https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1065

Orkistudio Company Ltd v MAV & another (Civil Appeal 148 of 2020) [2026] KECA 1065 (KLR) (29 May 2026) (Judgment) Neutral citation: [2026] KECA 1065 (KLR) Republic of Kenya In the Court of Appeal at Eldoret Civil Appeal 148 of 2020 JM Mativo, PM Gachoka & WK Korir, JJA May 29, 2026 Between Orkistudio Company Limited Appellant and MAV 1st Respondent Allan Brooks 2nd Respondent (An appeal against the entire Judgment of the Employment and Labour Relations Court of Kenya at Eldoret (J. N. Abuodha, J.) dated 20th February 2020 in ELRC Cause No. 265 of 2018) Judgment 1.At the heart of this appeal are three pertinent questions which beg for answers. The first is whether the 1st respondent proved on a balance of probabilities that the 2nd respondent sexually harassed her. Closely tied to this question is yet another pivotal question, that is whether an employer can be held vicariously liable for acts of sexual harassment committed by its employee at the workplace. It is important for us to clarify at the outset that the definition of a "workplace" for purposes of sexual harassment has evolved from a strict geographical boundary to a functional situational concept. Courts across various jurisdictions hold that a workplace is not limited to the physical office or corporate building, but extends to any location, virtual space or event where an employee is carrying out work-related duties, interacting with colleagues or operating within the course of employment. (See this Court’s decisions in Kinda vs. Aiducation International (K) & Ano. (Civil Appeal E047 of 2022) [2026] KECA 350 (KLR) (27 February 2026) (Judgment) and St Leonard's Maternity & Nursing Home vs. LMM (Civil Appeal 59 of 2019) [2023] KECA 1148 (KLR). The second question is whether a probationary employee is entitled to due process prior to termination of his/her employment? Third, is the question whether the award of damages to the 1st respondent was merited. 2.To answer the above questions, it is important for us to briefly highlight the facts which triggered the litigation before the trial court which yielded the judgment the subject of this appeal. Fortunately, the bulk of these facts are either common ground or uncontested. For example, it is common ground that the 1st respondent, a Quantity Surveyor by profession was employed by the appellant as an Assistant Construction Project Manager vide a contract dated 2nd May 2018 at an agreed remuneration of USD 50,000 per annum translating to Kshs.112,500/- per month. The 1st respondent averred that the 2nd respondent a Senior Project Officer was also employed by the appellant. However, in its reply to the claim, the appellant and the 2nd respondent denied that he was employed as such. They maintained that the 2nd respondent was engaged to offer consultancy services to the 1st respondent in relation to structuring the appellant’s construction process and methods. However, there is no contest that the 1st respondent was deployed to work with the 2nd respondent at Kakamega County in a construction project belonging to the appellant’s client known as the One Acre Fund which was constructing its headquarters phase II office blocks. 3.The 1st respondent initiated the proceedings before the trial court by a memorandum of claim dated 8th October 2018, in which she claimed that on the 24th September 2018 while in the course of her work at One Acre Fund Project at Kakamega, the 2nd respondent visited the site and in gross dereliction from his contractual obligations and the law, he suggested to her that they work from his house instead of the designated site office. She also complained that he hugged her in the open and without her consent thus causing unwelcome contact with her person. She also claimed that on 28th September 2018, while she was not at the site, the 2nd respondent called her from his phone and informed her that he was missing her at the site in what she described as “a sexual overture manner.” She also stated that he texted her from his phone telling her that she was very sexy. She accused him of threatening her with termination in order to coerce her into submitting to unwarranted and unwelcome sexual acts. She averred that he verbally terminated her employment. Lastly, she stated that he took advantage of her employment status of being on probation to solicit and menacingly induce sexual favors from her. 4.The 1st respondent averred that the appellant failed: (a) to have in place a policy statement on sexual harassment; (b) to bring to the 2nd respondent’s attention the policy on sexual harassment; (c) to consult the employees prior to issuing a policy statement on sexual harassment; (d) to protect the 1st respondent from sexual harassment by the 2nd respondent; (e) to take disciplinary action against the 2nd respondent for sexually harassing her; (f) colluded, aided and abetted the sexual harassment committed to her by issuing a termination letter to her at the instigation of the 2nd respondent; (g) failed to accord her an opportunity to show cause why she should not be terminated over alleged misconduct or/performance as required by law; (h) failed to accord her an opportunity to be heard in the presence of a fellow employee of her choice or representative; (i) failed to provide the 1st respondent with written reasons for termination of employment; (j) failed to give written notice of termination in accordance with the law; and, (l) failed to notify the Director of Employment of the termination. 