[2023] KEELRC 2684 (KLR)

Githura v Safaricom Limited (Cause 2122 of 2017) [2023] KEELRC 2684 (KLR) (27 October 2023) (Judgment)

Neutral citation: [2023] KEELRC 2684 (KLR)

Republic of Kenya

In the Employment and Labour Relations Court at Nairobi

Cause 2122 of 2017

SC Rutto, J

October 27, 2023

Between

Maureen Wangu Githura

Claimant

and

Safaricom Limited

Respondent

Judgment

1. Through a Statement of Claim filed on 19th October 2017, the Claimant avers that she worked for the Respondent on a part-time contract basis for several years until she was offered a permanent position as a Customer Experience Executive vide a letter of appointment dated 20th September 2013. According to the Claimant, she carried out her duties diligently, complied with the terms of her employment and at all times observed professionalism.

2. It is the Claimant’s case that she suffers from repetitive bouts of depression which condition the Respondent was aware of. She avers that she was suspended from duty through a notice dated 7th October 2017 and subsequently subjected to a disciplinary hearing. Thereafter, she was terminated from employment on allegations of sexual harassment. According to the Claimant, she was unfairly targeted because of her sexual orientation and has denied harassing her female colleagues as alleged. The Claimant considers her termination unlawful and in breach of her constitutional right to fair labour practices. Consequently, she seeks the following reliefs against the Respondent:a.A declaration that the Respondent breached the principles of natural justice in the process of terminating the Claimant;b.A declaration that the summary dismissal of the Claimant by the Respondent was unfair and unlawful;c.Payment of twelve months' salary in accordance with Section 49(1) (c) of the Employment Act and based on current salary rate at the time of dismissal Kshs 64,702 x12= total 776,424/=;d.General damages for unlawful and unfair termination;e.Costs of the suit;f.Interest on (c) and (d) above at court rates from the date of filing the suit until payment in full; andg.Any other relief this Honourable Court may deem fit to grant in the circumstances.

3. The Claim was opposed through the Respondent’s Memorandum of Response dated 17th November 2017, in which it avers that the Claimant did not carry out her duties diligently as alleged and instead engaged in instances of insubordination and sexual harassment. The Respondent further avers that the mental health status of the Claimant was only brought to its attention after her termination. In the Respondent’s view, this has been raised in anticipation of this suit as an afterthought. The Respondent further states that it duly complied with the Disciplinary Procedure under its Disciplinary Policy and Code and Staff Manual. The Respondent has further termed the Claim as an attempt to use this Court to extort money hence is frivolous, vexatious and an outright abuse of process. On account of the foregoing, the Respondent has asked the Court to dismiss the Claim with costs.

4. The matter proceeded for hearing on diverse dates, during which both sides called oral evidence.

5. It is worth mentioning that vide an Application dated 14th September 2022, the Claimant’s mother and legal guardian, Jane Wacuka Gathogo, sought to have her name substituted with that of the Claimant, on grounds that she (Claimant) had been adjudged to be a person suffering from a mental disorder as envisaged under Section 2 of the Mental Health Act.

6. On 12th October 2022, the Application was allowed by consent. Subsequently, on 5th December 2022, Ms. Jane Wacuka Gathogo testified on behalf of the Claimant.

Claimant’s Case 7. Ms. Jane Wacuka Gathogo who testified as CW1 adopted the Statement of Claim, the Claimant’s witness statement, the initial list and bundle of documents, the supplementary list and bundle of documents and the Notice of Motion Application dated 14th September 2022 to constitute her evidence in chief.

8. It was the Claimant’s evidence that because of her mental illness, she was unable to report to duty on 9th and 10th September 2016 as she was not in a good state of mind. She communicated the same to Rebecca Bisanju, the team leader, Customer Operations.

9. On 12th September 2016, she was engaged in a one on one coaching session with Rebecca Bisanju and was soon thereafter suspended from duty by the Respondent through a Notice of Suspension from Duty dated 7th October 2016 and effective the same date.

10. The Notice indicated the grounds for the suspension to be allegations of sexual misconduct/harassment against colleagues and insubordination against her line manager.

11. On 7th October 2016, she received a Notification for Disciplinary Hearing. The hearing proceeded on 11th October 2016.

