https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2125

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT AND LABOUR RELATIONS COURT** **AT NAIROBI** **PETITION NO. E064 OF 2026** *(Before Hon. Justice Dr. Jacob Gakeri)* **CAROLINE WANJIKU KANGETHE……………………..…. PETITIONER** **VERSUS** **SUN POWER PRODUCTS LIMITED (BROWN’S FOOD COMPANY) ……………………………………………………………………. RESPONDENT** **JUDGEMENT** The Petitioner commenced the instant petition on 15th February 2026 alleging that she was treated in a humiliating, degrading and unlawful manner by the Respondent, whose senior officers ordered the Petitioner and other female employees to undress and expose under garments in the toilet in order to ascertain who among them was on her menses and could have disposed sanitary pad in a trash bin. The Petitioner averred that the Respondent’s Quality Assurance Officer, Rose Lydia Achieng conducted the intrusive inspection, while the Human Resource Manager looked on and oversaw the entire exercise. The Petitioner’s case is that the Respondent violated her right to privacy and human dignity, was discriminated denied overtime and her resignation was not voluntary but a constructive dismissal thus unfair termination of employment. The Petition is grounded on Articles 27(4), 28, 29, 31, 41 and 47 of the Constitution of Kenya, Article 1, 5 and 11 of the Convention in Elimination of ALL FORMS of discrimination Against Women, Article 17 and 26 of the International Covenant on Civil and Political Rights, Article 6(1) and (7) (a) (b) of the International Contention on Economic, Social and Cultural Rights Articles 1(a) and (b), 2 and 3 (a) and (b) of the ILO Convention No. 111 on Discrimination (Employment and Occupation) and Section 5 and 6 of the Employment Act. The Petitioner prays for: 1. A declaration that the acts of the Respondent, whether by its officers servants and agents, of forcibly compelling the Petitioner and their female employees to undergo ‘menstrual verification’ were unlawful unconstitutional, inhuman and degrading and amounted to sexual harassment and gender based violence in violation of the Constitution. 2. A declaration that the Respondent breached its statutory duty under Section 5 and 6 of the Employment Act by subjecting the Petitioner to discriminatory treatment and failing to address and provide a safe work place free from sexual harassment, intimidation and humiliation. 3. A declaration that the Respondent’s conduct of unlawful restraining and confining the Petitioner and other female employees within toilet facilities for over 2 hours amounted to false imprisonment and arbitrary deprivation of liberty contrary to the Constitution. 4. A declaration that the Petitioner’s exit from employment on 3rd June 2024 was not voluntary but compelled by the Respondent’s oppressive, hostile and intolerable conduct and amounted to constructive dismissal/unfair termination of employment. 5. Compensation for unfair termination of employment. 6. General damages for violation the petitioner’s fundamental rights and freedoms under Articles 27(4), 28, 29(a) and (f) 31, 41 and 47 of the Constitution including damages for humiliation, psychological trauma, distress and loss of dignity. 7. Aggravated damages for the Respondents oppressive, high handed, degrading, discriminatory and retaliation conduct including threats, coercion, intimidation, abuse of power and victimization of female employees. 8. Exemplary (punitive) damages to mark the courts disapproval of the Respondent’s conduct to deter others. 9. A mandatory order compelling the Respondent to develop, adopt and implement workplace policies and safeguards on prevention of sexual harassment, gender-based violence and discrimination. 10. A mandatory order compelling the Respondent to issue an written apology to the petitioner in terms approved by the court. 11. Costs of the petition. 12. Any other or further relief that the court may deem fit, just an expedient in the circumstances. **Respondent’s Case** In her Replying Affidavit sworn on 2nd April 2026 in opposition to the petition, Delia Stirling, one of the Respondent’s Director deponed that the Petitioner’s allegations that her voluntary resignation was actuated by hostile, toxic and intolerable working conditions created by the Respondent in retaliation for the 4th July 2023 incident was baseless and made in bad faith and no allegation of harassment, discrimination or retaliatory acts by the Respondents or its officials or employees had been raised prior to the resignation. That the Respondent had a comprehensive sexual harassment, non-discrimination and whistle blower policy which provided an avenue for redress but was not invoked. The affiant deponed that the Petitioner resigned voluntarily as the wording of the letter revealed. The affiant admitted that on 4th July 2023 some senior employees of the Respondent, Rose Opondo and Vivienne Mukoko