5.It was the 1st respondent’s case that the actions complained of above violated her rights under Articles 28 and 31 of the Constitution, section 23 (1) of the Sexual Offences Act, sections 6, 41 and 42 of the Employment Act (the Act), and the 1993 United Nations Declaration on the Elimination of Violence Against Women and sought the following reliefs:a.A declaration that the termination of employment was unfair and unlawful.b.A declaration that she was sexually harassed, subjected to gender based violence, her privacy invaded and her dignity violated by the acts of the respondents in breach of Articles 28 and 31 of the Constitution of Kenya, 2010, section 23(1) of the Sexual offences Act, no. 3 of 2016, section 6 of the Employment Act, no. 11 of 2007 and the 1993 United Nations Declaration on the Elimination of Violence Against Women coupled with the assessment and award of general and punitive damages.c.A declaration that the respondents had failed to comply with the requirements of section 6 of the Employment Act, 2007 and are culpable for a criminal offence based on section 88 of the said Act.d.Two months’ notice pay@Kshs.112,500 Kshs.. 225,000/-e.12 months’ salary as damages for unfair and unlawful termination @Kshs.112,500/-………Kshs.1,350,000/-f.Costs and interests. 6.In their response dated 13th November 2013, the appellant and the 2nd respondent denied the claim in its entirety save for the text messages which the 2nd respondent admitted writing but he averred that they were texted in error and a message correcting the error followed immediately. The appellant maintained that it had in place a sexual policy which it had brought to the attention of all its employees including systems to investigate allegations of sexual abuse. It averred that it could not act on the 1st respondent’s unverified allegations and investigations could not be done without her recording a statement. 7.The appellant maintained that the 1st respondent’s termination was on account of her inability to work and perform her duties in accordance with the terms of the contract of employment which greatly compromised her ability to deliver the project to its client both in terms of time and quality. The appellant maintained that it notified the 1st respondent of her termination by a letter dated 28th September 2018 giving her a notice period of 14 days, which was more than the 7 days' contractually agreed notice period since she was still on probation. Therefore, the appellant was under no obligation to notify the Labour Officer. 8.After analyzing the respective parties’ case and the law, the learned judge in the impugned judgment dated 20th February 2020 concluded as follows:“In conclusion, the court finds that the claimant was sexually harassed by the 2nd respondent and that the 1st respondent did nothing to investigate her complaints. Further, the claimant’s termination had something to do with her refusal to submit to the 2nd respondent’s sexual advances. The court in the circumstances holds that a proper case has been made for an award of maximum compensation for unfair termination of service and sexual harassment. The court thus awards the claimant as follows:a.One month’s salary in lieu of notice..Kshs.112,500/-b.Twelve month’s salary as compensation for unfair termination of service…..Kshs.1,350,000/-c.Compensation for sexual Harassment Kshs.1,000,000/- Total Kshs.2,462,500/- 9.Aggrieved by the above verdict, the appellant is now before this Court seeking to overturn the said decision. In its memorandum of appeal dated 14th October 2020, the appellant cites 5 grounds of appeal and has expounded each ground by an argument and a narrative. The statutory foundation governing the contents of a memorandum of appeal is Rule 88 (1) of the Court of Appeal Rules, 2022 which mandatorily requires a memorandum of appeal to set forth grounds of objection concisely and under distinct heads, without argument or narrative. As the above provision stipulates, the grounds of appeal must be concise, specific, numbered statements of the exact errors alleged to have been made by the trial court. They serve only to flag out the issues for the appellate court and are not the place for legal arguments or narratives. This Court in Robinson Kiplagat Tuwei vs. Felix Kipchoge Limo Langat [2020] eKLR censured verbose, 18 grounds of appeal which were largely tedious and unfocussed submissions. In Michael Mungai vs. Independent Electoral and Boundaries Commission & 2 Others [2014] eKLR, this Court was categorical that grounds of appeal should not act as "submissions in themselves." We find that the grounds of appeal as drafted offend Rule 88 (1) of the Court of Appeal Rules 2022 because they are argumentative. 