12. According to the Claimant, the disciplinary hearing was unfair and biased as substantial information was kept from her and she only found out about her accuser at the hearing and therefore did not have sufficient time to prepare her defence.

13. That further, the Ethics and Compliance team did not take into account any of the information she provided and was majorly on the side of her accuser.

14. The Claimant’s employment was terminated through a Notice of Summary Dismissal dated 4th November 2016. The grounds for her dismissal were sexual harassment allegations.

15. The Claimant averred that the Notification of Disciplinary Hearing stated that the sexual harassment allegations were made by one female colleague but the Notice of Summary Dismissal stated that the sexual harassment allegations were lodged by several colleagues and not just one. That she was not made aware of the identity of these other female colleagues and therefore could not defend herself against their allegations.

16. She further averred that she was unfairly targeted because of her sexual orientation and that she has never harassed her female colleagues as alleged. She contended the interactions between herself and her female colleague Esther Muthoni Kinyenje, who accused her of sexual harassment were fully consensual.

17. That during the Disciplinary Hearing by the Ethics and Compliance panel, one of the panelists, Esther Kajuju, with reference to her sexual orientation made a comment “no one wants you” hence she avers that she (the panelist) had already made up her mind before the hearing was concluded.

18. The Claimant further stated that the Relationship Manager, Odhiambo Ooko, did not handle her case well because he was aware of her sexual orientation and did not approve of it.

19. That throughout the investigation process, the Respondent did not take into account the fact that she was battling depression and was not in the right state of mind but instead, took advantage of this thus causing her to suffer a severe mental breakdown. She further contended that the false allegations caused her great distress and ridicule in the eyes of her colleagues.

20. The Claimant was dissatisfied with the decision of the Respondent to terminate her employment and lodged an appeal against the said decision via an e-mail dated 18th November 2016.

21. On 20th January 2017, she had a meeting with Bob Collymore regarding her appeal. She told him that her appeal was not handled fairly because of her sexuality and he assured her that he would review the case and get back to her. He instructed her to write to him an email confirming their meeting. She did as advised.

22. On 30th January 2017, the Claimant received an email from the then acting Human Resources Director, Joseph Ogutu requesting her to meet him on 3rd February 2017. She attended the meeting and told him that the Company denied her right to appeal. He assured her, just like Bob Collymore had, that she would get the opportunity to face the appeals panel. This never happened.

23. On 8th February 2017, she suffered a mental breakdown and ran to the Respondent for help since the company was still paying her salary but instead of helping her, they called the police who roughed her up and took her to Mlolongo Police station. She was later released after the police were informed of her mental disorder.

24. The Respondent later emailed her (the Claimant) informing her that the decision to terminate her employment had been upheld and that the decision was final with no further right to appeal. According to the email, the decision was reached on 16th January 2017 but the email was sent to her on 9th February 2017.

25. On 11th February 2017, she was admitted at Chiromo Lane Medical Centre following her mental breakdown and was discharged on 25th February 2017.

26. According to the Claimant, her case was handled negligently and in a discriminatory manner and the allegations against her were completely baseless and untrue.

Respondent’s case 27. The Respondent called oral evidence through Mr. Jackonia Odhiambo Ooko and Mr. Daniel Ndaba who testified as RW1 and RW2 respectively. Mr. Jackonia was the first to go. He identified himself as the Respondent’s Senior Manager-Employee & Labour Relations. He confirmed signing the Certificate Accompanying the Admissibility of the Compact Disc which contained the disciplinary proceedings recording, relevant to the Claimant’s case. He proceeded to produce the said Certificate and the Compact Disk to constitute his evidence in chief.

28. RW1 confirmed that he recorded the disciplinary proceedings which were played in Court in audio form.

29. Mr. Daniel Ndaba, who testified as RW2 adopted his witness statement to constitute his evidence in chief. He further produced the list and bundle of documents filed on behalf of the Respondent as exhibits before Court. He identified himself as the Respondent’s Senior Manager, Litigation.

30. RW2 stated in evidence that the Claimant’s disciplinary hearing was informed by investigations of the Ethics and Compliance team relating to sexual harassment allegations lodged against her by a female colleague at the Customer Care Operations Department.

