answers. She confirmed that the Claimant was represented by counsel during the process. RW1 further stated that MW’s statement was annexed to the investigation report and was formally received in June 2023. According to the statement, MW joined the school in 2012 and alleged that she was raped by the Claimant in 2013. RW1 emphasized that, based on the findings, the investigators recommended summary dismissal of both the Claimant and another employee, James Achari, following the disciplinary process. 36.RW2, MW, adopted her witness statement dated 9th June 2025 as her evidence‑in‑chief.She testified that in 2013, while working at the school, CW1 raped her in the music centre toilets. She stated that she was overpowered during the incident and had no opportunity to escape, adding that there were no CCTV cameras in the area to capture the occurrence. 37.RW2 further testified that CW1 persistently stalked her, including at her residence. She recounted an incident where she hid under a sink and was later found by a colleague, Joyce, while the Claimant was still present. She denied allegations of poor work performance and emphasized that she remains employed at the school. She also denied ever having had a relationship with the CW1 or with Mr. Ndandoya, clarifying that the latter was merely a colleague and member of the school’s union. She added that the father of her child had assaulted her and falsely accused her of having a child with the Claimant, an allegation she firmly denied. 38.In cross‑examination, RW2 reiterated that she had no affair with Mr. Ndandoya, though she confirmed that he worked at the school. She maintained that the Claimant raped her, asserting that he was physically stronger and that she did not consent to the act nor seek medical treatment thereafter. She denied any romantic interest in CW1 and stated that he openly pursued her, but she did not call any witnesses. She added that she harboured no bitterness toward the Claimant. 39.RW2 testified that CW1 used to follow her to her house, and although a colleague witnessed this, and she did not call her as a witness. She stated that CW1 owned a shamba near her residence and that his conduct contributed to the breakdown of her marriage. She clarified that she did not leave her husband voluntarily and initially did not report the rape. She later reported the harassment to the matron and subsequently to the Human Resource Department. She explained that recruitment and hiring fell under the Human Resource office, while CW1 served as a supervisor. Her formal report of harassment was made around 2022. 40.In re‑examination, RW2 confirmed that she had reported the harassment to the matron, who escalated the matter to the Human Resource Department. She added that both Eunice and Loice were aware of the incident. 41.RW3, Maurine Arwa, the Respondent’s Human Resource Manager, also gave her sworn oral testimony and adopted her witness statement dated 19th February, 2025, as her evidence‑in‑chief. She also relied on the Respondent’s list of documents dated 20th February, 2025, comprising exhibits 1 to 13. 42.It was her testimony, RW3 stated that she has been employed by the Respondent since 1st October, 2024, as the Human Resource Manager. She stated that she was not in employment at the time CW1 was dismissed and only became acquainted with the matter upon assuming office and reviewing the relevant records. 43.In cross-examination, RW3 stated that the Respondent maintains employee files documenting all matters relating to an employee’s service, including disciplinary proceedings, and that her testimony was based on the contents of CW1’s official file. 44.RW4, Joan Arang’a, the Respondent’s Legal Counsel, also gave sworn oral testimony in court and adopted her witness statement dated 9th June, 2025. She testified that she was a member of the disciplinary committee and confirmed that CW1 was dismissed following allegations of sexual harassment. She stated that the Respondent, being a member of AEA, engaged the Association to conduct independent investigations into the claims. Following the investigations, CW1 was served with a notice to show cause and subsequently invited to a disciplinary hearing. 