10.Nevertheless, in summary, the appellant faults the learned judge for: (a) holding that the 1st respondent’s termination was unfair because the appellant never provided her with reasons, despite the fact that the appellant had no legal obligation to provide reasons; (b) finding that the basis for the 1st respondent’s termination was sexual harassment by the 2nd respondent, yet it was in accordance with the 1st respondent’s terms of service; (c) holding that the appellant did nothing to protect the 1st respondent from sexual harassment; (d) condemning the appellant to pay damages, yet the alleged sexual harassment was claimed to have been committed by the 2nd respondent an independent contractor and (e) erred in awarding costs. The appellant prays that this appeal be allowed, and that the judgment and decree issued in ELRC Case No. 265 of 2018, Margaret Abukutsa Vidolo vs. Orkidstudio Company Limited and Allan Brooks be set aside. 11.We heard this appeal on 3rd March 2026. Learned counsel Mr. Dedan Wachira appeared for the appellant and the 2nd respondent together with Ms Waweru. Learned counsel Mr. Tobias Mugambi appeared for the 1st respondent. 12.In support of the appeal, the appellant’s counsel Mr. Wachira and Ms Waweru adopted their written submissions dated 4th December 2025 which they highlighted orally. Addressing the question whether the termination was unfair, the appellant’s counsel faulted the trial judge for finding that the termination was unfair despite the fact that her employment contract began on 14th May 2018 and it was subject to a probation period of 6 months which was to lapse on 13th November 2018. Counsel argued that the 1st respondent was issued with a termination letter on 28th September 2018 during her probation period. Therefore, the termination was lawful because it complied with section 42 of the Act. Further, the respondent was given 14 days’ notice and she was paid all her dues. Counsel contended that section 42 (1) of the Act excludes employees on probation from the procedural and substantive protections stipulated in section 41 of the Act. 13.It was the appellant’s counsel’s position that the applicable law at the material time was section 42 of the Act. However, on 30th July 2021, the ELRC in Kibichi & 6 others vs. Mount Kenya University; Attorney General (Interested Party) [2021] KEELRC 2310 (KLR) declared section 42 (1) of the Act inconsistent with Articles 41 and 47 of the Constitution. Counsel relied on the said decision to urge that at the time of the termination, section 42 was good law, therefore, the appellant cannot be penalized for applying the law as it was at the time of the termination because it was good law. Counsel faulted the learned judge for relying on the decision in Samuel Momanyi vs The Attorney General [2014] eKLR which is distinguishable from the facts of this case. They also cited several decisions rendered by the ELRC to support the argument that section 42 of the Act has been the subject of conflicting court decisions and contended that the trial court erroneously applied the said section retrospectively. 14.The other ground urged by the appellant’s counsel is that sexual harassment was not proved to the required standard and dismissed the 1st respondent’s evidence as wanting. According to counsel, the 1st respondent’s testimony was not corroborated by documentary evidence or independent witnesses. Counsel maintained that the 1st respondent’s averments and testimony are insufficient to sustain a finding of sexual harassment. Further, counsel maintained that the 2nd respondent was not the appellant’s employee but he was engaged as a consultant. 15.Lastly, the appellant’s counsel dismissed the award of Kshs. 1,000,000/- for sexual harassment as totally unmerited. They also faulted the trial court for awarding compensation for unfair termination, yet the 1st respondent was still on probation when she was terminated in accordance with the contract. 16.In opposing the appeal Mr. Mugambi, the 1st respondent’s counsel relied on the Court of Appeal decision in Ooko & Ano. vs. SRM & 2 Others [2022] KECA 44 (KLR) in support of the proposition that the main elements of sexual harassment include unwanted verbal or physical conduct or a physical conduct of a sexual nature and with the purpose of injuring the victim’s dignity or create an intimidating, hostile, degrading, humiliating or offensive environment for him or her or if there is less favourable treatment or detriment that arises as a result of the rejection or submission to the unwanted conduct. 