31. It was alleged that on a number of instances, the Claimant Sexually harassed her female colleagues namely; Esther Muthoni, Jessica Naomi Furaha, Jackie Oduk and Joyce Kagwiria; by her persistent offence and unwelcome behavior/remarks/innuendos including WhatsApp and Facebook messaging which were sexual in nature. Further, her unwanted behavior continued despite several requests by her colleagues to stop thereby causing them grave discomfort.

32. Additionally, statements from several witnesses indicated that the Claimant was in the habit of making unsolicited sexual comments, sending unsolicited sexual-laden facebook and WhatsApp messages and offensive behavior towards her female colleagues, which denotes sexual harassment. Her conduct created fear and uneasiness amongst her colleagues, thus making it difficult for her colleagues to work with her.

33. RW2 further stated that it was alleged that, without leave or lawful cause, the Claimant was absent from the place appointed to perform her duties from 9th to 10th September 2016. It was also alleged that she acted in a manner that was insubordinate towards her manager when she was questioned about her absence.

34. Subsequently, the Claimant was issued with a cautionary note which she rudely declined to acknowledge.

35. According to RW2, during the hearing on 11th October 2016, the Claimant repudiated the allegations and stated as follows:i.She denied having harassed any colleagues;ii.She claimed that she is neither aware of any colleague who has claimed that her behavior was offensive nor warned her to stop any kind of behavior;iii.She believes that sexual harassment allegations were driven by personal vendetta against her following the sexual harassment case she lodged against a male colleague (Joseph Alando) leading to his separation from the company;iv.Believing that Joyce Kagwiria is the one who had anonymously reported her, the Claimant asserted she had not in any way harassed Joyce or any other colleague;v.She however admitted to sending messages to Joyce having misjudged Joyce’s feelings, trusting that Joyce also liked her and would reciprocate her advances.vi.According to her, the messages to Joyce did not amount to sexual harassment and were not offensive in any way. She however stated that she stopped sending these messages after Joyce asked her to stop.vii.She admitted to having romantic feelings for a colleague-Esther Muthoni;viii.She stated that if there was anything she was guilty of, it would be loving Esther Muthoni.ix.The Claimant confessed to sending messages to Esther Muthoni and expressing her feelings for her. She wondered what she had done wrong by simply expressing her feelings for her. She wondered what she had done wrong by simply expressing her romantic feelings towards someone she liked.x.She further admitted to abusing cannabis sativa – a substance popularly known as “weed”. She however claimed that she has control over the substance and can stay over 100 days without smoking it.xi.She claimed to have been attending counseling to seek psychosocial help for her personal issues. She, however, stated that she dropped out of counselling as she found no value in the sessions which according to her, were just empty talks by the counsellors.

36. The following observations were made during the hearing:i.Although the Claimant downplayed and did not outrightly deny all the allegations, witness statements corroborated the allegations made by Esther. Several witness statements confirmed this unwanted behavior of sexual harassment.ii.The Facebook posts and WhatsApp messages that were presented in evidence were not contested by the Claimant. They indicated that she persisted in sending them even after being asked several times by the victims to stop and after being warned severally.iii.The Claimant was aware that her colleagues were uncomfortable with her behavior and the messages she sent to them;iv.The insubordination allegation was not proven.

37. According to RW2, the Claimant’s conduct was found unbecoming and did not depict acceptable Safaricom Limited behaviors and was therefore contrary to the Sexual Harassment Policy of the Respondent. It was therefore recommended that she be summarily dismissed from the company on account of sexual harassment, a gross misconduct under the Employment Act and the Respondent’s Policy.

Submissions 38. On behalf of the Claimant, it was submitted that while undertaking the disciplinary hearing, it was incumbent upon the Respondent to apply appropriate measures, commensurate to her needs under the circumstances while upholding her rights in line with Article 21(3) of the Constitution.

39. It was further submitted that in line with the recommendations of the United Nations and the World Health Organization and with the knowledge of her mental condition, the Court ought to find and hold the Respondent liable and should answer for all or any actions complained of during the team building session levelled against the Claimant, which actions were not satisfactorily proven and which resulted in her unlawful termination.

40. It was further argued on behalf of the Claimant that the action of providing alcoholic drinks during the team building session with the knowledge that she was diagnosed as suffering a mental impairment due to alcohol and substance abuse contributed to any actions complained of and as such, the Respondent ought to be held liable.