45.She further stated that the disciplinary committee comprised the Finance Director, the former Human Resource Director, and herself, though the proceedings continued in her absence. During the hearing, three witnesses gave evidence, including MW, who recounted incidents of sexual harassment and rape in the music room. MW testified that she had reported the matter to the Human Resources office, and her account was corroborated through separate interviews with three matrons. She added that CW‑1 was afforded the opportunity to cross‑examine MW and was accompanied by two colleagues, Teresia Nyakeri and Tom Gatheri. CW‑1, in his defence, alleged that MW was a poor performer and had fabricated the complaint against him. 46.In cross-examination, RW‑4 confirmed that MW was harassed in 2013 but only reported formally in 2023. She stated that Monica and Judy’s accounts corroborated with MW’s testimony. She stated that MW did not produce the message referred to by CW1 and reported her tribulations to the Human Resource Manager, not the Director. RW4 added that she was unaware of any colleague named Nyandoro. RW4 noted that MW’s former husband was not called as a witness, though she knew MW’s divorce was linked to harassment. MW did not report the alleged rape immediately and produced no medical evidence given the lapse of ten years. RW‑4 confirmed MW’s account of hiding under a sink but was unsure if a witness observed it. She added that CW‑1 never raised issues of poor performance, no records existed to that effect, and the investigation report consistently referred to the allegations as “alleged.” 47.In re‑examination, RW4 stated that CW1 had representatives present during the disciplinary hearing, though they were not called as witnesses. She reiterated that MW’s former husband did not contest the paternity of his child. RW4 added that CW‑1 was accused of stalking MW to her home and admitted knowing where she lived, as it was near his plot. She clarified that she joined the Respondent after the former Human Resource Director had left. She confirmed that three witnesses Monica, Judy, and MW were called, and CW1 did not cross‑examine them, as the committee considered MW’s testimony sufficient, with the other two witnesses only corroborating her account. Claimant’s submissions 48.The Claimant submitted that the Respondent failed to establish a valid and justifiable reason for dismissal, and that the disciplinary process was procedurally unfair. The dismissal letter cited allegations of aggravated sexual offence, mistreatment, and stalking of MW, yet the Claimant’s witnesses admitted that corroborative evidence was lacking, crucial witnesses were not availed, and the disciplinary minutes were paraphrased rather than verbatim. The investigator’s report was replete with hearsay, unverified allegations, and repeated use of “it is alleged,”without substantiation through medical records, birth notifications, or salary records. RW4 confirmed that the committee relied solely on MW’s emotional testimony, disregarding other alleged victims and failing to accord the Claimant a fair opportunity to cross examine witnesses. He further says the School Director prejudiced the appeal process by announcing dismissal before the appeal was heard, thereby negating impartiality. 49.The Claimant relied on Sections 43(1) and 45(2) of the Employment Act, which impose on the employer the burden to prove valid and fair reasons for termination, and section 41 of the Employment Act, which requires a fair hearing before dismissal. The Claimant relied on Manyara v Phoenix Aviation Limited [2025] KE ELRC 33 (KLR), where the court held that failure to substantiate allegations of sexual harassment and reliance on an untested investigation report rendered termination unjustified. The Claimant also relied on Zephania O. Nyambane & Another v Nakuru Water & Sanitation Services Company Limited [2013] KEELRC 868 (KLR), where the court held that fair hearing entails sufficient time, full understanding of charges, access to documentation, calling and cross-examining witnesses, and consideration of the employee’s explanation. 50.The Claimant submitted that he was denied a fair hearing at both the disciplinary and appeals stages. He contends that the minutes of the hearings were distorted, paraphrased, and omitted crucial evidence supporting his innocence. The Respondent allegedly failed to provide the Claimant with the correct and complete minutes or documents relied upon in reaching the conclusion of guilt. The Claimant relied on Howard Andrew Nyerere v Kenya Airways Limited [2014] KEELRC 902 (KLR), the court emphasized that employees should be allowed to read and sign minutes to confirm their accuracy. Reliance is also placed on Kenneth Nyaga Mwige v Austin Kiguta & 2 others [2015] KECA 334 (KLR), clarifying that mere admission of documents into evidence does not prove their credibility or reliability until the court evaluates their relevance and veracity. Lastly, it is noted that witnesses mentioned during the initial hearing were not availed by the employer, further undermining procedural fairness. 