17.Mr. Mugambi also argued that the appellant did not have in place a policy statement on sexual harassment that complied with the law. Alternatively, it failed to bring to the attention of the 2nd respondent the existence of the policy and failed to protect the 1st respondent from sexual harassment by the 2nd respondent. Counsel maintained that the appellant failed to ensure a work environment that was free from sexual harassment and to address complaints relating to sexual harassment. He cited section 6 (1) of the Act and NML vs. Peter Petrausch [2015] eKLR to urge that the appellant and the 2nd respondent’s actions were unfair, unlawful and in violation of section 23 (1) of the Sexual Offences Act, Article 28 of the Constitution and the 1993 United Nations Declarations on the Elimination of Violence Against Women. 18.To further buttress his argument, Mr. Mugambi cited the Supreme Court of India decision in Vishaka & others vs. the State of Rajasthan & Others [1997] SC 384 in support of the proposition that sexual harassment includes unwelcome behavior whether direct or indirect such as physical contact and advances, sexual favours and sexually colored remarks. Counsel also cited the ELRC decision in CAS vs. CS Ltd [2016] eKLR (Cause No. 1443 of 2015) in which the court found the respondent culpable for failing to have in place a sexual harassment policy. He also cited the decision in P.O. vs. Board of Trustees SF & 2 Others [2014] eKLR (Industrial Cause No. 1386 of 2010) to urge that sexual harassment merits damages to inter alia compensate injury to the feelings, humiliation and dignity. 19.Regarding the termination, counsel argued that the appellant was not accorded an opportunity to show cause why she should not be terminated and cited this Court’s decision in Red Lands Roses Ltd vs Mugo [2025] KECA 96 (KLR) which held inter alia that the ELRC decision in Kibichi & 6 others v. Mount Kenya University; Attorney General (Interested Party) (Supra) has never been appealed against, therefore, it remains good law. Counsel maintained that the appellant was under a duty to provide reasons for the termination and added that the termination took place outside the probation period because the contract began on the 2nd May 2018, therefore, the 6 months were to lapse on 2nd October 2018 while the termination took place on 12th October 2018. 20.First, we will address the question whether the 1st respondent’s termination was unfair. In their response to the 1st respondent’s statement of claim dated 13th November 2018, the appellant and the 2nd respondent averred that the 1st respondent was terminated on account of inability to perform her duties. Confronted with this argument, the learned judge had this to say:“ 24.The respondent alleged that the claimant's service was terminated on account of inability to work and perform her duties in accordance with her contract however, no evidence was produced to show that the issue of the claimant's inability to work and perform her duties was ever raised with her. The claimant's termination letter dated 28th September, 2018 made no disclosure at all of the reasons why the claimant's service was being terminated. The letter simply informed her of the regret to terminate her employment and that the decision was non-reversible.” 21.We have re-evaluated the entire record. As the learned judge correctly observed in the above excerpt, the appellant’s witness in her witness statement and in her evidence in chief never adduced evidence to support their averments on the alleged poor performance. Answering questions during cross- examination, the appellant’s sole witness Ms Wamboi Munene who was the appellant’s Finance Director admitted that the 1st respondent was not given any document complaining about her performance. We also find nothing on record to show that the alleged poor performance was communicated to the 1st respondent either verbally or otherwise prior to the termination. 22.This Court has consistently held that pleadings are merely statement of a party's case and do not constitute evidence. Consequently, unproved allegations or averments contained within plaints, defenses cannot be relied upon by a court to grant reliefs unless they are supported by evidence or explicit admission. In MC Aviation Ltd vs. Cruisair Ltd (No. 1) [1978] KLR 103, Madan, JA clearly articulated the distinct boundary between pleadings and proof, stating:“The pleadings in a suit are not normally evidence. They may become evidence if they are expressly or impliedly admitted as then the admission itself is evidence. Evidence is usually given on oath. Averments are not made on oath. Averments depend upon evidence for proof of their contents." 23.If a party makes factual averments in their pleadings but fails to substantiate them with proof, those averments remain mere and empty allegations. This case is not an exception. We find no reason to fault the learned judge’s finding on the issue at hand. 24.Next is the question whether the appellant was legally obligated to provide the 1st respondent with the reasons for termination. Regarding this issue, the learned judge stated: 25.It is a requirement of the Employment Act that before a termination of an employment contract is undertaken, the employee must be made aware of the reasons for which the termination is being considered and given a chance to make representations before a decision is taken. 