41. In further submission, it was stated that the Claimant under the principle of Respondeat Superior, the Respondent ought to be held responsible for any injuries, if at all, that may have been caused by her during the team building session, sponsored by it, where it provided alcohol to its employees, thus exposing both her and other employees to unwarranted dangers.

42. It was further submitted that the Claimant’s Constitutional right as guaranteed under Articles 19(2), 29 and 54(1)(a) as a person with a mental disability was violated by the Respondent and her dignity as provided for under Article 19(2) was not respected.

43. With regard to the allegations of sexual harassment, it was submitted on behalf of the Claimant that the Respondent did not discharge the burden of proof. To this end, it was argued that reliance on the screenshots by the Respondent after a fallout between the parties leading to the conclusion that she sexually harassed Esther Kinyenje was a gross miscarriage of justice based on the statements as filed by both parties. In support of the Claimant’s arguments, reliance was placed on the case of SRM vs GSS(K) Limited & another (2017) eKLR.

44. It was further submitted that there is no evidence of any sexual connotations and overtures on the Claimant’s part in the texts as evidenced herein and that the same were merely expressive of love and affection towards Esther Kinyenje on her part. It was contended on behalf of the Claimant that the same thus does not meet the threshold of sexual harassment allegations.

45. It was further argued that Esther Kinyenje not only encouraged flirtatious moments at all times with the Claimant, but also initiated the very moments now complained off as offensive; and only retracted the same when she learnt from her of the events during the team building between herself and Joy Kagwiria. That therefore, it can be said that Ms. Kinyenje’s actions were informed and motivated from hurt and disappointment.

46. Referencing the determinations in the case of Walter Ogal Anuro vs Teachers Service Commission and Anthony Mkala Chitavi vs Malindi Water & Sewerage Company Limited (2013) it was further submitted on behalf of the Claimant that the disciplinary hearing was neither fair nor procedural. On this score, it was submitted that the Claimant was issued with the notice on 7th October 2016 and the disciplinary hearing set for 11th October 2016, thus affording her only one day to prepare. It was contended that such time cannot be said to have been sufficient to prepare for the disciplinary hearing or to respond to the blanket sexual harassment charges levelled against her.

47. In further submission, it was argued that during the hearing, the Claimant pleaded four times with the committee to give her better details of who had levelled the accusations against her, but the committee refused to make such disclosure thus leaving her to fly blind in her responses and speculate on the actions that would be deemed as sexual harassment as against any person.

48. It was further contended on behalf of the Claimant that not only was the disciplinary hearing unfair and flawed, but equally that the Respondent failed to accord her a proper and fair opportunity to appeal her dismissal. In further support of the Claimant’s submissions, the Court was invited to consider the determination in the case of Freddy Kipkorir Lang’at vs Co-operative University of Kenya (2021) eKLR.

49. On the Respondent’s part, it was submitted that its obligation was to prevent and deter the commission of acts of sexual harassment at the workplace. On this score, the Respondent made reference to the case of P.O vs Board of Trustees, A.F & 2 others (2014) eKLR and N.M.L vs Peter Petrausch (2015) eKLR.

50. The Respondent proceeded to submit that the Claimant made several inappropriate text messages that were not work or work-related messages towards her colleagues. The Respondent maintained that the complainants did not welcome the Claimant’s marauding advances.

51. Citing the cases of Gilbert Michael Maigacho vs Coast Development Authority and Kenya Revenue Authority vs Reuwel Waithaka Gitahi & 2 Others (2019) eKLR, it was submitted by the Respondent that all that is required is for the employer to have a reasonable basis for genuinely believing that the ground for termination exists. The Respondent argued that what the law is concerned with here, is whether the circumstances surrounding the decision to terminate would justify a reasonable average person standing in the same position as the employer, to reach a similar decision.

52. Placing reliance on the case of George Okelleo Munyolo vs Unilever Kenya Limited (2019) eKLR, the Respondent further submitted that it followed due process and its Human Resources Manual in terminating the Claimant’s employment.

53. The Respondent maintained that it had a valid ground to summarily dismiss the Claimant from employment for engaging in inappropriate conduct in violation of Section 6 of the Employment Act as read together with Articles 28 and 41 of the Constitution.