51.The Claimant argued that both disciplinary hearings were biased and conducted with a predetermined intention to dismiss him for reasons not stated in the termination letter. He further contends that the Respondent failed to provide its sexual harassment policy to employees, contrary to Section 6 of the Employment Act, as emphasized in Mbugua v Resort [2024] KEELRC 1950 (KLR), which requires employers with over twenty employees to have a written policy. Although the Respondent attached excerpts of the policy report, the Claimant was not given the full document, and witnesses did not confirm its dissemination. The Claimant therefore urged the court to find that the dismissal procedure was improper and unfair. 52.On compensation, the Claimant submitted that he is entitled to one month’s notice pay of Kshs.110,007.70/= with accordance with section 35 of the Employment Act. On gratuity, the Claimant relied on Bamburi Cement Ltd v Farid Aboud Mohammed [2016] KECA 525 (KLR), it explains that gratuity is a payment in appreciation of service, typically governed by contracts or collective agreements. As a member of COTU, the Claimant is entitled to 15 days’ pay per year of service, totalling to Kshs.1,430,098.80/= for 26 years. Under Section 49(1)(c) of the Employment Act, the Claimant seeks compensation for unfair dismissal, emphasizing his long, clean record and involuntary termination. He also prays for a certificate of Service under section 51 of the Employment Act, referencing Transport Workers Union Kenya v African Safari Diani Adventure [2013] KEELRC 937 (KLR), and requests that costs of the suit be awarded to him, as per the principle that costs follow the event. Respondent’s submissions 53.The Respondent submitted that the dismissal of the Claimant was lawful and justified under sections 41, 43 and 45 of the Employment Act, having been founded on credible allegations of sexual harassment corroborated by multiple witnesses. The Respondent argued that the employer discharged its burden under Section 43 of the Employment Act by demonstrating valid reasons for termination, consistent with the test of reasonableness outlined in Kombo v Riley Falcon Security Services Limited [2023] KEELRC 2119 (KLR) where the court cited the case of Charles Musungu Odana v Kenya Ports Authority [2019] eKLR, where the court stated as follows:“It is now clear that the burden placed on an employer by section 43 of the Employment Acct is to establish a valid reason that would cause a reasonable employer to terminate employment. 54.In Reuben Ikatwa & 7 others v Commanding Office British Army Training Unit Kenya & Another [2017] eKLR it was held that:“In adjudicating on the reasonableness of the employer’s conduct, an employment tribunal must not simply substitute its own views for those of the employer and decide whether it would have dismissed on those facts, it must make a wider inquiry to determine whether a reasonable employer could have decided to dismiss on those facts…” 55.The Respondent contended that the Claimant’s dismissal was based on credible findings of sexual harassment against a junior employee, MW, amounting to gross misconduct. Following multiple complaints, an independent investigation by the AEA identified the Claimant as the principal perpetrator. The Respondent maintains that disciplinary proceedings are individualized; allegations against other employees do not absolve the Claimant, whose conduct was specifically and credibly linked to the acts complained of. 56.The Respondent submitted that the investigations involving ten witnesses eight of whom directly implicated the Claimant established credible evidence of sexual harassment and abuse of authority. Testimonies, particularly that of RW‑2 MW, were consistent and corroborated by circumstantial proof, including the Claimant’s admission of owning land near her residence, supporting stalking allegations. 57.The Respondent argued that workplace investigations require only reasonable belief under sections 43 and 45 of the Employment Act, not criminal‑level proof. Absence of CCTV or electronic evidence is immaterial, as privacy concerns and passage of time explain such gaps. Delay in reporting is attributed to fear of retaliation, consistent with the cases of Mbugua v Resort [2024] KEELRC 1950(KLR) where the court reiterates the case in Margot Rendall Speranza v International Finance Corporation (World Bank Administrative Tribunal No. 97-2) where the Tribunal observed as follows:“The Tribunal appreciates that delay in reporting instances of harassment may be explainable for reasons other than that the victim has welcomed the sexual advances. There may be strong pressures not to make even a well-based complaint, such as fear one will be branded as a troublemaker…. and ultimately perhaps by a fear of retaliation by the harassing party.” 