26.The respondent has contended that since the claimant was on probation, she did not require to be taken through this process by virtue of section 42 of the Act. This is not the correct apprehension of section 42. As observed by Lenaola, J. in the case of Samuel Momanyi vs the A.G. [2014] eKLR the fundamental rights of employees not to be unfairly terminated as provided for in section 45(1) and (2) of the Employment Act cannot be abrogated during the probation period unless clearly expressed so. The only right as far as termination is concerned which has been abrogated during the probationary period is the right to procedural fairness in section 41 of the Act. That is the import of section 42. 27.The upshot of this is that the respondent has, failed to prove that their existed a valid reason for terminating the claimant's service. The claimant's assertion that her termination was influenced by her refusal to yield to the 2nd respondent’s sexual advances therefore become more probable than not. This is supported by the fact that whereas the 1st respondent claimed there was a sexual harassment policy in place and available to all staff, the respondent's own email dated 25th October 2018 admits that this policy if at all was in place was never shared with the 2nd respondent. 28.Further, by an email dated 1st October 2018, the respondent acknowledged receipt of the claimant's complaints and reiterated its commitment to provide a safe space for all employees free from any form of harassment, including sexual harassment. The letter further went ahead to invite the claimant to Nairobi to meet with a Mr. Munene and the other directors, in order to get the facts and the chain of events directly from the claimant. One however wondered the purpose of this letter and the invitation to Nairobi could have served after the claimant had on 28th September 2018 been issued with a non-reversible termination letter.” 29.Granted, section 42 (1) of the Act permitted a rapid, simplified termination process for probationers. This section explicitly stated that the strict disciplinary hearing requirements under section 41 did not apply to probationary contracts. However, this changed entirely following landmark jurisprudence in Kibuchi & 6 Others vs. Mount Kenya University & The Attorney General [supra), where a three-judge bench of the ELRC declared section 42 (1) null and void. The court ruled that excluding probationers from a fair hearing violates Articles 41 and 47 of the Constitution which guarantee the right to fair labour practices and the right to a fair administrative action respectively. 30.As was observed by Lenaola, J (as he then was) in Samuel Momanyi vs. the A.G. [2014] eKLR, the fundamental rights of employees not to be unfairly terminated as provided in section 45 (1) and (2) of the Act cannot be abrogated during the probation period unless clearly expressed so. This Court in Red Lands Roses Ltd vs. Mugo (Supra) affirmed that employees on probation are still entitled to procedural and substantive safeguards before termination. 31.We can only add that the approach taken by the courts in the above decisions underscores the principle that all laws must be interpreted through the prism of the Constitution. This concept means that statutory law, common law and customary law cannot be read in isolation. They must always be interpreted in a manner that breathes life into constitutional values, principles and human rights. The Employment Act, 2007 is a pre-2010 legislation. Section 7 (1) of Sixth Schedule to the Constitution clearly provides that all law in force immediately before the effective date continues in force and shall be construed with the alterations, adaptations, qualifications and exceptions necessary to bring it into conformity with the Constitution. We have said enough to affirm that the interpretation accorded to section 42 (1) of the Act by the courts in the above cited cases, which we agree with accords with the Constitution. Therefore, we affirm the trial court’s finding that the 1st respondent’s termination was procedurally unfair and illegal for violating her rights guaranteed under Articles 41 and 47 of the Constitution. 