contravened its polices on privacy rights and sexual harassment while on a ‘frolic of their own’ to establish the source of sanitary pad in the company’s dustbin and the officers were dismissed after disciplinary hearing. That the incident occurred without the Respondent or its directors or other senior management’s knowledge and contrary to the Employee Handbook and Code of Ethics and Sexual harassment Policy and the matter was investigated and action taken. The affiant described the conduct of its senior officers as unacceptable and conflicted with the Respondent’s values. That after the incident the Respondent hired Imela Ventures to offer psychological counselling to affected staff and Dr. Karen Mwangi provided services between July 2023 and October 2024. That the Petitioner was given overtime work when available and compensated for it as evidenced by her payslip and no complaint had been raised on overtime. The affiant denied that the Petitioner was constructively dismissed from employment. During cross-examination, the Petitioner explained the incident on 4th July 2013 to court and denied having received a copy of the Employee Hand book and Code of Ethics but admitted having signed that she had seen, read and understood the Respondent’s Staff Policy Manual and Code of Ethics. That Rose Opondo had told them that they would loose their job if they did not undress but admitted that the Code of Ethics had a reporting mechanism and after the incident Rose Opondo and Vivienne Mukoko left employment. The Petitioner admitted that she continued working for the Respondent without any issue until she reigned and her employment terms did not change she admitted that she had no evidence of retaliation and she did not report the incident to anyone. The witness admitted that she had no evidence of the alleged toxic environment and resigned by letter forwarded to the employer via email and did not mention that the working environment was toxic or provided particulars of discrimination and the respondent sent a memo to all staff on overtime. The Petitioner stated that other employees were still working with the respondent todate and Karen counselled them. On the other hand, RWI Delia Stirling confirmed that the conduct of the Manager Quality Assurance and the Human Resource Managers was unacceptable and the matter was investigated and action taken. That employees were a shamed and feared for their jobs. That the Petitioner was paid final dues but was not paid a salary because she did not issue a one (1) month’s notice and resigned on 3rd June 2024. **Petitioners Submissions** On violation of the Petitioner’s constitutional rights, counsel submitted that the Respondent admitted vide its Replying Affidavit that the incident of 4th July 2023 took place and the Investigation Report confirmed as much. Counsel submitted that the Respondent’s conduct was an unlawful intrusion and violated the Petitioner’s privacy, dignity and person hood. Reliance was placed on the decisions in **Koigi Wamwere v Attorney General (2015) eKLR,** on degrading treatment, **Peter M. Kariuki v Attorney General (2014) eKLR** on strip search and **Estate of CPT Kariuki Kingaru Murebu (Deceased) & 8 others v Attorney General Petition No. 49 of 2012** on forced nudity and degrading treatment. Counsel submitted that the conduct was discriminatory since it effected female employees only and amounted to sexual harassment. As to whether the Respondent was vicariously liable for the conduct of its employees, counsel submitted that he was relying on the decisions in **Vishaka & others v State of Rajashan & Ors (1997) SC (7)** 384 on employer’s liability for acts of the employee even where the acts in question were unauthorized, as long as they were committed in the course of employment. The decision in **Attorney General v Halal Meat Products Ltd (2016) eKLR** was also relied upon is were the decisions in **Lister v Hesley Hall Ltd (2001) UKHL 22 Armes v Nottinghamshire County Council (2017) v KSC 60** as well as **Barclays Bank PLC v Various Claimants (2020) UKSC 13, Moris & Ltd v Martin & Sons Ltd (1966) 1QB 716 and Various Claimants v Catholic Child Welfare Society (2012) UKSC 56** on the principles of various liability in an employment context and its justification, to submit that the senior employees of the Respondent committed the acts in question while acting within the field of activities entrusted to them by the Respondent at the work place. That the activities undertaken by the counsellor were not documented. On resignation of the Petitioner, Counsel submitted that the Petitioner remained in employment because she was a breadwinner of her family and the fact that she remained in employment before resigning could not avail the Respondent and the resignation was a constructive dismissal citing the Court of Appeal decision in **Coca Cola East & Central Africa Ltd v Maria Kagai Ligaga (2015) eKLR.