54. With regards to the Claimant’s mental capacity, it was the Respondent’s submission that she was dismissed from employment vide a letter dated 4th November 2016 at a time when she was not suffering any mental illness. To this end, the Respondent argued that no cogent evidence was placed before this Court indicating that the Claimant was suffering from a mental illness during the subsistence of her employment with the Respondent.

Analysis and determination 55. Having considered the pleadings on record, the evidence, as well as the rival submissions, the following issues stand out for determination:i.Whether the Claimant had the mental capacity to stand the disciplinary hearing;ii.If the answer to (i) is in the affirmative, whether the Respondent has proved that there was a justifiable reason to terminate the employment of the Claimant;iii.Was the Claimant accorded procedural fairness prior to being exited from the Respondent’s employment?iv.Is the Claimant entitled to the reliefs sought?

Claimant’s mental capacity to stand the disciplinary hearing 56. The Claimant has pleaded that she suffered from repetitive bouts of depression which condition the Respondent was well aware of as the disorder was being managed by its health facility.

57. On the other hand, the Respondent has denied being aware of the Claimant’s mental health condition and contended that the same was only brought up after her termination in anticipation of this suit and as an afterthought. The Respondent further asserted that the Claimant did not raise her alleged mental health issues during her employment or seek professional help.

58. In support of the Claimant’s case, a Discharge Summary and Clinical sheet from Chiromo Lane Medical Centre dated 25th February 2017 was exhibited. The said Discharge Summary indicates that the Claimant was admitted on 11th February 2017 and discharged on 25th February 2017. From the record, the Claimant’s disciplinary hearing took place on 10th October 2016. It therefore follows that at the time the Claimant was admitted and treated at Chromo Lane Medical Centre, her disciplinary hearing had been concluded. Moreover, it is notable that by then, the Respondent had reached the decision to terminate the Claimant’s employment.

59. The Claimant asserted that in the course of her employment, she was undergoing therapy treatment at Build & Restore. Be that as it may, there was no evidence that the Respondent was in possession of this information at the time the Claimant was subjected to a disciplinary hearing.

60. The long and short of it is that there is no evidence before the Court confirming that the Respondent was aware of the Claimant’s mental health condition and if so, to what extent, at the time her disciplinary hearing was conducted on 10th October 2016. This is further noting that the Claimant was at work as of 7th October 2016 when she was suspended from duty. Therefore, it is doubtful that the Respondent was at the time seized with information regarding the Claimant’s mental health condition and specifically, her capacity to stand the disciplinary hearing.

61. It is also worth pointing out that the Claimant was adjudged to be suffering from a mental health disorder on 15th July 2022, during the pendency of this suit. As it is, this was way after her termination from employment.

62. In light of the foregoing, the Respondent, cannot be faulted for taking the Claimant through a disciplinary hearing on 10th October 2016.

Justifiable reason? 63. Sections 43(1) and 45 (2) (a) and (b) of the Employment Act (Act) are significant in determining whether the employer had a justifiable reason to terminate the employee’s employment. To start with, an employer is required to prove the reasons for an employee’s termination and failure to do so, such termination is deemed to be unfair. In terms of Section 45 (2) (a) and (b) of the Act, an employee’s termination from employment is unfair if the employer fails to prove-a.that the reason for the termination is valid;b.that the reason for the termination is a fair reason-i.related to the employees conduct, capacity or compatibility; orii.based on the operational requirements of the employer; …

64. In the instant case, the Claimant was terminated from employment on grounds that she sexually harassed her colleagues by her persistent offensive and unwelcome behaviour/remarks/innuendos which are sexual in nature.

65. From the record, it is apparent that the Respondent’s Ethics and Compliance team undertook investigations into the allegations raised against the Claimant and compiled a report. According to the report, the investigations were commenced following a report by Esther Muthoni Kinyenje who had alleged that the Claimant was making unwanted and unwelcome sexual advances towards her.

66. In the course of the investigations, the team interviewed the Claimant and some of her colleagues (Esther Muthoni, Joyce Kagwiria, Micah Muthee, Reuben Omolo and Jessica-Naomi Furaha) who recorded statements over the issue. The said statements and report were exhibited in Court by the Respondent in support of its case.