32.We now turn to the germane issue in this appeal, which is whether the 1st appellant proved to the required standard her allegations of sexual harassment. After evaluating the entire evidence, the learned judge concluded as follows: 33.In conclusion the court finds and holds that the Claimant was sexually harassed by the 2nd respondent and that the 1st respondent did nothing to investigate her complaints. Further, the Claimant's termination had something to do with her refusal to submit to the 2nd respondent's sexual advances…” 34.Section 6 (1) of the Act states that an employee is sexually harassed if an employer, a representative of the employer or a co-worker engages in two primary forms of conduct: (a) requesting sexual favors linked to promises of preference or threats regarding employment status, whether express or implied; (b) unwelcome sexualized conduct (verbal, written or physical) that creates an intimidating or offensive atmosphere, directly hindering job performance. As was held by the Labour Appeal Court of South Africa in Gaga vs. Anglo Platinum Ltd [2011] ZALAC 29, the legal test in cases of sexual harassment focuses on whether the conduct was objectively unwelcome, not on the perpetrator’s intention. The perpetrator's subjective intent is irrelevant if the recipient confirms the behavior was uninvited. 35.The primary test for establishing whether conduct crosses the threshold from regular workplace interaction to sexual harassment focuses on whether the conduct is unwelcome, of a sexual nature and breaches the victim's dignity. The dual subjective/objective framework was articulated by the U.S. Supreme Court in Harris v Forklift Systems, Inc., 510 U.S. 17 (1993), a landmark U.S. case establishing the dual standard. Justice Sandra Day O’Connor ruled that for sexual harassment to be actionable, it must satisfy two prongs: (a) the Subjective Prong. The victim must personally perceive the environment to be abusive (otherwise, the conduct has not actually altered the conditions of employment). (b) Objective Prong. The conduct must be severe or pervasive enough to create an environment that a reasonable person would find hostile or abusive. 36.The law evaluates the conduct through both the victim’s subjective experience and an objective "reasonable person" standard that is whether a reasonable person in the same circumstances as the complainant would have found the conduct to be unwelcome and offensive. To satisfy the legal threshold, the conduct must meet a specific three-part core test: it must be unwelcome, it must be of a sexual nature and it must violate the victim's dignity. Our superior courts have established that verbal remarks, non-verbal gestures and digital communication are sufficient to constitute sexual harassment, even in the total absence of physical contact. (See RAO vs. O L & Ano. [2025] KEELRC 2485 (KLR) (Cause E744 of 2023). 37.Earlier in this judgment we highlighted the specific instances which were cited by 1st respondent. At the risk of repeating them here, the 1st respondent complained that the 2nd respondent requested her that they work from his house, he hugged her in the open without her consent which was unwelcome contact with her person. He called her and told her that he was missing her in a sexual overture manner. He told her she is sexy. He threatened her with termination in order to coerce her into submitting to his unwarranted and unwelcome sexual acts. She also complained that the 2nd respondent took advantage of her employment status of being on probation to solicit and menacingly induce sexual favors from her. The instances highlighted above are not few. In Ellison vs. Brady, 924 F.2d 872 (9th Cir. 1991), the U.S Supreme Court refined the objective standard, holding that because men and women often perceive sexual conduct differently, therefore, courts must apply a "reasonable woman" standard (or reasonable person of the same gender/circumstances). The inquiry is whether a reasonable woman in the complainant's shoes would consider the conduct sufficiently severe to create an abusive working environment. 38.In Campbell Scientific Africa vs. Simmers [2016] ZALAC, the Labour Appeal Court of South Africa held that the inquiry into whether sexual harassment occurred contains both an objective and a subjective element. The court noted that the subjective element looks at whether the specific complainant found the advances unwelcome, while the objective element tests whether a reasonable person in those exact circumstances would find the conduct offensive, uninvited or a violation of dignity. 39.Applying both the objective and the subjective tests to the peculiar facts of this case, we are satisfied that a reasonable person subjected to the same unwelcome conduct in similar circumstances would find the conduct to be offensive. We are persuaded that the said conduct violates one’s dignity and creates a hostile work environment. Even a single serious incident can meet the threshold. However, multiple incidents as in this case constitute an aggravating factor. 