** On overtime, counsel submitted that the Petitioner applied for it consistently and the Respondent did not avail all the records on overtime. Reliance was placed on **Bukenya & others v Uganda (1972) EA 549** on a partys failure to call evidence, to invite the court to make a negative inference against the Respondent. On quantum of damages for constitutional violations, reliance was placed on **Oyugi v Attorney General (2019) eKLR Estate of Cpt Kariuki Kingaru Musebu & 8 others v Attorney General (Supra) Kenneth v Njido Matiba v Attorney General and Koigi Wamwere v Attorney General (Supra),** to urge that the Petitioner qualified for Kshs.8,000,000.00 in general damages. The Petitioners Counsel did not submit on other reliefs. **Respondent’s submissions** As to whether the Petition was defective and barred by laches counsel cited the decision in **Anarita Karimi Njeru v Republic (1979) KLR 154** on precision. The decision in **Mumo Matemu v Trusted Society of Human Rights alliance** was also cited as was the Supreme Court decision **in Communications Commissions of Kenya & 5 others v Royal Media Services & 5 others (2014) eKLR** on the need to demonstrate the *nexus* between the constitutional provisions relied upon and the law, to urge that the Petitioner relied on generalizations did not show how the Respondent orchestrated a campaign of discrimination or retaliation against her. Counsel, additionally cited delay in filing the suit since the occurrences took place on 4th July 2026 and the Petitioner had voluntarily resigned in 2024. Reliance was placed on the Supreme Court decision in **Jan Mohammed (SC) Suing as the Executrix of the Estate of the late H.E. Daniel Toroitich Arap Moi) & another v Lagat & 4 others (2024) KESC 39 (KLR)** to urge that the principles of proportionality and reasonableness were still applicable in the enforcement of rights. Also cited was the decision in **Mitei v National Social Security Fund Board of Trustees (2022) KECA 974 (KLR)** on laches to urge that the Petitioner took 3 years to sue. On alleged discrimination regarding overtime, counsel submitted that that was a continuing wrong and was unsustainable after 12 months of separation, citing the decisions in **Kibidi v Teachers Service Commission (2025) KEELRC 64 (KLR**), The **German School Society & another v Ohany & another (2023) KECA 894 (KLR) Machira and 41 others v Aegis Kenya Ltd (2023) KEELRC 2551 (KLR)** among others, to urge that the Petitioner claims were stale and the delay had not been explained On vicarious liability, counsel singled out sexual harassment claims to urge that the incident on 4th July 2023 did not fall within any of the statutory categories under Section 6(1) of the Employment Act and the Respondent could not be held liable and vicarious liability had not been pleaded. Reliance was placed on the decision in **David Sironga Ole Tukai v Francis Arap Muge & 2 others (2014) KECA 155 (KLR),** that parties are bound by their pleadings and a court cannot grant unpleaded remedies. Counsel submitted that under Article 41 of the Constitution and Section 5 and 6 of the Employment Act, the employer is bound to provide a safe workplace free from harassment and the Respondent had policies on it and its former employees job role or positions did not include the actions they took in July 2023, and this was the first and they were acting outside the scope of their employment. Counsel cited the decisions of courts in the **USA in Hawkins v Anheuser -Busch Inc. (6th Circuit 2008) and Sellars VCRST Expedited Inc (8th Cir) and Swryear v Fare Foods Corp (7th Cir)** on harassment as well as the **South African Court decision in SAMKA V Shoprite Checkers (PTY) Ltd ILJ 1945** in various liability requirements on sexual harassment claim. Reliance was also placed on the decisions in **AWK v Bureau Veritas Kenya Ltd (2025) KEELRC 3622 (KLR)** and **Teachers Service Commission v W & 5 others (2020) eLKR** where the Court of Appeal upheld the finding that TSC was vicariously liable for actions of a Deputy Head Teacher for sexual abuse, to urge that the alleged sexual harassment and intrusive search were isolated incidences and action was taken to rectify the situation. Counsel urged the court to find that the Petitioner had not established a reasonable cause of action based on vicarious liability. On constructive dismissal, reliance was placed on **Kenneth Kimani Mburu & another v Kibe Mungai Holding Ltd (2014) eKLR and Coca Cola East & Central Africa Ltd v Maria Kagai Ligaga (2015) KECA 394 (KLR)** on the requirements of constructive dismissal to submit that the petitioner continued working after the incident and resigned to pursue ‘new opportunities’ Counsel, further submitted that the petitioner had not invoked the Respondent’s internal dispute resolution mechanism for the alleged discrimination or harassment. Counsel submitted that