58.In AWK v Bureau Verita Kenya Limited [2025] KEELRC 3622 (KLR) the court cited the case of Heena Bechheta v Dr. Yash Pal Bansal Petition E057 of 2021 further reinforces this, noting that fear of dismissal or adverse consequences often compels victims, especially junior employees to suffer in silence. This reasoning is directly applicable where the Claimant was a senior manager, while RW2 was a junior employee. The Respondent submitted that MW’s silence is characterized as a survival tactic amid threats of professional sabotage, corroborated by similar experiences of other female employees. The Respondent dismisses claims of lacking a sexual‑harassment policy, citing Section 6 f The Employment Act and cases like Too v Weza Care Solutions [2025] KEELRC 3093(KLR) and Limo v Lipton Teas and Infusions Plc [2025] KEELRC, which affirm that absence of policy cannot excuse misconduct.In Osok v Parliamentary Service Commission & Another [2024] KEELRC 582 (KLR) which specifically outlawed bullying and harassment under Section 6 of the Employment Act 2007. 59.In P O v Board of Trustees, A F & 2 Others [2014] KEELRC 623 (KLR) and Ooko & another v SRM & 2 Others [2022] KECA, where the courts defined sexual harassment as any unwelcome sexual advance, request, or behaviour implying preferential treatment or threat of detriment. The Respondent faced multiple consistent complaints against the Claimant, corroborated by witness testimony and investigation findings showing a pattern of misconduct and abuse of authority over junior female employees. The Respondent emphasizes that sexual harassment often occurs privately, making third‑party evidence rare, and that the absence of immediate reporting does not diminish the seriousness or credibility of the claims. The Respondent submitted that the Claimant’s termination was lawful, justified as required under section 43 and 45 of the Employment Act. 60.The Respondent submitted that the procedure in terminating the Claimant was done lawfully in accordance with section 41 of the Employment Act which provide as follows:“Subject to section 42(1), an employer shall, before terminating the employment of an employee, on the grounds of misconduct, poor performance or physical incapacity explain to the employee, in a language the employee understands, the reason for which the employer is considering termination and the employee shall be entitled to have another employee or a shop floor union representative of his choice present during this explanation.Notwithstanding any other provision of this Part, an employer shall, before terminating the employment of an employee or summarily dismissing an employee under section 44(3) or (4) hear and consider any representations which the employee may on the grounds of misconduct or poor performance, and the person, if any, chosen by the employee within subsection (1) make.” 61.The Respondent submitted that upon receipt of multiple complaints of sexual harassment, it did not summarily dismiss the Claimant without inquiry. Investigations were duly conducted by AEA, after which the Claimant was served with a notice to show cause, responded thereto, and was subsequently invited to a disciplinary hearing. At the hearing, the charges were read, the complainant testified, and the Claimant was afforded full opportunity to cross‑examine witnesses and present his defence. 62.The Respondent contended that it complied with the procedural safeguards under Section 41 of the Employment Act. Reliance was placed on Zaphenia O. Nyambane & another v Nakuru Water & Sanitation (supra), where the court outlined the elements of a fair hearing to include adequate opportunity to prepare, the right to understand the charges, and access to relevant documentation. Further reliance was placed on Limo v Lipton Teas and Infusions Plc(Supra), wherein the Court held:“... As earlier observed in this case during the investigations, the Claimant was asked if he was ready to proceed with the hearing and he answered in the affirmative. It would seem as an afterthought to claim now that he was not taken through fair procedure.” 63.The Respondent also relied on Kenya Power & Lighting Company Ltd v Wasike [2017] KECA 446 (KLR), where the Court of Appeal affirmed that disciplinary proceedings require notification of allegations, opportunity to respond, representation of choice, and genuine consideration of the employee’s defence. 