67. In her statement, the Claimant admitted that she had made advances towards Esther Muthoni Kinyenje who did not reciprocate the same. She admitted texting her that she is planning to move to South B so that she can be close to her and Esther did not respond to her text. She later thought about the move and it appeared creepy so she decided to move elsewhere.

68. With regards to Joyce Kagwiria, the Claimant stated that they met at a team-building event in 2015 and they flirted a lot. They danced and had a good time and she made advances towards her (Joyce).

69. They met again in another team-building event and interacted over drinks. When she went to the washrooms, she found that Joyce had left. Thereafter, she went to Joyce’s room and found that she had slept. That when she asked her (Joyce) the following morning, why she had left the previous night, she told her to stop disturbing her and when she sent her a message on Facebook, asking her what was wrong, she blocked her and told her that she was becoming a nuisance. She then sent her a message on Twitter and Joyce told her that she was harassing her and she did not want to be her friend or anything.

70. The Claimant admitted that when she sent the messages to Joyce, she made advances towards her. That she wanted to make her feel good.

71. In her statement to the Ethics and Compliance team, Esther stated that she met the Claimant when they worked together at Kencall before moving to the Respondent company. According to Esther, whenever she paid the Claimant a compliment, she would interpret it in a different way. She stopped paying her compliments. That the Claimant continued making numerous advances towards her on Facebook and WhatsApp and she told her she was not interested. However, she did not stop. She even told her (Claimant) that she would report the matter. The Claimant said that even she could take herself to the Human Resource.

72. Esther further stated that the Claimant had informed her that she was planning to move to Balozi Estate in South B, where she lives. She found this to be very threatening as she was not sure what would happen when the Claimant lived close to her.

73. The Respondent exhibited an extract of WhatsApp messages exchanged between the Claimant and Esther. Notably, the messages tally with the statements made by Esther and the Claimant to the Ethics and Compliance team.

74. Another colleague, Rueben Omollo confirmed in his written statement that the Claimant sent him a direct message on Instagram informing him that she really likes Esther. When he spoke to Esther about the Claimant, Esther became annoyed that the Claimant was continuously making advances to her yet she had clearly told her that she was not interested.

75. Reuben’s statement was confirmed by screen shots of Instagram messages he had exchanged with the Claimant.

76. Micah Muthee who was also the Claimant’s colleague stated that Esther had confided in him that the Claimant made her feel uncomfortable as she was making advances towards her. Esther requested him to talk to the Claimant to stop. The Claimant promised to stop but kept sending messages which made Esther uncomfortable.

77. On her part, Joyce Kagwiria stated that when she met the Claimant during a team building event, she (Claimant) informed her that she wanted to be more than friends. Joyce told her she was not interested in her. That the Claimant kept following her around that night even after she told her that she was not interested in her.

78. Joyce further stated that in another team-building event, the Claimant approached her again while she was very drunk (on both alcohol and cannabis sativa). She told her (Joyce) that she still likes her even if she doesn’t like her. That things will not change. The Claimant kept putting her hands on her (Joyce) shoulder and she would remove them. That the Claimant would follow her around and try to dance with her but she would refuse. She even asked her where her room was but she did not tell her.

79. That when she went to bed that night, she lied to the Claimant that she would be right back so that she wouldn’t follow her. While in bed, she heard a knock on her door and the Claimant calling out her name telling her to open the door for her because she wanted to tell her something. She refused and the Claimant continued banging the door. Eventually, she became tired and left.

80. The Sunday after the team building event, the Claimant sent her a direct message on Twitter telling her that she liked her even though she didn’t. According to Joyce, the Claimant knew that she wanted her to keep off but she said she wouldn’t. She went on to describe how she would see her going to pick up her headsets while at work and her heart would pound. Joyce stated that when the Claimant sent her these messages, she replied to her and clearly stated that she did not want anything to do with her. She blocked the Claimant from all her social media accounts.

81. The statement by Joyce was supported by the screen shots of Twitter messages exchanged between herself and the Claimant.

82. What manifests from the foregoing is that the statements by the Claimant, Esther, Joyce and Reuben tally on all fours. The point of divergence appears to be whether the Claimant’s actions amounted to sexual harassment. According to the Claimant, she did not sexually harass her colleagues.