the Petitioner failed to prove that she was constructively dismissed from employment having resigned voluntarily, citing the decisions in **Kihara v Almasi Bottler Ltd & another (2025) KECA 1813 (KLR), Milton M. Isanya v Aga Khan Hospital Kisumu (2017) KEELRC 571 (KLR) and Adyana v Wrigley (EA) Ltd (2025) KEELRC 3436 (KLR)** On reliefs, counsel submitted that none was merited because the Petitioner filed the Petition late, it was not substantiated lacked merit and was for dismissal. **Analysis and determination** It is common ground that the Petitioner was an employee of the Respondent from 2018 until 3rd June 2024 when the two separated vide a resignation letter dated 2nd June 2024. Contrary to the Respondents Counsel’s submissions, the Petition was not filed late. It is equally not in dispute that a sanitary pad had been disposed of in a waste disposal bin whose discovery triggered a concatenation of events which culminated in the dismissal of the Respondent’s Quality Assurance Officer and Human Resource Manager. In an attempt to discover who among the female employees had discarded the sanitary pad inappropriately, Rose Lydiah Achieng Opondo and Vevienne Mukoko directed the female employees to the toilet, lined them up and inspected each of them in the toilet where they had to remove display their inner wear for verification by the two senior officers. It is unclear as to whether officers found the culprit. The Respondent confirmed that the incident took place and blamed its senior officers and dismissed them from employment after conducting disciplinary hearings. No doubt the conduct of the two officers subjected the petitioner and her colleague to indignation, degrading and humiliation. Their right to human dignity was violated as was their right to privacy. Strangely, the petitioner did not report the matter to anyone, yet she had read and understood the Respondent’s Staff Policy Manual and the Code of Ethics, and more significantly could have done it on email as she did for her resignation. Paragraph 12 of the petitioner’s Supporting Affidavit stated that approximately 35 female employees were subjected to the treatment by the two senior officers, which in the court’s view raises troubling questions of how two (2) unarmed female employees could bulldoze 35 other employees and subject them to degrading treatment and none stood up or walked away, yet they had the doors were open. It is not able that the petitioner and her colleagues knew what would happen in the toilet and did not raise a finger for fear of losing employment, the petitioner asserted. Would a reasonable employee in the petitioner’s circumstances behaved in the same manner? This court is not so persuaded. Having been an employee for more than five (5) years, the petitioner ought to have known what to do to avoid violation of her constitutional rights. Relatedly, the petitioner deponed that she was discriminated on overtime, victimized and subjected to retaliatory treatment and had to resign because the work environment was hostile, allegations the Respondent denied. The issues that commend themselves for determination are; 1. Whether the Respondent is liable for the conduct of its two senior officers under the principle of vicarious liability. 2. Whether the Respondent discriminated and victimized the petitioner. 3. Whether the petitioner was constructively dismissed from employment. 4. Whether the petitioner is entitled to the reliefs sought. Before delving into the issues isolated above, it is important to lay to rest the issue whether the Respondents conduct violated the petitioner’s rights. It is common ground that after the Respondent conducted an investigation on the incident of 4th July 2023 it ascertained what the petitioner alleged in this case. RWII admitted in court that the incident took place and it was unacceptable. The admission by RWII solidified the fact that violation of constitutional rights of employees took place at the Respondent’s premises at the behest of the Respondent’s senior officers in Quality Assurance and Human Resource. Evidently, the Respondents officers violated the petitioners right to human dignity under Article 28 of the Constitution of Kenya, which provides that every person has inherent dignity and the right to have that dignity respected and protected by subjecting the Petitioner to the ‘verification’ exercise the officers neither respected nor protected the petitioner’s inherent dignity. Second, the treatment the petitioner was subjected to was degrading and utterly demeaning contrary to the provisions of Article 29 (f) of the Constitution. Third, the Respondent’s officials violated the Petitioner’s right of privacy under Article 31 of the Constitution which provides that; Every person has the right to privacy, which includes the right not to have; 1. Their person, home or property searched. Finally, the conduct of the two senior