64.On the relief sought, the Respondent submitted that the Claimant is entitled to none of them. In light of the foregoing, the Respondent urged this Honourable Court to find that the disciplinary process met the statutory threshold of fairness, that the Claimant’s allegations remain unproven, and consequently to dismiss the claim in its entirety with costs. Analysis and determination 65.The court has considered the pleadings with the rival submissions by both parties; the issues for determination are as follows:a.Whether the Claimant was lawfully terminated in accordance with sections 41, 43 and 45(2) of the Employment Act by the Respondent.b.If (a) above is in the negative, whether the Claimant is entitled to the reliefs sought; andc.Who should bear the costs of the suit. 66.For fair termination to be effected properly, the twin requirements of procedural fairness and substantive justification in accordance with sections 41 and 43 of the Employment Act. In Mary Chemweno Kiptui v Kenya Pipeline Company Limited [2014] KEELRC 905 (KLR) the court held that section 41 of the Employment Act imposes mandatory procedural safeguards, requiring that an employee facing termination be informed of the charges, issued with a notice, and afforded a hearing in the presence of a union representative or a colleague of choice. Failure to comply renders the process unfair and any resulting termination unlawful. Before an employer may terminate, there must be valid reasons relating to misconduct, poor performance, or incapacity, followed by notice, hearing, and consideration of the employee’s defence, with best practice allowing for an internal appeal under section 5(7)(c). Summary dismissal, though permissible under section 44(3) and (4) for serious breaches such as absenteeism, intoxication, negligence, insubordination, or criminal conduct, is subject to stricter standards given its susceptibility to abuse, and the employee must still be accorded a hearing under section 41. Section 43(2) further requires that the reasons for termination be those genuinely believed by the employer at the time of dismissal, and such reasons must be addressed prior to issuing the termination notice and subjected to a hearing; reasons advanced after termination are invalid and defeat the statutory purpose of fairness. 67.In Zephania O. Nyambane & Another v Nakuru Water & Sanitation Services Company Limited (Supra), Ongaya J (as he was then) held that for any cases of alleged misconduct, a notice and a hearing are mandatory as envisaged in section 41 of the Employment Act. 68.Section 47(5) of the Employment Act provides as follows:“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.” 69.Section 6 of the Employment Act provides sexual harassment broadly to include unwelcome sexual requests, threats of preferential or detrimental treatment, sexually explicit language, visual material, or physical conduct that undermines an employee’s dignity, performance, or job satisfaction. Employers with twenty or more employees are mandated to issue a sexual‑harassment policy after consultation, which must include the statutory definition, a guarantee of a harassment‑free workplace, disciplinary measures against offenders, procedures for lodging complaints, and confidentiality safeguards. Importantly, the employer must ensure that this policy is communicated to all employees under its direction. 70.In Unilever Tea Kenya Limited v Kenya Plantation & Agricultural Workers Union [2025] KECA 830 (KLR) where the Court of Appeal held that evidence of sexual harassment between the grievant and one of the female staff members, was corroborated by another staff member. The court held that the grievant’s conduct, including inappropriate touching and sexual advances, amounted to sexual harassment under Section 6 of the Employment Act. 71.In this instant case, the Claimant was employed by the Respondent as a workshop attendant in 1997 and progressively rose through the ranks, attaining the position of Supervisor at the Preparatory School in 2008 before transferring to the Senior School in 2013. Allegations of sexual harassment were subsequently raised involving one MW, who testified that she was raped by the Claimant in the music room and many other incidents of sexual harassment resulting to eventual breakdown of her 72.marriage. Following these allegations, the Respondent engaged the AEA to conduct independent investigations, which confirmed acts of sexual harassment perpetrated by the Claimant. The Claimant was thereafter invited to a disciplinary hearing, afforded the opportunity to cross‑examine witnesses, and present his defence. Upon consideration of the evidence and the investigation report, the Respondent lawfully terminated the Claimant’s employment. 73.The Claimant insinuated during the disciplinary hearing of bias against one of the panellists in the disciplinary panel.The person was the school Director whom he said was involved in communicating the dismissal to him and being in the appeal panel. The court does to quite see how issuing the dismissal letter after the full committee took part in the disciplinary hearing could demonstrate bias to prejudice the Director participating in the appeal.The Claimant during the appeal did not raise any discomfort of the proceedings and the court notes he was also accompanied by two witnesses. 74.Also, the Claimant raised issue of the minutes being written in “reported speech.” Once again, the court sees no proven bias of the minutes merely because they were written in “reported speech.” 