40.At paragraph 3 of the response to the 1st respondent’s claim, the 1st respondent denied that the 2nd respondent was its employee. However, in his witness statement filed in Court on 15th November 2018, the 2nd respondent stated that he was engaged by the appellant as a consultant and he was sent to Kakamega where the appellant had a construction site. He admitted that he interacted with among others, the 1st respondent. Under the Act, an employee is any individual who is employed to work for wages or salary. The appellant and the 2nd respondent did not provide details of the terms of the 2nd respondent’s engagement to remove him from the definition under the Act or to demonstrate that the appellant did not have control over him. 41.The other aggravating factor is the power imbalance. The 2nd respondent was a Senior Project Officer while the 1st respondent was newly employed and on probation. The Constitutional Court of South Africa in McGregor vs. Public Health and Social Development Sectoral Bargaining Council (2021) ZACC 14 emphasized that sexual harassment is fundamentally about the exercise of power. The court highlighted that power imbalances are defined by the intersection of age, gender and status, with "glaring" imbalances often occurring where a senior male exploits a younger female. In this case, the 1st respondent was newly employed and on probation, therefore, she was likely to be prone as did happen, to impermissible sexual harassment. Arising from our analysis of the issue under consideration and our conclusions, we affirm the trial courts finding that sexual harassment was proved to the required standard. 42.The next crucial question is whether an employer can be held liable in cases where an employee is sexually harassed at the workplace by a fellow employee. As established in cases such as National Union of Metalworkers of South Africa v Passenger Rail Agency of South Africa [2021] ZALCJHB 312, an employee must prove four distinct criteria to hold an employer liable. These are: (a) The Conduct Occurred. The sexual harassment was perpetrated by another employee at the workplace or within the course of employment. (b) Immediate Reporting. The victim reported the harassment to the employer immediately. (c) Failure to Act. The employer failed to take the necessary proactive steps to eliminate the conduct and protect the employee. (d) Failure to Prove Statutory Compliance. The employer cannot prove that it did everything "reasonably practicable" to prevent the offending employee from contravening the Act. 43.Other than claiming that it had a sexual harassment policy in place, there was no attempt to demonstrate whether the employees were taken through it either jointly or individually upon being employed. Also, there was no attempt to demonstrate the protective measures the employer had put in place. We can only add that the threshold for employer liability in cases of this nature is triggered if the employer fails to take reasonable protective steps to prevent the harassment after it is brought to their attention. In this case, the only notable step the employer took after the 1st respondent raised her complaint was to terminate her employment, a decision it described as irreversible. 44.Lastly, we will address the merits or otherwise of the compensation awarded to the 1st appellant. In addressing this issue, we find useful guidance in the UK Court of Appeal decision in Vento vs. Chief Constable of West Yorkshire Police [2002] EWCA Civ 1871, a foundational decision establishing that compensation for injury to feelings must be structured into three distinct bands based on severity. The court assesses the impact of the harassment on the victim (their distress, anxiety and loss of dignity) rather than punishing the employer. Considering the incessant acts highlighted earlier committed by the 2nd respondent to the 1st respondent, we find no reason to interfere with the trial court’s award of Kshs.1,000,000/-. As for the award of one month’s salary in lieu of notice of Kshs.112,500/- and the twelve month’s salary as compensation for unfair termination of service in the sum of Kshs.1,350,000/-, we find no reason to fault the learned judge for awarding the said sums. It has not been shown that the said awards are extremely high or the learned judge improperly exercised his discretion to merit this Court’s interference. Indeed, the learned Judge after finding that the 2nd respondent had sexually harassed the 1st respondent correctly observed that the appellant did nothing to investigate her complaints and that her dismissal had something to do with her refusal to submit to the 2nd respondent’s sexual advances. He cannot, therefore, be faulted for concluding that “a proper case has been made for an award of maximum compensation for unfair termination of service and sexual harassment.” 45.Arising from our conclusions on each and every issue discussed above, we are persuaded that the appellant’s appeal is devoid of merit. Accordingly, we affirm the judgement delivered by Abuodha, J. on the 20th February 2020 in Eldoret ELRC No. 265 of 2018. The appellant shall pay the 1st respondent the costs of this appeal and the proceedings before the trial court. DATED AND DELIVERED AT NAKURU THIS 29TH DAY OF MAY, 2026.J. MATIVO................JUDGE OF APPEALM. GACHOKA C.Arb, FCIArb.................JUDGE OF APPEALW. KORIR................JUDGE OF APPEALI certify that this is a true copy of the original.Signed.DEPUTY REGISTRAR