officers could not pass the test of fair labour practice under Article 41 as it, *inter alia* entailed punishing a group of employees for the transgression of one and elevating a minor infraction or transgression into an organizational challenge. Under Article 23(3) the Court has jurisdiction to grant appropriate reliefs where a person’s right (s) or fundamental freedom(s) is denied, violated, infringed or threatened. In the instant case, the violation was actualized and the petitioner is entitled to damages. As to whether the Respondent is vicariously liable for the conduct of its employee’s, parties have adopted contrasting positions with the respondent contending that the two senior officers were engaged on a ‘frolic of their own’ and were therefore personally liable. The principles that govern Vicarious liability are well settled. In **Analet Kalia Musau v Attorney General & 2 others, (2020) KECA 723 (KLR),** the Court of Appeal held; *“The principle of vicarious liability is based on the doctrine of ‘respondent superior’ ‘let the master answer’. The master will only be liable for the tort committed by his servant if it was committed by the servant acting in the course of his employment. But if the servant was on his own frolics, the master cannot be liable.* See **Joel v Morrison (1834) 6 C & P 501** at P 503” In **Salmond on Torts 1st Edition P. 83**: *“ A master is not responsible for a wrongful act done by his servant unless it is done in the course of his employment. It is deemed to be so done if it is either (a) a wrongful act authorized by the master, or (b) a wrongful and unauthorized mode of doing some act authorized by the master”* Similarly, in **Muwonge v Attorney General of Uganda (Supra**), the Court of Appeal held; *“It is not in dispute that the principles of law governing the liability of the Attorney General in respect of acts of a member of the police are precisely the same as those relating the position of a master’s liability for acts of his servant. This being so, the legal position is quite clear and has been quite clear for some considerable time. A master is liable for acts of his servant committed within the course of his employment or, to be more precise, in relation to a policeman, within the exercise of his duty. The master remains so liable whether the acts of the servant are negligent or deliberate or wanton or criminal. The test is were the acts done in the course of his employment or, in this case within the exercise of the policeman’s duty.”* The Attorney General was held liable, See also **Tabitha Nduhi Kinyua v Francis Mutua Mbuvi & another (2014) KECA 297 (KLR), HCM Anyanzwa & 2 others v Luigi De Casper & another (1981) KLR 10, Lake Flowers v Cila Francklyn Ngonga & another (2008) KECA 54 (KLR) John Nderi Wamugi v Ruhesh Okumu Otiangala Civil Appeal No. 24 of 2015.** Finally, in **Teachers Service Commission v W J & 5 others (2020) KECA 741 (KLR)**, the Court of Appeal found the Appellant liable in damages for abuses committed by its teacher on students as follows; *“… That an act will be deemed to have been committed during the course of employment, if there was a close connection between the conduct and the employment. Similarly, in the instant appeal, there was a close connection between the conduct of the 3rd Respondent as a teacher when he abused his position as a teacher and abused his students.”* Applying the principles discussed above to the facts of this case, the court is satisfied that the Respondent’s senior officers in the Human Resource and Quality Assurance subjected the Petitioner and other female employees to a menstrual verification in the course of their employment as Quality Assurance Manager and Human Resource Officer, by abusing their positions as officers and abused female employees. The reasoning is that the Respondent employed the two officers and gave them responsibilities over other staff and thus cannot escape liability for their nefarious acts committed in the course of their employment against fellow employees at the work place. The conduct of the officers and their employment were in the court’s view inseparable. As to whether the Respondent discriminated the Petitioner the Petitioner maintained that she was discriminated on overtime, an allegation the Respondent denied contending that overtime was fairly distributed when available. The provisions of Article 27(4) of the Constitution of Kenya and Section 5(3) of the Employment Act prohibit direct and indirect discrimination on any ground including race, sex, pregnancy, marital status, health status, ethnic or social origin colour, age, disability, region, conscience, belief, culture, dress, language or birth. In **Peter K Waweru v Republic (2006) KLR,** the Court stated: *“… Discrimination means affording different treatment to different persons attributable wholly or mainly to their description whereby persons of one such description are subjected to …restrictions to which persons of another description are not made subject or are accorded privileges or advantages which were not accorded to persons of another such description…”* See also **Nyarangi & others v Attorney General (2008) KLR 688 Samon Gwer & 5 others v Kenya Medical Research Institute (2020) eKLR and Simon Gitau Gichuru v Package Insurance Brokers Ltd KESC 12 (KLR).