75.The court noted the witnesses including MW (the main victim) and Teresia Nyakeri confirmed and corroborated each other’s evidence of sexual harassment. The Claimant interrogated the witnesses and so the court finds he participated well in the disciplinary hearing which the court holds was fair as provided in Section 41 of the Employment Act. 76.Cases of sexual harassment are tricky and are rarely corroborated because of their very nature.The witnesses were junior employees under the supervision of the Claimant and especially MW who was a cleaner and the Claimant was a supervisor at the termination of his employment.The victims are as expected usually unwilling to report incidents of harassment for fear of victimisation.In the case of PHILIP MBUGUA -VS- BAOBAB RESORT CAUSE E096 OF 2022 the court stated in quoting the case of MARGOT RENDALL SPERUNZU -VS- INTERNATIONAL FINANCE CORPORATION DECISION NO 97 - 2- where court stated that victims of sexual harassment frequently delay reporting due to fear of retaliation, damage to professional reputation or concern that they may be branded trouble makers. 77.Such reluctance to speak out in sexual abuse cases is out of fear and is not necessarily consent to the sexual advances.The court is guided by Section 6 of the Employment Act 2007 which states as follows:-“An employee is sexually harassed if the employer of that employee or a representative of that employer or a co-worker―(a)directly or indirectly requests that employee for sexual intercourse, sexual contact or any other form of sexual activity that contains an implied or express―(i)promise of preferential treatment in employment;(ii)threat of detrimental treatment in employment; or(iii)threat about the present or future employment status of the employee; 78.The Respondent needed to have a robust sexual harassment policy and train all the workers on the importance of complying with the same. The sexual policy it seems was there but there must be proactive sensitisation of all the staff about the same. Nevertheless, the staff with or without policy cannot use that as an excuse to harass others and Section 6 of the Employment Act is mandatory against sexual harassment at the place of work. This was affirmed in the case of Limo -vs- Lipton Teas and Infusions Cause 017 of 2023 where court was clear that absence of policy cannot justify acts of harassment at the work place. 79.The court is of the view that the Respondent complied with the mandatory procedural requirements under Section 41 of the Employment Act and established valid reasons for termination within the meaning of Section 43 of the Employment Act. The Claimant failed to discharge the burden of proof under section 47(5) of the Employment Act, read together with sections 107, 108, and 109 of the Evidence Act. It was found that the Claimant abused his supervisory position to sexually harass female junior staff and especially one MW. The court therefore upholds the dismissal by the Respondent. The Respondent however is urged to implement robust sexual‑harassment policy to prevent recurrence of such unfortunate occurrences. 80.In the light of the foregoing, the court finds that the claim lack merit and it is therefore dismissed accordingly. The Respondent is ordered however, to issue the Certificate of Service under Section 51 of the Employment Act to the Claimant. 81.The court in exercise of its inherent discretion orders each party to bear its own costs of the suit.Order accordingly. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAKURU THIS 4TH DAY OF JUNE, 2026.ANNA NGIBUINI MWAUREJUDGEOrderIn view of the declaration of measures restricting Court operations due to the COVID-19 pandemic and in light of the directions issued by His Lordship, the Chief Justice on 15th March 2020 and subsequent directions of 21st April 2020 that judgments and rulings shall be delivered through video conferencing or via email. They have waived compliance with Order 21 Rule 1 of the Civil Procedure Rules, which requires that all judgments and rulings be pronounced in open Court. In permitting this course, this Court has been guided by Article 159(2)(d) of the Constitution which requires the Court to eschew undue technicalities in delivering justice, the right of access to justice guaranteed to every person under Article 48 of the Constitution and the provisions of Section 1B of the Civil Procedure Act (Chapter 21 of the Laws of Kenya) which impose on this Court the duty of the Court, inter alia, to use suitable technology to enhance the overriding objective which is to facilitate just, expeditious, proportionate and affordable resolution of civil disputes.A signed copy will be availed to each party upon payment of Court fees.ANNA NGIBUINI MWAUREJUDGE