83. Revisiting the Claimant’s statement before the Ethics and Compliance team, it is clear that she was romantically attracted to both Esther and Joyce. She also admitted making advances towards them. According to both Esther and Joyce, they informed the Claimant that they were not interested in her. Indeed, the Claimant confirmed that both Ether and Joyce informed her that they were not interested in her.

84. However, the Claimant was unrelenting and continued with her pursuit. For instance, in the case of Joyce, she admitted following her to her room in the second team-building event and found her asleep. The following day, Joyce told her to stop disturbing her. This did not stop the Claimant as she proceeded to send Joyce a message on Facebook who in turn blocked her. She then turned to Twitter and sent Joyce another message whereupon Joyce told her that she was now harassing her.

85. The message by the Claimant, goes as follows:“I tried messaging on FB but I was informed in Swahili that you are not receiving messages from me right now. I know you want me to keep off. But I won’t. There was a time you used to sit in Simba behind my locker and I would see you everyday when coming for headsets and my heart would pound every time. And I still feel the same way but you made it clear last year that we can’t be and even though I accepted it, I suddenly became excited about the team building when I saw your name on the list. I am sorry I am so annoying.”

86. Joyce wrote back: “Everytime we what??? I made it clear I don’t want anything to do with you. In case that wasn’t clear. leave me alone i don’t want to be ur friend (I have enough friends) or anything else. Keep being a nuisance and I’ll report u. This is now harassment!!!. Consider yourself blocked.

87. This was a clear demonstration that the Claimant’s advances towards Joyce were unwanted to the extent that Joyce had to call her out.

88. Indeed, the fact that the Claimant kept trying harder to the extent that she was blocked on social media was a clear message to her that Joyce was not interested in her advances. In her unrelenting pursuit, the Claimant crossed the line and her further advances upon being told to stop, qualified to be termed as harassment.

89. Further, with respect to Esther, the Claimant admitted she had never reciprocated her advances. However, that did not stop her and at some point, she even considered moving closer to where Esther lives.

90. In addition, the Claimant acknowledged in one of the messages exchanged with Esther, that she knew that Esther had decided that she should not talk to her or text her or call her. She further wrote:“Remember when I wanted to give you a foot rub??But only one person saw things. Which is weird….so I will take you to HR and report myself. I will tell Bob that I’m sexually harassing you and that I’ve wanted to kiss you since Kencall days…”

91. She further informed Reuben as much in her message as follows; “I texted her last night “I love you Muthoni. I will always love you…Even when you hate me. Tell HR I said that.”

92. These messages further confirm that the Claimant was aware that her advances towards Esther were unwanted and amounted to harassment as for the Human Resources to intervene.

93. The Harassment Policy exhibited by the Respondent defines sexual harassment to mean:“An unwelcome and unreciprocated sexual advances, requests for sexual favours and other verbal or physical or conduct of a sexual nature which results in the individual feeling threatened, disadvantaged or compromised in any way.”

94. The policy goes ahead to enumerate examples of sexual harassment (verbal and non-verbal) to mean; unwelcome language of a suggestive or sexually explicit nature; unwanted propositions of a sexual nature; or sexually offensive letters/memos, emails etc.

95. Applying the above definitions to the circumstances of this case, I am persuaded that the Respondent has proved on a balance of probabilities that it had sufficient reasons to believe that the Claimant had breached its Harassment Policy by making unreciprocated and unwelcome sexual advances towards her colleagues.

96. In arriving at this determination, I am mindful of the standard of proof applicable in this case. As stated herein, Section 43(2) of the Act, provides that the reason or reasons for termination of an employee are matters that the employer at the time of termination genuinely believed to exist, and which caused the employer to terminate the employment of the employee. Therefore, the standard of proof is on a balance of probability as opposed to, beyond reasonable doubt.

97. I must also add that the Claimant’s reference to her actions at the team building event and her argument that the Respondent should be held responsible for her actions under the principle of Respondeat Superior, do not hold. I say so because the circumstances surrounding the allegations of sexual harassment were not confined to that team building event only. From the record, the Claimant continued to pursue Joyce well after that event through social media, to the extent of being blocked.

98. In total sum, I am of the considered view that the Respondent has proved to the requisite standard that the reasons for the Claimant’s termination from employment were valid, fair and related to her conduct.