** It is noteworthy that the law does not outlaw every form or shade of discrimination. It prohibits differential treatment of persons who are similarly circumstanced with any objective and reasonable justification. In addition, although section 5(7) of the Employment Act places the burden of disproving discrimination on the employer, the burden does not shift automatically, it only shifts to the employer after the employee has evidentially established a *prima facie* case of discrimination as held in **Nyachae v Kenya Orient Insurance Ltd (2023) KECA 136 (KLR).** Applying the foregoing principles to the facts of the instant case the court finds that the petitioner has failed to make out a *prima facie* case of discrimination, victimization or harassment by the Respondent. As regards overtime, the Petitioner failed to demonstrate that she was the only member of the support staff who was not given overtime or that our of a particular number of support staff only a few or some were accorded overtime. Documentary evidence on record revealed that not every member of the support staff had overtime and although the Petitioner earned overtime pay routinely before the COVID-19Pandemic, the circumstances appear to have changed which culminated in a memo from the Respondent on overtime. Having failed to show a *prima facie* case of discrimination, the burden of proof did not shift to the Respondent to disprove the same. As regards the alleged victimization, the Petitioners tendered no *scintilla* of evidence to prove victimization including why she was being victimized. During cross-examination, the petitioner admitted that after the incident she continued working as before without any issue the terms of employment did not change and continued receiving his salary. The Petitioner admitted that she had not furnished particulars of harassment and discrimination and adduced no evidence to demonstrate that she was harassed. Flowing from the foregoing, it is clear that nothing turns on this issue. As to whether the Petitioner was constructively dismissed, parties have adopted opposing positions. While the Petitioner’s counsel submitted that the petitioner’s resignation was not voluntary but occasioned by the hostile working environment the Respondent maintained that the Petitioner voluntarily resigned from employment. It is trite that constructive dismissal is part of Kenya’s employment law jurisprudence in relation to termination of employment. The classical rendition of the principle are the sentiments of Lord Denning MR in **Western Excavating (ECC) Ltd v Sharp (1978) ICR 221** as follows; *“If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract then the employee is entitled to treat himself as discharged from any further performance.* *If he does so, then he terminates the contract by reason of the employer’s conduct. He is constructively dismissed. The employee is entitled in those circumstances to leave at the instant without giving notice at all or alternatively, he may give notice and say that he is leaving at the end of the notice. But the conduct must in either case be sufficiently serious to entitle him to leave at once. Moreover, he must make up his mind soon after the conduct which he complains: for if he continues for any length of time without leaving, he will loose the right to treat himself as discharged. He will be regarded as having elected to affirm the contract.”* The principle of constructive dismissal was domesticated in Kenya by the Court of Appeal decision in **Coca Cola East and Central Africa Ltd v Maria Kagai Ligaga (Supra),** where the court *inter alia* adopted the contractual test which means that whenever an employee alleges constructive dismissal, the court must be satisfied that the conduct of the employer constituted a repudiatory breach of the contract of employment. The Court of Appeal was persuaded that the contractual test was narrow and precise as compared to the unreasonable test and less susceptible to overstretching the doctrine of constructive dismissal. Significantly, the court enunciated the principles applicable in determining constructive dismissal, namely; the fundamental and essential terms of the contract of employment, whether a repudiatory breach of contract has taken place, causal link between the employers conduct and the reason for terminating the contract, conduct of the employer must be fundamental going to the root of the contract, objective test, employee leaving with or without notice, employee must not have accepted, waived, acquiesced or conducted himself in a manner as to be estopped from asserting repudiatory breach, and prove of constructive dismissal. Applying these principles to the facts of the instant case, the court is satisfied that the petitioner cannot assert repudiatory breach of the contract of employment. First, the petitioner confirmed on cross-examination that after the incident on 4th July 2026, she continued working as she had done previously and was paid. Infact the petitioner admitted that nothing changed. Second, the alleged toxic work environment created by the Respondent lacked a context and particulars. The petitioner availed no shred of evidence to prove the alleged conduct of the employer and how she survived it for almost one (1) year after the incident. In other words, the petitioner failed to prove that the respondent committed a repudiatory breach of the contract of employment and even if there was any, the petitioner took too long to make up her mind and thus lost her right on account of election, affirmation or estoppel. Third, the principal document which ought to have given a preview of the petitioner’s mind made no reference to the alleged toxic work environment. In her resignation letter, the petitioner expressed gratitude for the opportunity the Respondent had given her to grow, learn and mentoring throughout the period of employment. Finally, the Petitioner expressed her excitement about the new opportunities that she would be pursuing and wished the Respondent future success. It requires no belabouring that the petitioner’s letter did not evince an employee who was leaving employment on account of a hostile work environment. It evinces an employee who appreciated the trajectory the Respondent had provided. In the court’s view, the Petitioner’s allegation on the toxicity of the work environment was an afterthought. Nothing turns on this issue. On entitlement to reliefs, the court proceeds as follow: 1. Having found as above the declaration that the acts of the Respondent whether by its officers served and agents subjecting the petitioner to ‘menstrual verification were unlawful unconstitutional, inhuman and degrading and violated the provision of the Constitution of Kenya is merited. 2. The court is not persuaded that the petitioner was discriminated. The declaration sought is declined. 3. The court is not persuaded that the petitioner was falsely imprisoned and did not allege that the doors to the toilet room was closed or that the two officers were armed. The petitioner was not confined and could have left the queu to the ‘inspection room. The declaration is declined. 4. The declaration, sought on constructive dismissal is declined as adverted to else where in this judgment. The declaration is denied as is the prayer for compensation for unfair termination of employment. 5. Having found that the Respondent’s conduct violated the petitioners constitutional right of human dignity, privacy, fair treatment and fair labour practices, the court is satisfied that an award in damages is merited. Whereas the decisions in the **Estate of Cpt Kariuki Kingaru Murebu (Deceased) & 8 others v Attorney General (Supra), Kenneth Stanley Njindo Matiba v Attorney General (Supra) and Koigi Wamwere v Attorney General (Supra)** provide some guidance on awards, all involved physical torture of the victims and abuse which was not the case in the instant case. 6. The court is satisfied that the sum of Kshs.1,000,000.00 is sufficient in the circumstances. 7. Aggravated damages. The petitioner made no case for the award of aggravated damages. The prayer is dismissed. 8. Exemplary damages. This is a category of damages whose purpose is to punish and deter as held in **Godfrey Julius Ndumba Mbogori & another v Nairobi City County (2018) eKLR.** The Petitioner failed to demonstrate that her case fell within the rule in Rooks v Barnard (1964) A.C. 1129. The prayer is declined. 9. On an order compelling the Respondent to develop and adopt and implement policies for the work place. The Respondent has the requisite policies on the matters in question and it is not the courts duty to supervise employers. The prayer is declined. 1. The prayer for written apology by the Respondent is declined. In the upshot judgment is entered in favour of the Petitioner against the Respondent in the following terms: 1. Declaration that the Respondent’s conduct of subjecting the Petitioner to menstrual verification was unlawful, unconstitutional, in human, degrading and a violation of the constitution. 2. Award of Kshs.1,000,000 in damages for violation of constitutional rights. 3. Costs of the suit Orders accordingly. **DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI ON THIS 23RD JULY, 2026.** **DR. JACOB GAKERI** **JUDGE** **ORDER** In 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. **DR. JACOB GAKERI** **JUDGE**