Procedural fairness? 99. The requirement for fair procedure is generally provided for under Section 45 (2) (c) of the Act. Additionally, Section 41 (1) of the Act makes specific requirements with regard to the process to be complied with by an employer. It entails notifying the employee of the allegations levelled against him or her and thereafter granting him or her the opportunity to make representations in response to the said allegations in the presence of a fellow employee or a shop floor union representative of own choice.

100. From the record, the Claimant’s disciplinary process was commenced by way of a notice of suspension dated 7th October 2016. Seemingly, the suspension was to pave way for investigations.

101. The record further reveals that on 7th October, 2016, the Claimant was issued with a Notification of a Disciplinary Hearing in which she was informed that:“On a number of instances, you have sexually harassed your colleague by your persistent offensive and unwelcome behaviour/remarks/innuendos which are sexual in nature. Further, your unwanted behaviour has continued despite several requests by your colleague to stop thereby causing her grave discomfort.”

102. Through the said Notification, the Claimant was also advised that her disciplinary case would be heard on 10th October 2016.

103. What stands out from the Notification reproduced above, is that the identity of the colleague the Claimant had sexually harassed was not revealed. As it turned out from the investigations, four of the Claimant’s colleagues alleged that she had sexually harassed them. That being the case, the question is which of the Claimant’s four colleagues was being referred to in the Notification?

104. Indeed, it is notable that during the disciplinary hearing, the Claimant kept enquiring which of her colleagues had complained about her behaviour. However, no answer was forthcoming from the panellists. How was the Claimant expected to defend herself effectively without knowing who the complainant in her case was? The identity of the complainant was very crucial in this case, as it would have ensured that the Claimant was well informed of all the particulars regarding the allegations against her.

105. Without such crucial information, it may very well be said that going in for the disciplinary hearing, the Claimant was ill prepared as she was not fully aware of the allegations laid out against her by the Respondent and the kind of defence she needed to mount against the same. It is more than probable that this compromised her line of defence during the hearing.

106. Indeed, the Respondent did not advance any plausible reason as to why it remained mysterious about the identity of the colleague, the Claimant had allegedly harassed sexually.

107. The Court of Appeal in the case of Ol Pejeta Ranching Limited vs David Wanjau Muhoro [2017] eKLR, found that the allegations against the employee in that case were too general hence termed his termination as unfair. The learned Judges rendered themselves thus:“As also rightly found by the learned trial Judge, no evidence was placed before court to show that the Respondent had been issued with a charge (s) of the specific allegations that he was required to answer during the hearing. Going in for the hearing, it is discernable from the record that the Respondent only knew in general terms, the allegations he was to face and counter…In the circumstances, therefore it cannot be said that the termination process was fair.” Emphasis mine

108. I fully concur with the above determination. Nothing would have been easier than for the Respondent to fully disclose the allegations against the Claimant by providing the name (s) of the colleagues who she had allegedly harassed sexually.

109. Therefore, in as much as the Respondent appears to have complied with the procedural requirements under Section 41 of the Act, the same was marred by the fact that the Claimant went in for the disciplinary hearing not fully knowing the allegations she was to be confronted with.

110. In the end, the process was procedurally unfair against the Claimant hence her termination was unlawful.

Reliefs? 111. As the Court has found that the Claimant’s termination although substantively justified was procedurally unfair, the Court awards her compensatory damages equivalent to four (4) months of her gross salary. This award further takes into account the length of the employment relationship between the parties.

Orders 112. It is against this background that I enter Judgment in favour of the Claimant against the Respondent as follows:a.A declaration that the summary dismissal of the Claimant by the Respondent was procedurally unfair hence unlawful.b.The Claimant is awarded compensatory damages in the sum of Kshs 258,808. 00 being equivalent to four (4) months of her gross salary.c.Interest on the amount in (b) at court rates from the date of Judgment until payment in full.d.The Claimant shall also have the costs of the suit.

DATED, SIGNED AND DELIVERED AT NAIROBI THIS 27TH DAY OF OCTOBER, 2023. ………………………………STELLA RUTTOJUDGEAppearance:For the Claimant Mrs. LigunyaFor the Respondent Mr. Ali AhmedCourt Assistant Abdimalik HusseinORDERIn 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 had 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.STELLA RUTTOJUDGE